GENERAL ARTICLES

CURIOUS CASES

A famous counsel draws on his memoirs to recall personalities and conflicts and the drama of a murder trial

I.F.HELLMUTH,K.C. November 15 1943
GENERAL ARTICLES

CURIOUS CASES

A famous counsel draws on his memoirs to recall personalities and conflicts and the drama of a murder trial

I.F.HELLMUTH,K.C. November 15 1943

CURIOUS CASES

GENERAL ARTICLES

A famous counsel draws on his memoirs to recall personalities and conflicts and the drama of a murder trial

I.F.HELLMUTH,K.C.

In his 64 years before the Bar Mr. Hellmuth associated with many of the prominent figures of the Canadian Bench. In this article he draws upon his memoirs to recall the events he witnessed and tells, for the first time, his part as defense counsel in the Steinberg murder trial.

AT THE Brantford, Ont.., nonjury sittings, held many years ago, before the late Mr. Justice Thomas Ferguson, I was a witness to a rather remarkable incident.

While waiting in the courtroom for a case in which I had been retained, an action was begun in which both parties were Chinese. Neither the plaintiff nor defendant nor the witnesses spoke English so an interpreter was necessary.

The procedure was for the examining counsel to put the question in English to the interpreter who translated it to the witness. The interpreter then took the witness’s answer and translated it into English.

During the cross-examination of one of the witnesses, I noticed the judge appeared to be more than ordinarily interested. He held a pen poised above the blotter resting on the desk before him, and as counsel proceeded with a further question, his hand gripped the pen more tensely. He turned his face toward the interpreter and waited for the translation of the answer to the question.

When this translation was completed the judge drove the pen downward on to the blotter, breaking off the nib points, and roared: “It’s a damned lie!

The witness said the very opposite.”

The amazement of the spectators in court was as nothing to the confusion of the fraudulent and perjured interpreter. He certainly had not counted on a judge who understood Chinese, for he did not know that in his very early youth the occupant of the Bench had been in the California Gold Rush where he had learned to speak Chinese from the coolies employed in the mines.

A charge of perjury was laid against the interpreter when it was discovered that he had been bribed to pervert the evidence of the witness under examination.

Mr. Justice Ferguson (1838-1904) was a man of massive proportions. He was enormously tall, of huge bulk and possessed a giant’s head. I often wondered whether his tall hats did not have to be specially made in order to fit him. His movements were ponderous— his weight enormous. It was said that the ordinary hotel bed was not strong enough to bear his weight,

and that once he had gone completely through a cab in which he was being driven to the station.

As a young man he had the reputation of being quite an athlete, slim of figure, and it was said that in the days when he was prospecting for gold he was the only man in the camp who, standing in an empty flour barrel, could leap up and out from it.

But if in later years his sprightly youthfulness had disappeared there was no question of his intellectual strength. His judgments always commanded respect. It is true he was slow and deliberate in his utterances, but he was also sure in his statements of fact and conclusions of law. He was averse to elaboration, by counsel, of matters that were not really pertinent to the issue, and long arguments wearied him.

On one very hot June day he was sitting in Court hearing a number of more or less tedious motions.

Perspiration was running down his large face. A young counsel was presenting an application for prohibition to a Division Court judge. The amount involved in the suit was a mere trifle, something under $2, but the counsel was taking the matter very seriously and had occupied more than an hour in his presentation. Suddenly the judge raised his head and said very slowly: “It seems to me that the importance of a case is in inverse ratio to the length of the argument, and if we could find a case about nothing at all, I suppose the argument would go on forever and ever.” This so stunned the youthful advocate that without any further remarks he suddenly sat down.

In the following incidents Mr. Hellmuth recalls the devastating wit of the late Chief Justice John Douglas Armour of Ontario (1830-1903).

The case was an aftermath of one of London’s Dominion elections. To those not familiar with the way in which London, Ont., once took its politics, it would seem impossible to conceive the animosities that existed between Conservatives and Liberals. Every Liberal, or Grit, was looked upon as a personal enemy of every Conservative, or Tory, and the amenities of life were practically suspended between members of the two parties at election time.

As an illustration let me refer to a question that arose in regard to the effect of certain so-called tendered ballots. The dispute was of a legal nature and I was retained on behalf of the Conservative Party, while a Toronto counsel acted on behalf of the opposing Liberals.

At one o’clock, being well acquainted with the Toronto counsel, I leaned across the table and asked him if he would have lunch with me. He replied, “With pleasure.” Our remarks were received with an apparent gasp of horror at the idea of the Conservative and Liberal lawyers contemplating such a thing as friendly intercourse. When we emerged from the court house an angry crowd followed with vigorous comments implying that there were collusion and treachery; indeed, one, bolder than the rest, suggested we should both be put upon a rail and run out of town.

In another case an action had been brought by a man named Collins against a deputy returning officer named Fleming, claiming penalties against the latter for having refused to record his vote except by way of tendered ballot. It appeared that two brothers, one an ardent Conservative and the other an equally earnest Liberal, had both been entered on the electoral roll for the same property. The Conservative Collins managed, through the assistance of friends, to get into the polling booth before his brother and his Continued on page 26

Continued from page 24 ballot was duly received by the deputy returning officer. Rut when later the Liberal Collins arrived on the scene the deputy returning officer declined to receive his vote except by way of tendered ballot. This led to disputes and accusations and finally to the launching of an action by the Liberal brother.

The trial took place before the late Chief Justice Armour. From the very outset the trial judge showed marked hostility to the defense, not only denouncing the action of the defendant in vigorous language, but turning into ridicule all arguments advanced by me, greatly to the delight of the many Liberals in the courtroom.

My main ground was that the deputy returning officer must be accorded some discretion as to receiving or rejecting votes; while the trial judge flouted the idea of the deputy returning officer being anything but an automaton. Becoming desperate at the judge’s attitude, I felt that if the case was to be lost I might as well let myself go and addressing the court said:

“Perhaps your lordship will permit me to say that the deputy returning officer cannot properly be described as an automaton. Suppose, for instance, your lordship should go to a polling booth and say, T, John Douglas Armour, desire to record my vote,’ would not the deputy returning officer be entitled to say, ‘You are Chief Justice of the Queen’s Bench and as such are disqualified from voting.’ ”

The judge answered, “Why suppose such a ridiculous thing. No judge would be such a fool as to become liable for a $3,000 penalty.”

“Well,” I pursued, “supposing that a woman appeared in the polling booth and said, T am Tom Jones,’ his name and residence being on the list; surely the deputy returning officer would have the right to say, T cannot take your vote, since you are a woman and cannot be Tom Jones.’ ”

Like a flash came the reply of the Chief Justice—“What do you suggest, Mr. Hellmuth, a scrutiny of her person?”

There was, if one may dare to say so, nothing but flippancy in these replies of the Chief Justice. The decision was promptly given against my client and it was with sombre feelings that I left the courthouse and proceeded toward my office.

On my way there a heavy hand fell upon my shoulder and turning round I saw the Chief Justice. He said, “Hellmuth, you are looking very glum. What is the matter?”

Being now out of court and knowing that in that case one might say with impunity what would not be tolerated inside the courtroom I replied, “Anybody would be feeling glum who had suffered such a drubbing as you gave me. Of course, there is no object in quarrelling with your decision, but you need not have berated me as you did, and made me look a fool before my client.”

He said, “Oh, don’t let that bother you. When I was practicing in Cobourg I had a case for a client and advised him we could not lose, but when we went into court the judge not only decided against me but knocked me about far harder than you were treated. When we came out of court my client looked at me scornfully and said, ‘You are a fine lawyer! You told me we couldn’t lose the case.’ To which I replied, how could I tell they would send an old fool of a judge from Toronto to try the case? You go and tell your

client the same.” I said, “I will,” and I did.

Far be it from me to convey the impression that Chief Justice Armour was not an eminently fair judge. He had, like all human beings, his weaknesses and prejudices and one of these was a marked tendency to help the underdog. His wit was most incisive, though sometimes a little cruel.

Two judges were appointed at the same time to the High Court Bench. One of them had the misfortune as a young man to lose his leg and thereafter had to use an artificial limb. The other, while quite sound in body, had not the highest reputation for brilliancy. Chief Justice Armour on being asked what he thought of these two appointments replied, “I prefer the man with the wooden leg to the man with the wooden head.”

When a certain judgment he had given had come before the Court of Appeal and had been affirmed, a friend immediately rushed up to the Chief Justice saying, “The Court of Appeal has affirmed your recent judgment in

-vs-.” To which Chief

Justice Armour cryptically replied, “I still think I am right.”

Two religious bodies got into a dispute over some church property and the quarrel became so violent that both sides determined the matter could only be settled by recourse to law.

Counsel for the opposing parties agreed between themselves to attend Chief Justice Armour’s chambers and ascertain whether he would take the case. On entering the Chief Justice’s sanctum, counsel explained the nature of the dispute and their desire that he would be good enough to hear the case.

His answer was, “As this is a religious dispute, you had better go and get a good heathen to try it.”

One of the counsel, who did not lack in wit, promptly replied, “Oh, both my friend and myself had just the same view and we therefore came to your lordship.”

It may well be thought that my admiration for the late Chief Justice Armour seems somewhat excessive, but that will not be so to those who appeared most often before him. His mental equipment combined with his knowledge of, and sympathy with, human nature made him one of the greatest figures that ever graced the Ontario Bench; and as a trial judge he has been seldom equalled but never excelled.

Mr. Hellmuth continues his reminiscences with an account of the trial at Toronto, in 1930, of Abraham Steinberg for the murder of Samuel Goldberg. Mr. Hellmuth acted as defense counsel for Steinberg.

Was Abraham Steinberg a murderer? The man was tried, convicted and hanged. You may say that settles it. But does it? Some innocent men have suffered the extreme penalty. Granted, they form an almost insignificant minority, but again can it be said that the wrongful death of one innocent man is insignificant?

The evidence in this case was entirely circumstantial. It has been asserted that this type of evidence is the most satisfactory, since witnesses may lie but circumstances cannot. This, however, is only a half-truth for circumstances, if they cannot lie, can without doubt be misleading.

There was a comparatively small stonecutter’s business carried on in downtown Toronto. It was originally managed by three partners, of whom Continued on page 28

Continued from page 26 Steinberg was one. Some disputes had arisen between Steinberg and one of the other partners. This partner was a dominating and aggressive character and he persuaded the third partner to take his view, that Steinberg had not been acting in the best interests of the concern, with the result that Steinberg severed his connection with the partnership and the other two continued the business without him.

One evening some little time after the severance of relations, a fire broke out in the plant. The firemen were summoned and after vigorous efforts the flames were extinguished. Upon entering the main office room they discovered the body of a man lying slumped forward over a large writing desk. His face and head were partially burned and at first it was supposed that his death had been caused by the fire. Closer examination, however, revealed a bullet wound in his head.

Further investigations were made by the police with the result that Steinberg was arrested and charged with the murder.

The evidence for the prosecution was entirely circumstantial. It was shown that there had been a dispute between the dead man and the accused of such a trivial nature that it could hardly be called a quarrel. There was nothing, however, to indicate that such a dispute furnished sufficient motive for the crime.

The Crown contended that the front door of the building was generally kept locked and only unlocked by the partners, each of whom, including Steinberg, had a key. When the firemen entered the building, according to the Crown, the front door was unlocked. This really amounted to very little as it was quite possible that the last person on this occasion might have left the door unlocked. It was most unlikely that if Steinberg had had to open the door with his key he would

not have had the sense to relock it s when he left.

3 A more serious piece of evidence was r the finding, some weeks after the crime, 3 of a pistol lying in the open yard of

i premises which once belonged to

y Steinberg. According to experts, the 3 bullet extracted from the deceased’s t head had been fired from that pistol. It i was brought out in cross-examination ) that the pistol had been kept in an open cupboard in Steinberg’s house, where it r had often been seen by not only his 3 own family but by many of his friends. 3 And again it may be observed that he 3 would not likely use the weapon which i everyone knew he possessed and then, r after committing the crime, throw it y into a place where it was certain to be y found. It looked far more likely that it r had been planted there by someone who 1 wished to throw suspicion upon the 3 accused.

, Finally a witness was called who stated that he lived in a house immedir ately facing the premises where the fire ; had occurred. He had been sitting at a 3 window in an upper story and, glancing across the street, he had seen a man in a 3 long grey overcoat stop, take out a i key, unlock the door and enter. He i had not observed the man leave the i building, but some 20 minutes or half î hour after the entry he had noticed , flames issuing from the premises. He ; was able to fix the time when he first ; noticed the fire at 6.30 in the evening.

This would necessarily fix the crime : somewhere between 20 minutes or half

; an hour before that. On cross-examina> tion this witness was not only quite ; positive about the man being clad in a long grey coat but also that he was i a tall man, probably not less than six feet. Steinberg on the other hand was a short man, in the neighborhood of five Ï feet, four inches, or five feet, six inches.

The Crown had accepted as a fact i that the killing must have occurred between definite hours. It was vital, or at all events essential, to show that the

accused could not have been at, or near, the scene of the crime at the time fixed by the Crown for its commission.

We had what seemed to be an almost airtight alibi. A man who owned a clothing store some considerable distance from the place where the crime had been committed stated that the accused had come into his place to pay him a visit somewhere about half-past five and had remained there until seven. In this he was corroborated by his wife and by a third party who stated he had had business with the proprietor of the store and had been introduced to Steinberg who was chatting with the proprietor and his wife. The witness said he and the proprietor had discussed their business in the presence of the wife and the accused, and that before leaving he had looked at his watch and it was then some ten minutes to seven.

These witnesses were subjected to a severe cross-examination but their testimony remained unshaken. It was suggested, most unfairly it seemed to me, that all being Jewish compatriots of the accused, they were desirous of helping him. This was indignantly denied by the witnesses. Nevertheless, it may have had some influence upon the minds of the jury.

There were other witnesses for the defense who were able to assert how Steinberg was dressed on the evening in question, and that he never possessed a long coat of grey.

The judge’s charge was distinctly hostile to the defense and the accused received no benefit from the tone in which it was delivered. He was careful to point out one or two slight variations in the accounts of the alibi witnesses, although to many they would be looked upon as evidence of a true, not madeup, story.

The jury could not reach an agreement and a new trial was ordered.

This second trial came before the same presiding judge. The evidence was much the same as before; indeed, I cannot remember anything materially new. The charge of the judge, however, was, if possible, more hostile to the defense, and this time the jury brought in a verdict of guilty.

An appeal failed as did also a final appeal to the Supreme Court of Canada.

The last legal hope vanished but efforts were made to obtain executive clemency and petitions, praying that this might be exercised, were signed by thousands, including men of all classes and creeds. The trial had aroused widespread interest and opinions had varied greatly as to whether there had been sufficient proof of the accused’s guilt. The then Minister of Justice refused to interfere and the sentence of death was carried out on July 14, 1931.

Steinberg to the end maintained his innocence, not only to his relations and friends but also to the Rabbi of the Synagogue which he had attended, and to the jail Chaplain as well as to myself.

Just before his execution he made a startling utterance to the following effect:

“I am not the first innocent Jew who has been wrongfully done to death. Some 1,900 years ago another innocent Jew, now revered by all Christians, was also put to shameful death.”

It is hard to believe that such sentiments or language could have issued from the lips of a guilty man about to meet his Maker. No one but his Creator actually knows the truth.