CALTON: You were sober, I suppose?
WITNESS (indignantly): Yes; quite sober.
CALTON: Ah! You did not have a drink, say at the Oriental Hotel, which, I believe, is near the rank where your cab stands?
WITNESS (hesitating): Well, I might have had a glass.
CALTON: So you might; you might have had several.
WITNESS (sulkily): Well, there’s no law against a cove feeling thirsty.
CALTON: Certainly not; and I suppose you took advantage of the absence of such a law.
WITNESS (defiantly): Yes, I did.
CALTON: And you were elevated?
WITNESS: Yes; on my cab.—(Laughter.)
CALTON (severely): You are here to give evidence, sir, not to make jokes, however clever they may be. Were you, or were you not, slightly the worse for drink?
WITNESS: I might have been.
CALTON: So you were in such a condition that you did not observe very closely the man who hailed you?
WITNESS: No, I didn’t—there was no reason why I should—I didn’t know a murder was going to be committed.
CALTON: And it never struck you it might be a different man?
WITNESS: No; I thought it was the same man the whole time.
This closed Royston’s evidence, and Calton sat down very dissatisfied at not being able to elicit anything more definite from him. One thing appeared clear, that someone must have dressed himself to resemble Brian, and have spoken in a low voice for fear of betraying himself.
Clement Rankin, the next witness, deposed to having picked up the prisoner on the St. Kilda Road between one and two on Friday morning, and driven him to Powlett Street, East Melbourne. In the cross-examination, Calton elicited one point in the prisoner’s favour.
CALTON: Is the prisoner the same gentleman you drove to Powlett Street?
WITNESS (confidently): Oh, yes.
CALTON: How do you know? Did you see his face?
WITNESS: No, his hat was pulled down over his eyes, and I could only see the ends of his moustache and his chin, but he carried himself the same as the prisoner, and his moustache is the same light colour.
CALTON: When you drove up to him on the St. Kilda Road, where was he, and what was he doing?
WITNESS: He was near the Grammar School, walking quickly in the direction of Melbourne, and was smoking a cigarette.
CALTON: Did he wear gloves?
WITNESS: Yes, one on the left hand, the other was bare.
CALTON: Did he wear any rings on the right hand?
WITNESS: Yes, a large diamond one on the forefinger.
CALTON: Are you sure?
WITNESS: Yes, because I thought it a curious place for a gentleman to wear a ring, and when he was paying me my fare, I saw the diamond glitter on his finger in the moonlight.
CALTON: That will do.
The counsel for the defence was pleased with this bit of evidence, as Fitzgerald detested rings, and never wore any; so he made a note of the matter on his brief.
Mrs. Hableton, the landlady of the deceased, was then called, and deposed that Oliver Whyte had lodged with her for nearly two months. He seemed a quiet enough young man, but often came home drunk. The only friend she knew he had was a Mr. Moreland, who was often with him. On the 14th July, the prisoner called to see Mr. Whyte, and they had a quarrel. She heard Whyte say, “She is mine, you can’t do anything with her,” and the prisoner answered, “I can kill you, and if you marry her I shall do so in the open street.” She had no idea at the time of the name of the lady they were talking about. There was a great sensation in the court at these words, and half the people present looked upon such evidence as being sufficient in itself to prove the guilt of the prisoner.
In cross-examination, Calton was unable to shake the evidence of the witness, as she merely reiterated the same statements over and over again.
The next witness was Mrs. Sampson, who crackled into the witness-box dissolved in tears, and gave her answers in a piercingly shrill tone of anguish. She stated that the prisoner was in the habit of coming home early, but on the night of the murder, had come in shortly before two o’clock.
CROWN PROSECUTOR (referring to his brief): You mean after two.
WITNESS: ‘Avin made a mistake once, by saying five minutes after two to the policeman as called hisself a insurance agent, which ‘e put the words into my mouth, I ain’t a goin’ to do so again, it bein’ five minutes afore two, as I can swear to.
CROWN PROSECUTOR: You are sure your clock was right?
WITNESS: It ‘adn’t bin, but my nevy bein’ a watchmaker, called unbeknown to me, an’ made it right on Thursday night, which it was Friday mornin’ when Mr. Fitzgerald came ‘ome.
Mrs. Sampson bravely stuck to this statement, and ultimately left the witness-box in triumph, the rest of her evidence being comparatively unimportant as compared with this point of time. The witness Rankin, who drove the prisoner to Powlett Street (as sworn to by him) was recalled, and gave evidence that it was two o’clock when the prisoner got down from his cab in Powlett Street.
CROWN PROSECUTOR: How do you know that?
WITNESS: Because I heard the Post Office clock strike.
CROWN PROSECUTOR: Could you hear it at East Melbourne?
WITNESS: It was a very still night, and I heard the chimes and then the hour strike quite plainly.
This conflicting evidence as to time was a strong point in Brian’s favour. If, as the landlady stated, on the authority of the kitchen clock, which had been put right on the day previous to the murder, Fitzgerald had come into the house at five minutes to two, he could not possibly be the man who had alighted from Rankin’s cab at two o’clock at Powlett Street.
The next witness was Dr. Chinston, who swore to the death of the deceased by means of chloroform administered in a large quantity, and he was followed by Mr. Gorby, who deposed as to the finding of the glove belonging to the deceased in the pocket of the prisoner’s coat.
Roger Moreland, an intimate friend of the deceased, was next called. He stated that he had known the deceased in London, and had met him in Melbourne. He was with him a great deal. On the night of the murder he was in the Orient Hotel in Bourke Street. Whyte came in, and was greatly excited. He was in evening dress, and wore a light coat. They had several drinks together, and then went up to an hotel in Russell Street, and had some more drinks there. Both witness and deceased were intoxicated. Whyte took off his light coat, saying he felt warm, and went out shortly afterwards, leaving witness asleep in the bar. He was awakened by the barman, who wanted him to leave the hotel. He saw that Whyte had left his coat behind him, and took it up with the intention of giving it to him. As he stood in the street some one snatched the coat from him and made off with it. He tried to follow the thief, but he could not do so, being too intoxicated. He then went home, and to bed, as he had to leave early for the country in the morning. In cross-examination:—
CALTON: When you went into the street, after leaving the hotel, did you see the deceased?
WITNESS: No, I did not; but I was very drunk, and unless deceased had spoken to me, I would not have noticed him.
CALTON: What was deceased excited about when you met him?
WITNESS: I don’t know. He did not say.
CALTON: What were you talking about?