Herbert Rowse Armstrong

Herbert Rowse Armstrong was convicted of the murder of his wife 48-year-old Katharine Mary Armstrong and sentenced to death. He poisoned her with arsenic at Hay-on-Wye on 22 February 1921 after having previously drawn up a new will for her in July 1920, leaving everything to him and no provision for their children. After killing her he went on holiday to Italy. Herbert Armstrong had been a solicitor. He was admitted in 1895, and for about 16 years he had been Clerk to the Justices at Hay-on-Wye, and for several years he had been the only solicitor in the village. He had lived at Mayfield, in Cusop, with his wife and three children and was known for being a keen gardener and for being obsessed with eradicating garden weeds and keeping a stock of weed-killer for that purpose. The house, Mayfield, was described as having had significant grounds and having 800 square yards of paths. It was noted that whilst Herbert Armstrong had been serving in the war that Katharine Armstrong and her children went to Teignmouth, letting Mayfield out, and that during her time there she had suffered from almost chronic indigestion. She was also said to have suffered from rheumatism, neuritis, and loss of power in her hands as well as suffering from loss of power in her feet, and on 17 January 1917 she made out a will in which she left her property ultimately to be divided among her children, leaving only an annuity of £50, subsequently £100, to her husband. xxx12xxx It was further noted that there was evidence that when Katharine Armstrong rejoined her husband in May 1919 that she was still suffering from indigestion and from neuritis and loss of power in her hands and feet. Although he was convicted of the murder of his wife, he had initially been indicted on a charge of attempting to murder another solicitor by giving him arsenic on 26 October 1921 and it was only through that charge that the murder of his wife became suspected and her body ordered to be exhumed and the charge of murder was added. Evidence relating to the attempted murder charge was used against him in regard to the murder charge. However, his defence challenged the use of that information and it was argued in a point of law that it could be used because it defined a pattern, system or design, rebutting the idea that he had had the poison simply for innocent purposes. The argument against the evidence being used was that the notion that when a person was on trial they were to be tried exclusively on the charge at hand, and not on similar acts. The legal framework around evidence of similar acts was in part defined as such: xxxqxxx The rule of rejecting all manner of evidence in criminal prosecutions that is foreign to the point in issue is founded on sound sense and common justice. For no man is bound at the peril of his life or liberty, fortune or reputation, to answer at once and unprepared for every action of his life. xxxqxxx This for example, meant that evidence such that he may have beaten another wife in the past, which was not suggested in anyway, but if he had, could not have been used against him in a charge of poisoning his wife. However, the fact that there was evidence that he had attempted to poison the other solicitor was allowable because it related directly to the nature of Katharine Armstrong's death by poisoning and rebutted the claim that he had had the poison for wholly innocent purposes. It was further noted that the decision to allow rebutting evidence was at the judges direction and could only be challenged at appeal, which it was, but the appeal was refused. It was noted that the facts in the attempted murder case had such an important bearing on the question of his guilt in the case of the murder of his wife that it was thought convenient to first consider the facts of the attempted murder case, that of the attempted murder of the other solicitor. Other Solicitor Both Herbert Armstrong and the other solicitor had served in the War. The other solicitor took up practice in Hay-on-Wye in 1919, whilst Herbert Armstrong returned to Hay-on-Wye in July 1920. After arriving in Hay-on-Wye the other solicitor married the daughter of a local chemist in June 1920, it being noted that the chemist was the one that Herbert Armstrong had bought the arsenic from. It was found that Herbert Armstrong had purchased arsenic from the chemist over many years, but the more important of the purchases were: 7 June 1919: ½lb of arsenic coloured with charcoal. 4 May 1920: 4 gallons of powdered weedkiller. 4 August 1920: 3 tins of powdered weedkiller. 11 January 1921: ¼lb of arsenic which was almost certainly white and not coloured with charcoal. xxx8xxx During 1921, the other solicitor had been engaged for the purchasers of some land, and Herbert Armstrong was similarly engaged by the vendors. The purchasers had paid about £500 deposit to Herbert Armstrong, but they couldn't get completion of their contract and they threatened to rescind and asked for the return of the deposit. In September 1921 the other solicitor received an anonymous box of Fullers' chocolates which he used at dinner, however, a sister-in-law of the other solicitor who partook in one was violently ill throughout the night with vomiting and purging. Although the sending of the chocolates couldn't be traced to Herbert Armstrong, analysis showed that two of the remaining chocolates had been doctored with white arsenic, and the incident was described as significant at Herbert Armstrong's later trial. On 26 October 1921, after several pressing invitations, the other solicitor went to tea with Herbert Armstrong at Mayfield. Herbert Armstrong had been alone at the time. For tea they had buttered scones and a plate of cut buttered current loaf. The other solicitor said that Herbert Armstrong placed one of the scones on his plate, saying 'excuse fingers', and that he in fact ate up the whole of the plate of buttered currant loaf, to which he was partial. It was noted that although the building deal had been due to close soon, that the contract and the £500 were not discussed. However, shortly after returning home the other solicitor felt nausea and after dinner, which he ate with reluctance, he was taken violently ill with vomiting and purging, which continued throughout the night. A doctor treated him in the morning for a bilious attack, but on his suspicions being aroused by a remark made by the chemist, and also on learning of the anonymous box of chocolates and the illness of the sister-in-law who ate one, the doctor sent a specimen of the solicitors urine, taken on 30 September 1921, and the remainder of the box of chocolates, off for analysis. It was then found that of the 32 chocolates left in the box that 2 had been doctored, an end having been cut off and a little tunnel bored into the cream or nougat, and about 2 grains of white arsenic having been inserted in each, with the cap of chocolate having then been replaced. It was further stated that the arsenic had been inserted in such a way that left marks that corresponded with the nozzle of a weed-eradicator used by Herbert Armstrong. The 17oz of urine had contained 1/33 of a grain of arsenic which was described as an appreciable quantity, and according to one analyst, was just what he would have expected the kidneys to have been dealing with over four days after the administration of a considerable, and possibly fatal dose. It was noted that 1/33 of a grain was far more than could be accounted for by a carelessly washed bottle, which might have contained something with an arsenical impurity, which might have been expected to be a mere trace, maybe 1/1000 of a grain. Further, the analyst that had provided the bottle for the specimen said that he had carefully washed it out before it was used for that purpose. On receipt of the analysis, the Director instituted police inquiries, however, it was noted that they would need to be discrete as if Herbert Armstrong was guilty, they did not want to alarm him and give him the opportunity to destroy evidence, but that if he was innocent that they didn't want to cause unnecessary scandal. As such, detectives were sent after dark to call on the doctor and the chemists, and it was noted that whilst those investigations had been ongoing that Herbert Armstrong had been continuing to invite the other solicitor over for lunch, but in the knowledge of the investigation he had declined. During the investigation a full statement from the doctor that had treated the solicitor was taken, which included a statement of the circumstances attending to the death of Katharine Armstrong ten months earlier on 22 February 1921, for which he had certified her death as being due to heart disease, nephritis and gastritis, but had since, on being alerted to the concerns, expressed the opinion that all her symptoms were consistent with arsenical poisoning. It was therefore suggested that Herbert Armstrong should be arrested on the charge of attempted murder and that Katharine Armstrong's body should forthwith be exhumed for examination. Herbert Armstrong was questioned by a police inspector on 31 December 1921, at which time he made a statement in which he said that he had used up the whole of the ½lb of arsenic that he had bought in 1919, by mixing it with caustic soda for weedkiller. He added that he had only used a small amount of ¼lb of arsenic bought in January 1921 and that the remainder would be found in a cupboard at his house. He added that the ¼lb had been mixed with charcoal and that that arsenic had been the only poison in his possession anywhere. He was then arrested and searched. It was noted that in a pocket book, caught up in the flap of an envelope, there had been a small paper packet containing 3¾ grains of white arsenic. However, the police were not immediately aware of that at the time and the pocket book and letters contained in it were done up in a loose brown paper parcel and placed on the writing table of his office. Herbert Armstrong was then allowed to sit down at the table and open some business letters, and whilst he was doing that he was seen to be fumbling with the brown paper parcel which he opened and was told to leave it alone. When the parcel was later examined the little packet of white arsenic was found and it was sent off for analysis. It was found that for many weeks prior to his arrest, Herbert Armstrong had been persistently inviting the other solicitor to come to tea with him at his office, and had taken steps to see that buttered scones would be provided for tea. As such, it was submitted that he had been carrying that little packet of white arsenic around in his pocket in order to insert it into a buttered scone if the opportunity afforded. When Katharine Armstrong's body was exhumed, 3.21 grains of arsenic were actually found in her body, 2.12 grains being found in her liver and comparatively large quantities found in her kidneys and caecum. The large quantities in the three organs proved, according to an analyst, that a large dose must have been taken by Katharine Armstrong within 24 hours of her death. Katharine Armstrong The history of Katharine Armstrong's case was briefly as follows. She had been an active business-like woman, enjoying very fair health, and in 1917, whilst Herbert Armstrong had been absent on service, she made a will which was written in her own hand and which made elaborate provision for her children and leaving Herbert Armstrong merely a small annuity. Herbert Armstrong claimed that he had never seen that will, but his claim was doubted, as a draft of it was found in the house after her death. It was thought that Katharine Armstrong had at one time expressed the opinion that she had not made sufficient provision for her husband, and in July 1920, within eight days of Herbert Armstrong returning home, Herbert Armstrong said she made another will, revoking all other former wills, and leaving all her property to him. That will was later proved by Herbert Armstrong, and he took the whole of her estate, some £2,700. The will had been drawn up and written by Herbert Armstrong and was purported to have been witnessed by two servants in the house. However, one of them said that she was very uncertain as to whether she saw Katharine Armstrong sign the will, whilst the other was quite certain that she didn't see Katharine Armstrong sign it, and that when she was signing her own name she hadn't known that she had been witnessing a will. The doctor that had treated Katharine Armstrong said that he saw her on 1 August 1920 at which time she was quite well, but that on 15 August 1920 Herbert Armstrong asked him to prescribe a sleeping draught for her and that by 22 August Katharine Armstrong had developed delusions accompanied or caused by sickness and vomiting, which he at the time ascribed to biliousness. Later that day the doctor, and another doctor certified Katharine Armstrong as insane and she was removed in a car to a private asylum, Barnwood Asylum. She had been very ill at the time and actually vomited in the car. At the time she had thought that she had been being taken to a nursing home for a rest cure. Whilst in the asylum she suffered badly from peripheral neuritis, which was one of the sequels of arsenical poisoning, and although her physical condition improved, her mental condition remained unsatisfactory up to 11 January 1921. At the trial, the prosecution noted the following dates as being important: 1 August 1920: Katharine Armstrong quite well. 4 August 1920: Weed killer purchased. 15 August 1920: Katharine Armstrong was taken ill. 22 August 1920: Katharine Armstrong was taken to Barnwood Asylum, and at that time was suffering from the effects of arsenical poisoning. However, it was noted that Herbert Armstrong had not himself purchased the weedkiller and that the gardener had done so and the gardener had said that he had all of it except for a small half-tin which he had left in the garden shed. It was also put forward by the defence that Katharine Armstrong had not been quite well on 1 August 1920 and that she had been suffering already from indigestion, neuritis and loss of power for the previous four or five years. It was noted that for about a month whilst in the asylum, she had been taking a tonic with a little arsenic in it, but it was stated that that could not have accounted in any way for her death or for the arsenic found in her body, and neither was it suggested by the defence that it did. However, the pathologist admitted that if a person had been admitted after having suffered from arsenical poisoning and was then given a special tonic containing one-seventh of a grain of arsenic that it would have retarded their progress and might make them worse. However, it was further noted that although she was said to have been suffering from arsenic poisoning at the time that the fact that she had been taking a tonic that contained arsenic and still improved, suggested that she had not been suffering from arsenic poisoning at that time. On 11 January 1921, the very day that he purchased the ¼lb of white arsenic, Herbert Armstrong wrote to the superintendent of the asylum pressing that Katharine Armstrong might be allowed to return home. The superintendent demurred to the absolute discharge of Katharine Armstrong, stating that he would have preferred that she first be allowed out on leave on probation. However, Herbert Armstrong insisted and Katharine Armstrong returned home on 22 January 1921. xxx11xxx At the time she had been far from well, complaining of loss of power in her limbs, and her delusions persisted. She had a part time nurse for a few days, but upon Katharine Armstrong asking her if it would be sufficient, for anyone wanting to kill themselves, to throw themself from the attic window, the nurse said she thought that it was a case for a mental nurse, and another nurse was brought in. It was noted that Katharine Armstrong also said something about the attic window to the new nurse, but it was stated that the suggestion of those suicidal tendencies and the suggestion that she had committed suicide by taking a poisonous dose of arsenic, seemed to be disposed of by the fact that at 4am on 22 February 1921, six hours before her death, that she had said to the nurse: xxxqxxx I am not going to die, Nurse, am I, because I have everything to live for, my children and my husband. xxxqxxx Throughout her illness Katharine Armstrong suffered a great deal from vomiting and purging, and the persistent vomiting puzzled the doctor treating her so much so that, although it could not be given in evidence, that the nurse said that on one occasion he remarked to her: xxxqxxx If it were not a private case I should like to use a stomach pump to wash out the stomach. xxxqxxx Katharine Armstrong died at 10am on 22 February 1921. Shortly before her death Herbert Armstrong had left the office and gone to his office, and didn't return until lunch time. He then proved the will and went abroad to Italy for a holiday. Shortly after his return in May 1921 he proposed to a lady whom he had met at Bournemouth before Katharine Armstrong's death. Trial At the trial, the defence was that Katharine Armstrong had undoubtedly died from arsenical poisoning, but that she had taken it herself, probably on 16 February, which was about the last day on which she could have got out of bed, it being noted that for certain that for the four days before her death she had been unable to feed herself and could not possibly have got out of bed to find and take arsenic. However, the evidence of the analyst showed that the amount of arsenic in her organs in which the greater part of it was found, namely the liver, the kidneys and the caecum, showed that a large dose of arsenic must have been taken by Katharine Armstrong within 24 hours of her death and that it was clear that she could not have taken the arsenic herself. xxx6xxx A curious point was raised by the defence with regard to arsenic found at Herbert Armstrong's house. The police had searched his house immediately after his arrest and found about 2 ounces of arsenic coloured with charcoal in the cupboard as Herbert Armstrong had described. However, when the solicitor for the defence searched a bureau that the police had already searched and in which they found nothing, when he searched it on 9 January 1922, he found in a drawer in the bureau a broken packet containing about 2oz of white arsenic, the packet bearing the local chemist's name. It was at first difficult for the prosecution originally to account for the white arsenic being in the chocolates, and the small packet of 3¾ grains of white arsenic being found on Herbert Armstrong on arrest, in view of the evidence of the chemist regarding his purchase of the ½lb in 1919 and that of the chemist’s assistant regarding the ¼lb sold on 11 January 1921, for which it was claimed on both occasions had been properly mixed with charcoal according to the Statute. However, the explanation put forward by the prosecution was that the chemist's assistant had not in fact coloured the ¼lb with charcoal, and in accordance with Herbert Armstrong's own evidence, that turned out to be correct. Herbert Armstrong's story on that point was that when he told the police, in his statement prior to his formal arrest, that he had only had 2oz of arsenic in his house, that he had forgotten that he also had about 2oz of the 1919 purchase left over, and also forgotten that he had any of the 1921 purchase left. He said that it was only when he fumbled through the brown paper parcel containing his pocket book and letters that he had caught sight of the small packet containing 3¾ grains of white arsenic which reminded him that he still had in fact the remaining 2oz of his 1921 purchase in the drawer of his bureau. However, when Herbert Armstrong was cross-examined on that point, he made the most extraordinary explanation for his dealing with the ¼lb of white arsenic purchased on 11 January 1921, stating that he didn't open the packet until after Katharine Armstrong's death, but that in June of that year he took about half of the ¼lb and divided it up into about 20 small packets similar to the one found upon him, and that he had used 19 of them to kill dandelions, giving to each separate dandelion the contents of a packet. He then accounted for the single packet found upon him by saying that he must have forgotten about it and that the coat that he had been wearing when he was arrested had probably been the coat that he had been wearing when he had 'doctored' the 19 dandelions. The defence noted the issue of motive, it being suggested that he had poisoned her for the money. However, it was noted that although Herbert Armstrong had received everything, he had not, in almost a year, not used one penny of the money. It was also suggested that Herbert Armstrong had killed Katharine Armstrong because of another woman, however, it was noted that the other lady concerned had been a lady of mature years that had known Katharine Armstrong well and knew of her love for her children and was herself highly respectable and that the motive was very weak. It was also noted at the appeal that there had been a third motive that the judge had introduced himself whilst summing up, which, the defence had had no opportunity to address. On the matter of the alleged poisoning of the other solicitor, it was noted that the scones had been brought in directly from the kitchen to the drawing room by the maid and that Herbert Armstrong had not been in the kitchen at all that day. It was added that the emphasis on Herbert Armstrong having said 'Excuse fingers' was left open to the jury in a much wider sense as there was nothing suggested by the solicitor that anything untoward had happened when he had been handed the scone. It was heard that two men had been working at the office that day and that by arrangement Herbert Armstrong had come back early to see one of the workmen about something and that they had been talking together until the other solicitor arrived and that when he did they went into the drawing room to find tea was ready and that it was the suggestion of the prosecution that Herbert Armstrong had put the poison on the scone when he had handed it to the other solicitor, but noted that there was no evidence whatever that he had had arsenic on him that day at all. It was noted that it wasn't until some hours later after having his own tea that the other solicitor became ill with symptoms both consistent with arsenic poisoning as well as gastritis and that when the sample was taken from him four days later an ordinary chemists bottle was used and 1-33 grain found. It was further noted that Herbert Armstrong and the other solicitor continued to meet and that Herbert Armstrong had made a number of other invitations to the other solicitor for tea, all the way down to 31 December 1921 when Herbert Armstrong was due to have a dinner-party at which the other solicitor was invited. The defence further noted that on the day Herbert Armstrong was arrested, he had not been wearing his normal jacket, but instead his Norfolk jacket which he had used for gardening and sometimes on a Saturday morning when he was intending to spend the afternoon in the garden. The matter of the poison in the envelope was addressed by the defence, it being noted that upon his arrest he asked for permission to deal with his business letters, which was allowed and that whilst doing so, he thought that he was also entitled to look at the letters in the packet and whilst looking he saw the white packet with the weedkiller in it which then brought back to mind that he had some other arsenic. It was noted that the fact that he did not say something like: xxxqxxx My statement was incorrect, I now recollect that I have some other arsenic. xxxqxxx Was used against him at the trial. however, the defence noted that he had, as he was then under arrest, thought it wiser not to say anything further until he had taken advise. When the judge summed up he noted that the finding of the arsenic found on Herbert Armstrong proved nothing other than possession, and commented on Katharine Armstrong's statement before her death. It was also noted that Herbert Armstrong was the only person who would have had been able to have administered the poison. He noted that the evidence of all the doctors was that both the other solicitor and Katharine Armstrong had suffered from arsenical poisoning. He said that it was then for the jury to decide whether the other solicitor really did suffer from arsenical poisoning and if he did, then how was it administered, noting that simply by concluding that he had suffered from arsenical poisoning did not prove that Herbert Armstrong had given it to him. However, he noted that in addition, Herbert Armstrong had been proved to have had arsenic on him when he was arrested and had arsenic in his possession when the other solicitor was poisoned. The judge then told the jury that they had to decide that if the other solicitor had been given arsenic, the who and where, noting that his symptoms arose after he had had a meal with Herbert Armstrong and although he had eaten later he had been ill and had not wanted to eat, only eating at his wife’s insistence. The judge also asked the jury to decide whether he had similarly poisoned his wife. The summing up took three hours. Herbert Armstrong was, after a deliberation of 48 minutes, convicted of murder on 13 April 1922. It was noted that the charge of attempted murder should be left on file in the possibility that there was a successful appeal. However, he appealed, stating that evidence regarding the attempted murder of the other solicitor should not have been admitted. It was noted that the introduction of evidence relating to the attempted murder of the other solicitor was made in line with the case law from Makin V the Attorney General of New South Wales, which had also been applied in other cases, in particular that of George Joseph Smith in which George Smith was convicted on the grounds that each of his wives had been killed in similar circumstances and as such it was not required to prove murder on each account, only that there was a system and if he was found to be guilty of one then he was guilty of them all. As such, it was noted that both the other solicitor and Katharine Armstrong had both been killed with arsenic and so there was a pattern. It was also claimed that the practice of calling rebutting evidence itself should have been modified, noting that it was largely based on R v Frost (1839) from which direction was given by Tindal, stating: xxxqxxx There is no doubt that the general rule is that where the Crown begins its case like a plaintiff in a civil suit they cannot afterwards support their case by calling fresh witnesses, because they are met by certain evidence that contradicts it. They stand or fall by the evidence they have given. They must close their case before the defence begins, but if any matter arises, ex improviso, which no human ingenuity can foresee, on the part of a defendant in a civil suit, or a prisoner in a criminal case, there seems no reason why that matter which so arose, ex improviso, may not be answered by contrary evidence on the part of the Crown. xxxqxxx It was noted however that there had been some since modified, in particular in relation to R v Crippen (1911). The grounds of the appeal were: That the judge wrongly permitted evidence to be given which tended to show that the prisoner had administered poison to the other solicitor with intent to murder him. The learned Judge misdirected the jury on the effect of such evidence on the way in which it should be applied. The learned judge misdirected the jury about the grounds on which the said evidence was admissible (if admissible in fact). The learned judge misdirected the jury on the whole case. In particular he misdirected them on the following points: By directing them that it was for the defence to prove to their satisfaction that the deceased committed suicide. By failing to bring to their notice points in favour of the prisoner. By failing to put to the jury adequately the case made for the defence. By unduly emphasizing a number of points put forward on behalf of the prosecution without calling the attention of the jury to the answers put forward by the defence. By suggesting to the jury theories as to what might have occurred with which the defence had had no opportunity of dealing. By suggesting to the jury that the prisoner had been guilty of concealing evidence from the prosecution at a time when he was in fact under arrest and was represented by a solicitor. By misdirecting the jury generally as to the weight and attention to be attached to the evidence given by the witnesses for the prosecution and defence respectively. The learned judge misconstrued certain of the evidence and in consequence misdirected the jury. The following were put forward as instances of misdirection: The learned judge stated that if the nurse was mistaken in saying that Mrs Armstrong took to her bed on February 13, 1921, it made a difference of one day only. There was, in fact, no evidence of any other witness that Mrs Armstrong took to her bed before February 16. The learned judge stated that there was no evidence that anybody besides the prisoner knew that there was arsenic in the house. There was, in fact, evidence that Mrs Armstrong knew of it. When the main point, 1, was discussed, the defence stated that the difference in evidence given to prove a system had to have proof that was consistent with guilt and that only then could similar acts be admitted, stating that the evidence in the attempted murder could only be admitted to show that some particular act in February was a guilty act. The defence said that the distinction was that you could not say: xxxqxxx We suspect you, but having no direct evidence, are going to give evidence to show you are likely to poison someone. xxxqxxx The defence noted that Herbert Armstrong had been upon his trial on an indictment for the murder of his wife on 22 February 1921, and noted that the case for the prosecution was that he had been poisoning his wife for some time, that he was in possession of arsenic that might have been used to poison his wife, and there was a question of motive. He said that there was no act proved by Herbert Armstrong in regard to which he might set up the defence that the act was done either by mistake or by accident and rather that the claim was that he had arsenic and he was going round poisoning people. The defence stated that the only thing the prosecution had to prove was: xxxqxxx You are in possession of poison, you had the opportunity of administering that poison to your wife, and we say that you had some motive for doing so. xxxqxxx He stated that Katharine Armstrong's death took place on 22 February 1921 and that during the course of the trial on that indictment, at a very early stage, before any defence was before the court at all, submission was made by the Attorney-General to the judge that he should be allowed to open the facts of the indictment in the attempted murder case. xxx9xxx The defence noted that it was important to remember that the case was being opened in considerable detail and that they sought that evidence to put to the jury, not at some subsequent time, but then and there in the very first opening statement of counsel, before any defence of any sought had been made, noting that it was not there before the opening by the Attorney-General. One of the judges then asked the defence whether it was not the case that Katharine Armstrong did in fact die from arsenical poisoning, the defence agreed that it was and the judge then said: xxxqxxx Then the case was open to three defences, accident, suicide, or poisoning by some other person? xxxqxxx The defence agreed and said that there had been an opening by the Attorney-General dealing with the murder charge, and then there was a submission to the judge who read the shorthand note of the submission and said that he contended that such evidence as was given in the attempted murder case would only have been admissible on three grounds, which one of the judges then interrupted by stating: xxxqxxx Intent, system, accident? xxxqxxx To which the defence agreed. The judge then asked: xxxqxxx Is there a system of poisoning everybody? xxxqxxx To which the defence replied: xxxqxxx I hope not my lord. xxxqxxx Which was met with laughter. The defence then noted that what he understood was that if there was evidence connecting different separate crimes showing they were all done with one end in view, it might be that evidence of subsequent acts could be admissible. The judges then gave examples, with one noting that in one case it dealt with a course of business, and another judge noting that it might be a baby farming case, and the third judge suggesting that it might be in insurance cases where they burn down houses. The defence then stated that his submission was that at the time that was put before the jury, it was put in a mass of prejudices at the very outset and at a time when there was nothing before the court to justify its admission at all, adding that at that time there was no defence that could possibly justify its being brought before the court. He said that they had first to prove some definite act in relation to the charge they were trying, and that in the case no such act had been ever proved at all. The defence added that assuming there was any ground, and he didn't admit there was any ground, in which such evidence could be put before the jury, the jury were misdirected over and over again by the judge in his summing up as to the use the jury might make of it. He added that it had been left in a way that all cases had decided it should not be left. One of the judges then noted that the charge of attempting to murder the other solicitor came first, and there were three dates, the moment of arrest with white powder in his pocket, October 16 and February 1921. Another judge then cited Reg v Gearing, saying that there the husband died in 1848 and that evidence was given of sons who died the following year. The defence then noted that they took no point in the fact that the attempted murder took place subsequently. Another judge then referred to the case of Neill Cream where the man was in the habit of administering strychnine to women of a certain class. The defence then noted that the present case was quite different from the other cases, stating that accident was not a defence, noting that in Gearings case, within six months, three died from the same poison and the prisoner was the person who served them with their victuals. He said, the test is: xxxqxxx At the time the evidence was put before the jury, was it relevant to the case made. xxxqxxx He then referred to R v Winslow to show that, as compared to R v Gearing, upon almost identical facts, two entirely different views were taken. One of the judges then noted that R v Winslow had been held to be wrong. However, the defence noted that the view that it was wrong had been expressed several times, but that he was not citing the cases to show how the law was now, rather that it seemed fairer to go back and deal chronologically with relevant cases, and then cited R v Gurner, which was a case of system. One of the judges then asked how it was more a system to exterminate a family than to exterminate everyone who is objectionable to you? The defence then suggested that they might be a common aim, as, if all the family stand in the way of an inheritance. The defence then stated that Prima facie juries were not entitled to have evidence of prior or subsequent charges unless the prosecution showed that they came within definite exceptions. The defence noted that it was not enough to say: xxxqxxx We prove you had opportunity, which everyone else in the house had, and to prove that you took advantage of that opportunity, we give evidence that on another occasion you did such-and-such an act. xxxqxxx And then stated that you had to prove an act, and a similar act on another occasion. One of the judges then noted: xxxqxxx If the Attorney-General is right, they could have prosecuted to conviction for the attempted murder, and then proved all those facts against him again on the murder charge. xxxqxxx Another judge then remarked: xxxqxxx Why not? Suppose a burglar is caught with a jemmy in his pocket, which fits a mark on another door previously broken. Cannot evidence be given against him of the finding of the jemmy and the subsequent burglary? xxxqxxx However, one of the other judges said that he thought not. The Lord Chief Justice then asked: xxxqxxx Must we not distinguish between admissibility and the value of the evidence when admitted? xxxqxxx Another judge then added: xxxqxxx Your argument is, such evidence is inadmissible per se, but a particular defence may make it admissible. xxxqxxx The defence then said: xxxqxxx Precisely. It is only when the Crown have brought themselves within particular exceptions, which they never did in this case, that it can be admissible. If this evidence was admissible, the exceptions had eaten up the law that on one indictment evidence could not be given of the facts relating to another indictment. xxxqxxx The Lord Chief Justice then asked: xxxqxxx What is the distinction between saying: 'We saw you offer the cup, and will show that you offered it on another occasion', and saying: 'We show that you had opportunity and motive, and poison in your possession, and that on another occasion you actually administered it'? xxxqxxx The defence noted that the distinction was that you must not say: xxxqxxx We suspect you, but having no direct evidence, are going to give evidence to show you are likely to poison someone. xxxqxxx Adding: xxxqxxx You must have proof of an act which is in itself consistent equally with guilt or innocence, then similar acts may be evidence to show guilt on that occasion. The attempted murder evidence could only be admitted to show that some particular act in February was a guilty act. xxxqxxx However, the appeal was dismissed with the judges saying: xxxqxxx That the evidence in question was properly admitted. It being an essential part of the case for the prosecution to prove that arsenic was designedly administered by the appellant to his wife, any evidence tending to prove design must tend to rebut the suggestion of accident or suicide. The evidence was also admissible to rebut the suggestion that the appellant kept the arsenic for an innocent purpose, namely, to destroy weeds. xxxqxxx It was also claimed that Herbert Armstrong had been tried by newspaper and local gossip and that his case should have been transferred out of the county to the Old Bailey under the Central Criminal Court Act 1856, section 3. Herbert Armstrong was executed at Gloucester Prison on 31 May 1922. It was claimed that just before he was executed, Herbert Armstrong had called out: xxxqxxx Kitty I'm coming to ye! xxxqxxx When the governor of the prison was asked whether Herbert Armstrong had had any last words, he said that Herbert Armstrong's last words were: xxxqxxx I am innocent of the crime for which I have been condemned to die. xxxqxxx It was later suggested that Herbert Armstrong had been innocent and that Katharine Armstrong had committed suicide. It was further noted that the evidence was circumstantial and that it would not hold up in a modern court of law. A particular claim was that the pathologist that found that Katharine Armstrong died from a dose of arsenic administered within the previous 24 hours could not have stated that as fact and only opinion it being noted that a doctor could not line up a number of people and give them arsenic and find out how long they would live for. However, the science behind arsenical toxicity was based largely on known cases from which medical papers and references had tabulated define lethal doses from records relating to post mortem analysis of people that had died from arsenical, and other poisons,. xxx7xxx It was also claimed that the judge had been biased. It was claimed that he had been due to retire and wanted to retire on a high note. It was pointed out that he had appeared to have supported the prosecution, and hindered the defence, allowed Herbert Armstrong to face 2,000 questions over a few days all the whilst standing in the dock, and whilst summing up introduced more ways that Herbert Armstrong could have administered the poison that neither the prosecution or defence had themselves brought up as well as introducing a motive that no one had previously considered and which the defence had no chance to address. When Herbert Armstrong's will was proved its gross value was given as £3,628 with net personalty nil. He had left his wife £100, his house and personal effects and consumable stores. All his other property was to be left in trust with his wife getting up to £300 per annum and if there was more that it was to be split between his children. In July 1926 it was reported that Herbert Armstrong had in fact been seeing a girl in Amiens, France when he had been there during the war years. She said that he had presented himself as a single man and that she had introduced him to her family as a suitor. She said that they had met often in France and London, generally without her family knowing and that when she had come of age she had lent him sums of money to enable him to overcome temporary difficulties that he had told her about. It was not until he was arrested that she found out that he was married, but even then she wanted to be with him. In one letter she wrote: xxxqxxx He may be the worst man in the world, but for me he is the only man. Even were I to be his victim, I should still feel for him as I do, even feel that it was happiness to die by his hand. xxxqxxx However, her family took her passport, although she still made her way to the coast where she tried to bribe a fisherman to take her across the channel. She later went to Rouen where her baby with Herbert Armstrong was cared for and after news of his condemnation was made, her family removed her to an asylum, and it was not until July 1926 when it was thought she had recovered that she was released. However, the first thing she did was visit Paris to consult the English papers there about the trial, but unable to trace news she asked a member of staff and when she was told she collapsed. The same night she travelled to Amiens, but instead of going home she roamed about in some of the spots where she and Herbert Armstrong had walked when they had first met. Then in the morning her dead body was found on the railway line. Letters that she had left behind made it clear that she had taken her life because she could not forget the man that had come into her life at her most impressionable age. In one letter she wrote: xxxqxxx I cannot go on. I have but one thought on my mind, to join the man I loved better than anything on earth. I cannot think of turning to any other to replace him. Better death than the life that would be mine without him. Perhaps if God is good he will permit the happiness of just one hour in paradise with my lover. That would be worth much. xxxqxxx In the same letter she asked that her baby left behind at Rouen should be brought up in ignorance of his parentage. Herbert Rowse Armstrong was a fifty two year old solicitor practising in the Welsh border town of Hay-on-Wye. A seemingly mild mannered man he was a retired army Major. His wife was well known as a hypochondriac and a nag. One way he had found to get away from her was to become involved in the Territorial Army once again rising to the rank of Major. When this did not give him the amount of freedom that he wanted he started to think of something more permanent. Even though she was a hypochondriac she really had been ill and when she died it was believed to be from Gastritis. Had the doctor examined her more closely he may have realised that she had not died from Gastritus but from arsenical poisoning. She was buried and that might have been the end of it had it not been for the fact that having once got away with it Armstrong decided to use the same method again. After a dispute with a rival solicitor named Oswald Martin, Armstrong invited him to tea on the pretence of finding a solution to the dispute. Martin was passed a scone which had been heavily laced with arsenic The effect of this was to make Martin violently ill on his return home. Martins father in law was the town's chemist and was aware of the purchases that Armstrong had made of arsenic. Tests were done and the authorities notified. Armstrong was arrested on suspicion and his wife's body exhumed. Arsenic can remain in the body of a dead person for years and can even help to preserve the body. He was tried at Hereford Assizes and found guilty and held at Gloucester Prison until he was hanged at 8 am on 31 May 1922 by the official Hangman John Ellis. As to the reason for Armstrong to murder his wife it would seem that Armstrong saw murder as a way of getting out of an unhappy marriage and this was indeed his motive. Age:- 53 Date of Execution:- Wednesday, 31st May, 1922 Location of Execution:- Gloucester Hangman:- John Ellis Assistants:- Edward Taylor Tried At:- Hereford Trial Dates:- 3rd - 13th April, 1922 Trial Judge:- Mister Justice Darling Crime:- Murder Victims:- Name:- Katharine Mary Armstrong Age:- 48 Location of Murder:- Hay-on-Wye Date of Murder:- Tuesday, 22nd February, 1921 Method of Murder:- Poisoned (By Arsenic) Relationship to Killer:- Wife