september 12, 1917
The trial of Lieutenant Malcolm
Critics of perspective may quarrel with the attention attracted by the murder trial which ended in an acquittal of Lieutenant Malcolm at the Central Criminal Court yesterday. In times when human life is patriotically reckoned “as ’twere a careless trifle” and when thousands fall on the field of battle with but a few soldierly words of comment, it may be perplexing that a charge which was concerned with the life of one man should excite the public as this case has done. The defendant was a soldier who sought to protect his wife, and in doing so took the life of another man. There were thus the elements of romance in the trial, and on that account its popular appeal was irresistible. The psychology of such events as gave rise to this trial has, no doubt, been attempted, but it is foreign to this country. No British jury takes cognizance of the crime passionnel and, as Sir John Simon, who appeared for the defence, pointed out, it would be contrary to the traditions of our Courts to admit an appeal to the “unwritten law”.The facts of the case were simple. Lieutenant Malcolm shot a man, known as the Count de Borch, whom he accused of familiarity with his wife. It was contended for the defence that the accused visited the Count de Borch to use a whip upon him, and that in the course of a struggle the Count was shot by the prisoner in self-defence. The jury obviously took that view and so did what Bacon called “rough justice”.
There will be general agreement with the verdict, unexpected as it was. Where life is taken in circumstances which produce extreme provocation the gravity of the offence in law is reduced, and it is customary for juries to find the accused guilty, with what recommendations they may care to make. There is a discretionary power in the Judge and, beyond that, there is a prerogative of clemency in the Crown, which has never failed in such cases as that of Lieutenant Malcolm. However, in this case the jury found the prisoner not guilty.
The trial was an unusual one, and it had an unusual termination. It will be a source of satisfaction that throughout the proceedings no claim was made in favour of any novel development of our criminal law, and no countenance was given to doctrines which would prejudice and confuse the administration of justice.
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