The House Gun (25 page)

Two: whether or not harmful intention was premeditated, when the accused picked up the gun and shot Jespersen, was he
in a state of automatism in which inhibitions disintegrated and there was total loss of control?

On the matter of Question One, my learned assessor, Mr Abrahamse, a member of the Bar, and I are of the opinion that there was no premeditation of vengeful bodily harm, this based on the absence of dissimulation in the accused's evidence and the fact that, firstly, it is accepted that he had no weapon of any kind with him when he left the cottage; secondly, although the house gun was not kept locked away in security, merely in a drawer in a bedroom, it is reasonable to suppose that when the room had been tidied up after the party it would not have been left lying on the table. My learned assessor, Mr Conroy, an experienced senior magistrate, was of the minority opinion that there was premeditation, this based on the reasonable assumption that solitary self incarceration in the cottage strongly implied this.

In the matter of Question Two, the court has devoted much careful deliberation to the contrary elements revealed between the only witness to the crime itself available—that of the accused himself, and the fact of the body of the victim—and the various interpretations of his act as presented to the court. The accused has testified that he did not see the gun when he entered the living-room, and he could not say at what point he saw it. Yet he admits that he could and did pick it up. He says that he ‘didn't make any decision'; but, nevertheless, he fired it.—

The lifted gaze accuses them, the mother and father and friend of the murderer, although the judge probably doesn't even know where they are among the faces; they take that gaze upon themselves.

—There is some doubt as to whether or not he knew it was loaded. If he did not know—although it is reasonable to suppose he did, since at the party he could have seen this demonstrated—and he had to verify whether or not it was loaded by opening the chamber, the deceased surely would have had sufficient warning of the accused's intent and could have made a move, jumped up to
defend himself. The validity of the submission that one may verify that a gun is loaded or not, whether the safety catch is on or not, and then take aim accurately at a victim's head, if one is not an experienced marksman and is in a state of inability to engage in purposeful conduct, which is one of the definitions of lack of criminal capacity, therefore also remains in some doubt. The accused has admitted that the gun, which he knew how to use, was nevertheless ‘the only one I'd ever touched'. Usage which is not habitual generally requires conscious attention in order to be performed, however simple the process may be.—

The protection closed in around them has been withdrawn; the company have become spectators again, impatiently bored with all this legal yes and no and maybe and nevertheless. The import carried in the judge's next statement, carefully delivered without any of the histrionic ring that has sounded an alert in some of his other pronouncements, satisfies no expectations.

—Therefore it is the opinion of the assessors and myself that, although the crime was committed under extreme stress, it was a conscious act for which the accused bears criminal responsibility. —

Even Harald and Claudia, who have been balancing, in that intense concentration of theirs, the yes and no of convoluted discourse—O, if one could be sufficiently removed, safe enough from it to be bored—a moment of bewilderment passes between them before they translate the dry statement of reasoned opinion into the fallen hammer of verdict. Why go on, why is he going on, he's already picked up his weapon to hand and struck with it, full in the breast. Criminal responsibility. Our son is not mad. Duncan do you hear, did you take it in?

But the man is going on. He taunts, he can't leave alone what he has said, he has to do it again. Dangle hope.

—The court takes into full consideration certain mitigating factors, albeit that the accused has shown no remorse for his crime. Firstly, he did not carry any weapon when he went to the house. Secondly, he could not have known that the deceased would be
lying on the very sofa where the sexual act had taken place before his eyes the previous night. Thirdly, the gun
happened to be there
, on the table. If it had not been there, the accused might have abused the deceased verbally, perhaps even punched him in the usual revenge of dishonoured lovers of one kind … or both.—

He seems now to abandon his text, to accuse the assembly and himself, the streets and suburbs and squatter camps outside the courts and the corridors, the mob of which he sees all as part, close up against the breached palace of justice.—But that is the tragedy of our present time, a tragedy repeated daily, nightly, in this city, in our country. Part of the furnishings in homes, carried in pockets along with car keys, even in the school-bags of children, constantly ready to hand in situations which lead to tragedy, the guns
happen to be there.
—

Khulu is jerking his head vehemently against self-restraint, but for Harald, the judiciary has had its little homily, yes. Does this have any bearing on what is going to be done with my son who, like everyone else, breathed violence along with cigarette smoke?

The judge takes command of himself.

—The gun was there. The accused had the volition to use it to deadly purpose.

The unanimous verdict of the court is that Duncan Peter Lindgard is found guilty, with extenuating circumstances, of the murder of Carl Jespersen.

I propose to adjourn the matter of sentence until ten o'clock tomorrow morning.—

The people have seen justice done. They are shamed, now, to be curious observers of the couple to whom something terrible has happened; they stand back, nudge each other out of the way to let Harald and Claudia and that black gay, that
moffie
—the witness, pass. Claudia's eyes meet those of a stranger; he lowers his gaze.

An emotional shock has the force of a blow on the head. But
this verdict is not a shock; it is the delivery of dread that has been held—only just—at bay for many weeks and has been drawing closer and closer for the days in this place, closer than the surrounding strangers; waiting to be brought down upon them, Harald and Claudia. In the movement of police, lawyers, clerks, gathering the documentation by which justice has been arrived, it is difficult to find Duncan. He's not there? Duncan was never in this place, never. None of this could have happened to their son.

A
t ten o'clock in the morning the court rises for the judge's entry. Papers glide one under the other; the sunlight from the eastern windows shines through the membrane of his prominent ears. He is an ikon to displace those to whom Harald has directed prayer in the past.

Apparently it is standard procedure for the Prosecutor and the Defence Counsel to joust briefly on the issue of sentence, as if it were not already determined on the papers under the judge's hands lying half-open like mouths ready to speak what is held behind his lips locked at the corners. The Prosecutor earnestly reiterates what he has elicited from the accused in his cross examination; there can be no question of ambiguity when the facts of the case come out of the accused's indictment of himself.—You remarked in judgment, Your Lordship, that he showed no remorse; now, further, a man who shows no remorse is also showing that whether or not he performed the act of murder consciously, it was the carrying out of an act that
he would have wished to have come about
. He has no regrets because the death of the man who spurned him as a lover and then was his woman's lover is what he wanted and it is
accomplished
. The accused who does not defend himself is the individual who therefore accepts that his crime is his crime, there is no mitigation to be claimed for it. To expect mitigation of sentence further than the concession of extenuating circumstances the court has already granted, is to bring into question what example, what message, our courts of law would send to society with such mitigation. Your Lordship has referred to the climate of violence in our country as a cause of great concern. A crime arising out of the cohabitation of people like the accused and his fellow occupants, his mates, in a house where none of the acceptable standards of order, whether in sexual relations or the proper care of a weapon, was maintained—if such a crime is to be regarded leniently, lightly, what kind of dangerous tolerance will this indicate of what is threatening the security and decency in human relations on which our new dispensation in this country is based? Yes, the gun was there; the crime of vengeful jealousy with which it was committed is by no means
excused by
, but belongs along with the hijacks, rapes, robberies that arise out of the misuse of freedom by making your own rules. That's where it all begins—defying all moral standards and claiming total permissiveness, as the accused and his friends have done, and which led to
permit
the murder of one of them, one of the
bed-mates
, by another—the accused. I don't have to remind the court that justice must be done to society as well as to the individual accused when sentence is passed commensurate with the damage he has done in taking the life of an individual,
and
to society—he, a highly privileged young man, a professional to whom society has given all advantages—by taking part in the moral free-for-all that abuses and threatens that society.—

Hamilton Motsamai is smiling as he rises. There's a slight inclination of the body that might be a bow in the direction of the Prosecutor.—M'Lord, the accused has not been brought before some commission on public morals, but before your court on a charge of murder.

With your permission, there is no charge preferred against him as the representative of a section of society.

He cannot be brought to account for encouragement of robberies, hijackings and rape so regrettably common in this time of transition from long eras of repression during which state brutality taught violence to our people generations before the options of freedom in solving life's problems were opened to them. I ask M'Lord's indulgence for this last digression …

The climate of violence bears some serious responsibility for the act the accused committed, yes; because of this climate, the gun was there. The gun was lying around in the living-room, like a house cat; on a table, like an ashtray. But the accused bears no responsibility whatever for the
prevalence
of violence; the court has accepted undeniable evidence that he had never before displayed any violent tendencies whatever, and heaven knows there were occasions when life with that young woman might have expected it. He was, indeed, a citizen who—to appropriate a term from my Learned Friend—upheld ‘acceptable standards' of social order. His conduct condoned neither hijacking, robbery nor rape.

We are left with the conclusion that my Learned Friend is himself making a moral judgment on sexual preference, sexual activity, specifically homosexual activity when he speaks of the accused's co-occupancy of ‘a house where none of the acceptable standards of order' was maintained. He thus classifies sexual relations along with the lack of proper care of a dangerous, a lethal weapon as equal examples of transgression of such acceptable standards.

M'Lord, the accused has not appeared before you on a charge of homosexual activity with a consenting adult; neither could this be a charge, under the new Constitution, where such relations are recognized as the right of individual choice. Homosexual relationships, such as existed in the common household, are commensurate with ‘acceptable standards' in our country.

The court has made a majority decision that the murder to
which the accused has admitted was not premeditated. While regarding with its privilege of learned scepticism the conflicting testimonies of the psychiatrists, the court has come to its own opinion that, nevertheless, the crime was committed in a state of criminal responsibility and declared this decision in judgment. Yet there remains that in the course of the trial there has been much debate on this vital issue, and debate, it must be admitted, implies that a certain degree of doubt, a question mark, hangs over it. This degree of doubt merits being taken seriously as augmenting the consideration of extenuating circumstances granted in the judgment.

Ah-hêh …
Finally—when calling for a sentence commensurate with the wrong-doing of the individual, the State needs to keep in mind the philosophy of punishment as rehabilitation of an individual, not as condemnation of the putative representative of society's present ills whose punishment therefore must be harsh and heavy enough to deal with collective guilt. Our justice has suspended the death sentence; we must not seek to install in its place prejudices that inflict upon any accused punishment in addition to, in excess of that commensurate with the crime he has committed, and the circumstances in which it was committed,. The mores of our society are articulated in our Constitution, and our Constitution is the highest law of the land. My Learned Friend for the State speaks with the voice of the past.—

Now there begins some preamble from the judge that will not be remembered with any accuracy because all sense is deafened in strain towards what was going to come from him: the last word.

—I have listened carefully to Counsel both for State and Defence. It should have been clear to both Counsel that the proper sentence in this case to be imposed by this court is not dependent upon the convicted person's social or sexual morals. My function is to impose a sentence which is just both to the victim and the accused. A life has been lost. And as expression of my displeasure at the manner in which the gun in question was held without consideration of safe-keeping, I declare this gun forfeited to the State.

Although there are unusual and exceptional circumstances in this case the sentence must have a deterrent effect. The value of human life is primarily enshrined in our Constitution. The question of sentence is a very difficult one; it must not only act as a deterrent but there must also be a measure of mercy. After very careful consideration I sentence you, Duncan Peter Lindgard, to seven years imprisonment.

The court will adjourn.—

The last word. Handed down to the son, to his parents, to the assembled representatives of those other judges, the people of the city.