“Then what?”
“Well, we entered the house, and Ferney said Mr. Borden wasn’t in his study, he thought he was up in the studio; he’d go to look for him, and—”
The clerk pounded with his gavel. “Everybody stand up, please.”
Mason whispered hastily to Dr. Callison as Judge Erwood entered the court, “When you left, did Ferney go with you?”
“Yes.”
“Was he alone or out of your sight any time there in the building?”
“Not in the building. The burglar alarm came on, and he went out to call the dogs back and turn out the lights. That was when I answered the phone and said I didn’t think Mr. Borden wished to be disturbed. I felt someone had been tampering with the gates, some idle curiosity seeker. I knew I shouldn’t intrude on Mr. Borden wherever he was.”
“But was Ferney out of your sight while he was inside the house?”
“Only when he went up the short flight of stairs to knock on the door of the studio.”
“Did you hear him knock?”
“Yes.”
“Did you hear any voices?”
“No.”
“Could he have entered the room?”
“Heavens, no! There wasn’t time. I heard him knock and then he came right back down. I’ll tell you this, Mr. Mason, when he came down those stairs, he looked as if someone had jolted him back on his heels. He told me Borden was in the studio and didn’t want to be disturbed. He said—”
The bailiff shouted, “Silence in the court! You may be seated,” as Judge Erwood seated himself on the bench and glanced at the district attorney.
“The tape recording is ready, Mr. District Attorney?”
“Yes, Your Honor. I again desire to object to it on the ground that it is inadmissible, that it is not the best evidence, that it is not properly authenticated, that it is completely incompetent, irrelevant and immaterial at this time, and is no part of rebuttal or surrebuttal.”
“The tape recording is the actual recording that was found in the Borden residence?”
“Yes, Your Honor.”
“Then the objections are overruled. We will hear the recording.”
With poor grace, Hamilton Burger turned on the tape recording. For some ten minutes the recording played the voices of George Ansley and Meridith Borden.
Then the voice of Ansley coming through the loudspeaker, said, “Well, I guess I’ll be getting on.”
Borden’s voice said, “I’m glad you dropped in, Ansley, and I’ll take care of you to the best of my ability. I feel quite certain you won’t have any more trouble with the inspectors. They don’t like adverse publicity any better than anyone else, and, after all, I’m a public relations expert.”
Borden’s laugh was ironic.
“I can find my way out all right,” Ansley’s voice said.
“No, no, I’ll see you to the door. I’m all alone here tonight. Sorry.”
The tape recorder ran on for some ten seconds, then a peculiar thud-ding sound registered on the tape. After that, abruptly the noises ceased, although the spools of the tape recorder continued to revolve.
Hamilton Burger moved over and shut off the tape recorder, started rewinding the spools.
“That’s it, Your Honor,” he said.
Judge Erwood was frowning thoughtfully. “The series of crackling noises which come from the tape recorder after the voices had ceased are caused by what, Mr. District Attorney?”
“The fact that the tape recorder was continuing to run with a live microphone.”
“And that muffled sound?”
“That was the sound of the shot that killed Meridith Borden,” Hamilton Burger said. And then added with apparent heat, “We feel, if the Court please, that this is forcing us unnecessarily to show our hand. We had intended to produce this evidence in the superior court when the defendant was held for trial.”
“Well, the defense has a right to produce it,” Judge Erwood said. “I believe it is being produced on order of the Court in response to a demand by the defendant and as a part of the defendant’s case.”
“Well, the defendant has heard it now,” Hamilton Burger said with ill grace. “And, doubtless, when he finally gets on the witness stand to tell his story in front of a jury, he will have thought up the proper answers, or they will have been thought up for him.”
“There is no occasion for that comment, Mr. District Attorney,” Judge Erwood said. “The defense in any case is entitled to present evidence to a Court.”
“In this case,” Hamilton Burger said, still angry and still insistent, “they’re presenting the prosecution’s case.”
“We won’t argue the matter!” Judge Erwood snapped. “Are there any further witnesses, Mr. Mason?”
“Yes, Your Honor,” Mason said, “I desire to have Mr. Ferney recalled to the stand for further cross-examination.”
“We object,” Hamilton Burger said. “The defense in this case has done nothing but recall witnesses for cross-examination. The law does not contemplate that a defendant can cross-examine a witness piecemeal. The defendant is supposed to conduct his cross-examination and be finished with it.”
“Anything further, Mr. Prosecutor?” Judge Erwood asked.
“No, Your Honor, that covers my position.”
“Objection is overruled. The examination of witnesses is within the province of the Court. Mr. Ferney, you will return to the witness stand.”
Ferney, obviously ill at ease, returned to the witness stand.
“Directing your attention to the night of the eighth of this month, at a time when you were at the Borden residence with Dr. Callison present, the time being shortly after eleven o’clock in the evening, did you state to Dr. Callison that you had climbed the stairs to the studio where Mr. Borden carried on his photographic work, and that Mr. Borden had told you he didn’t want to be disturbed, or words to that effect?”
“That’s objected to as hearsay and not proper cross-examination,” Hamilton Burger said.
“Overruled!” Judge Erwood snapped. “It’s an impeaching question. The Court is going to hear the conversation.”
“But it certainly can’t be binding on the prosecution anything that this witness said, Your Honor.”
“It may not be binding on the prosecution, but it shows the attitude and the bias of this witness. The Court is going to permit the question. Go ahead and answer, Mr. Ferney.”
“Well,” Ferney said, “I went up the stairs to the studio. I knocked on the door—”
“That’s not the question,” Judge Erwood interrupted. “The question is what you told Dr. Callison.”
“Well, I told her that Mr. Borden was up in the studio taking pictures and that he didn’t want to be disturbed.”
“Did you say he told you he didn’t want to be disturbed?” Mason asked.
Ferney looked over to where Dr. Callison was seated in the courtroom. “I don’t remember exactly what words I used.”
“After you left the house with Dr. Callison in her station wagon, did you ask her if she had heard a shot?”
“I think what I said was a noise like a shot.”
“You asked her that?”
“I may have.”
“That’s all,” Mason said.
“I have no further questions,” Hamilton Burger said.
“That rests our case, Your Honor,” Mason said.
“I have no further evidence, Your Honor,” Hamilton Burger said. “I now move the Court to bind the defendant over to the superior court. Regardless of what the record may show as to contradictions, the fact remains that the defendant had the fatal weapon in his possession, the defendant had threatened the decedent, and, furthermore, it is apparent that the defendant fired the shot which killed the decedent within a few seconds after the termination of the interview, and apparently while the decedent was showing the defendant to the door. The sound of that shot is quite apparent on the tape recorder.”