“Well, counting bookkeepers, stock clerks, salespersons, we had — let me see, about twelve, I think.”
“Including the owners?”
“No, sir.”
“How many owners are there?”
“Three.”
“So there was a total of fifteen persons who could have taken that gun?”
“Well... yes, sir, I guess so.”
“And, during the time between the date the gun was received by you and the date when it was found to be missing when an inventory was taken, there were two burglaries of the store, were there not?”
“Yes, sir.”
“And what was taken in those burglaries?”
“Objected to as incompetent, irrelevant and immaterial, and not proper cross-examination,” Burger snapped.
Judge Erwood said, “I think you should limit your question somewhat, Mr. Mason.”
“Very well, I will. I’ll withdraw that question and ask Mr. Dennison if it isn’t true that sporting goods were taken when the store was burglarized on each occasion.”
“Same objection,” Hamilton Burger said.
“Overruled,” Judge Erwood snapped.
“Yes, sir,” Dennison admitted. “As nearly as we could tell, all that was taken on those occasions was hunting and fishing material, and some cash.”
“What do you mean by hunting and fishing material?”
“Ammunition, rifles, shotguns, fishing rods, reels.”
“On both occasions the material taken consisted solely of sporting goods?”
“And money.”
“Both times?”
“Yes.”
“No further questions,” Mason said.
“Just a moment,” Hamilton Burger said. “I have one or two on redirect. If that gun had been taken on the occasion of either of those burglaries, you would have found that it was missing at that time, isn’t that correct?”
“Objected to as argumentative, leading and suggestive, and calling for a conclusion of the witness,” Mason said.
“Sustained,” Judge Erwood said.
“Well, you took an inventory after each of these burglaries, didn’t you?”
“Yes, sir.”
“Now then, I am going to ask you if you found that this gun was missing immediately after either one of the burglaries?”
“No, sir.”
“That’s all,” Hamilton Burger said.
Mason smiled.
“Did either of those inventories disclose this gun as being present?”
“No, sir, it did not. As I have said, something happened to our records on this gun. I don’t understand it exactly, but all I can state is that the gun was not sold over the counter.”
“That’s all,” Mason said, smiling.
“And during the time of this shortage, the defendant was in your employ?” Hamilton Burger asked.
“That’s right.”
“No further questions,” Hamilton Burger said.
“And fourteen other people were also in your employ?” Mason asked.
“Well, yes.”
“No further questions,” Mason said.
“That’s all,” Hamilton Burger announced. “Mr. Dennison will be excused. I will now call Frank Ferney. I may state to the Court that in some respects Mr. Ferney is an unwilling witness. He has, I believe, tried to protect this defendant wherever possible, and—”
Mason arose.
Hamilton Burger said, “And I may have to ask leading questions in order to get at the truth. I think this witness has perhaps—”
“Just a moment,” Judge Erwood said. “Do you wish to object, Mr. Mason?”
“Yes, Your Honor. I feel that it is incumbent on the district attorney to ask questions, and then, if it appears the witness is hostile, he can ask leading questions. But I see no reason for the prosecution to make a speech at this time, a speech which is quite evidently intended to arouse sympathy for this witness.”
“The Court feels Mr. Mason is correct, Mr. Burger. Just go ahead and ask your questions.”
“Very well,” Hamilton Burger said. “Your name is Frank Ferney?”
“That is right.”
“You were employed by Meridith Borden at the time of his death?”
“That’s right.”
“Now, directing your attention to the night when Mr. Borden was murdered, the night of the eighth, were you at Meridith Borden’s house on that night?”
“Yes, sir.”
“At about what time?”
“Just a moment,” Mason said, “if the Court please, at this point I wish to object to this question and ask that this witness be instructed not to answer any questions as to anything that happened on the night of the eighth.”
Judge Erwood showed surprise. “On what ground?” he asked.
“On the ground that the witness is married to the defendant, that the relationship of husband and wife exists, and that a husband cannot be examined for or against his wife without the consent of the wife.”
“Just a minute,” Hamilton Burger said, “I’ll clear that up. Are you married to the defendant, Mr. Ferney?”
“No, sir.”
“You are not her husband?”
“No, sir.”
Hamilton Burger grinned at Perry Mason.
“May I ask a question on that, Your Honor?” Mason asked.
“Very well, on that particular point only,” Judge Erwood said.
“You married the defendant at one time?”
“Yes, sir.”
“When?”
“Some three years ago.”
“You have been living separate and apart for some period of time?”
“Yes, sir.”
“How long?”
“About eighteen months.”
“And you have now divorced this defendant?”
“Yes, sir.”
“When was that divorce decree granted?”
“Yesterday.”
“Where?”
“In Reno, Nevada.”
“I take it you flew to Reno, Nevada, obtained your decree and flew back here in order to be a witness?”
“Yes, sir.”
“You had previously filed this suit for divorce, the issues had been joined, but you hadn’t gone through with the divorce?”
“That’s right.”
“You were married to the defendant on the night of the eighth when the murder was committed?”
“Yes, sir.”
“That’s all, Your Honor,” Mason said.
“But you aren’t married to her now,” Hamilton Burger said. “There is no longer any relationship of husband and wife.”
“That’s right,” Ferney said.
“If the Court please,” Hamilton Burger said, “I am prepared to argue this point. People versus Godines 17 Cal App 2nd 721, and the case of People versus Loper 159 California 6 112 Pacific 720, both hold that a divorced spouse is not prohibited from testifying even to anything that happened during the period the marriage was in force.”
Mason said, “Doesn’t the case of People versus Mullings 83 California 138 23 Pacific 229, and Kansas City Life Insurance Company versus Jones 21 Fed Sup 159 hold that a divorced wife cannot testify as to confidential communications between herself and the accused while they were married?”
“Who’s asking about any confidential communications?” Hamilton Burger shouted. “I’m asking about facts.”
“Aren’t you going to ask him if he didn’t knock on the door of Borden’s studio and hear his wife’s voice say, ‘Go away’?” Mason inquired.
“Certainly,” Burger snapped.
“There you are,” Mason said. “That’s a privileged communication between husband and wife. This witness can’t testify to that, both under the provisions of Subdivision 1 of Section 1881 of our Code of Civil Procedure, as well as Section 1332 of the Penal Code.”
Hamilton Burger’s eyes widened in astonishment. “That’s not what the law had in mind in regard to privileged communications between husband and wife. The defendant merely spoke to this witness without knowing she was addressing her husband.”