“How do you know what she knew?” Mason asked.
Burger, so angry he was all but sputtering, said, “Your Honor, if the Court should enforce any such rule, it would mean that the defendant in this case would be allowed to get by with murder. And I mean literally to get by with murder. She has committed the crime of murder. A witness is now on the stand who knows facts that force us to the conclusion that this defendant committed the crime. They are no longer husband and wife, they have been living separate and apart for over a year, there is no relationship between them which the law should encourage. The reason for the rule has ceased, and so the rule itself should cease.”
“Whatever a wife may have said to her husband is a confidential and therefore a privileged communication,” Mason said. “If this defendant was in that room and asked her husband to go away, she was appealing to him as his spouse. She was his wife at that time.”
“Poppycock!” Hamilton Burger exploded. “She had no idea who it was at the door. She only knew someone had knocked and she didn’t want the door opened while she was standing there in the nude.”
“Not at all,” Mason said. “If the witness could have recognized his wife’s voice, she could have recognized his.”
“But she didn’t mean it as a confidential communication,” Burger said.
Mason smiled. “If you’re going to testify as to what my client thought, Mr. District Attorney, you’ll have to get on the stand, and then you’ll have to qualify as a mind reader. You’ll probably need your crystal ball to hold in your hands while you’re testifying.”
Judge Erwood, fighting back a smile, said, “Let’s not have any more personalities, gentlemen. In the face of the objection on the part of the defense, Mr. District Attorney, this Court is going to sustain the objection to anything it is claimed a wife said to her husband while the marriage was in existence, particularly at a time when she was in a room where a corpse was subsequently found.”
“But, if the Court please,” Hamilton Burger protested, “that simply tears the middle right out of our case. We don’t have a leg to stand on unless we can rely on the testimony of this witness.”
“Just a moment,” Judge Erwood said. “Let me point out to you, Mr. District Attorney, that in this court you are not building up a case to prove the defendant guilty beyond all reasonable doubt. You only need to establish a prima facie case. That is, that the murder has been committed (a fact which you have now established), and that there is reasonable ground to believe the defendant committed that crime. You have proven she had an opportunity to possess herself of the murder weapon. Now, all you need to do is to prove the presence of the defendant on the premises at the time the crime could have been committed. That’s all you need to establish in this court.
“You can then take this question of evidence to the superior court, where it can be properly ruled upon and after the ruling can be properly reviewed.”
Hamilton Burger thought that over.
“I take it,” Mason said, “that the Court is not intimating in advance what its decision will be.”
Judge Erwood frowned down at Mason. “The Court is not precluding the defense from putting on any evidence it may desire, if that is what you mean. If that evidence indicates that the defendant should be released, the defendant will be released.
“However, the Court is stating that if the evidence in this case, when it is all in, tends to prove that this defendant probably had possession of the weapon with which the murder was committed, at the time of the murder, that the murder was committed at a time when the defendant was on the grounds where the murder was committed, the Court will consider that as sufficient evidence to make an order binding the defendant over.”
“Very well,” Hamilton Burger said, his face brightening somewhat. “We’ll withdraw you from the stand, Mr. Ferney, and call Loretta Harper.”
Loretta Harper was sworn and testified that she had been giving a party in her apartment, that Jason and Millicent Kendell, two very old friends, were there in the apartment, that she had left shortly before nine o’clock to run across the street and get some cigarettes, that a Cadillac had slowed down opposite her while she was in the crosswalk, that the defendant had been in the car, that the defendant had accused her of “playing around” with the defendant’s husband and keeping the defendant’s husband from getting a divorce. The defendant had ordered Loretta into the automobile with her at the point of a gun.
Loretta went on to testify about being taken out to Meridith Borden’s place along the wet roads, about the defendant driving with one hand, about the car skidding and overturning. She admitted that she substituted herself for the defendant in order to try to keep her name from getting in the papers, that she had then told George Ansley that her name was Beatrice Cornell in order to keep herself from becoming “involved,” and had had him drive her to the Ancordia Apartments, from which she had taken a taxicab back to her own apartment where she had suddenly realized her fiancé, Frank Ferney, had failed to keep an appointment with Dr. Callison and had aroused him from a deep sleep and started him hurrying to Dr. Callison’s veterinary hospital.
“You may cross-examine,” Hamilton Burger said.
“You occupy an apartment in the Dormain Apartments?” Mason asked.
“Yes.”
“What is the number of that apartment?”
“409.”
“It is your recollection that the defendant was holding a gun in her hand at the time of the accident?”
“Yes.”
“Did you see that gun after the accident?”
“I did not.”
“Did you look at her hands after the accident to see whether she was still holding the gun?”
“I did not, but I don’t think the gun was in her hands. I think it had been thrown out somewhere and was doubtless lying on the grass.”
“No further questions,” Mason said.
Hamilton Burger thought for a moment, then said, “If the Court please, that’s our case.”
“Well,” Judge Erwood said, “it’s not a particularly robust case, but the Court can well understand that it is only a technicality which keeps it from being a very robust case. This is, of course, the second time the facts in this case have been called to the Court’s attention. Does the defense wish to make any showing, Mr. Mason?”
“It does, Your Honor.”
“Very well, put on whatever evidence you have,” Judge Erwood said in a tone which plainly indicated that evidence would do no good.
“My first witness is Beatrice Cornell,” Mason said.
Beatrice Cornell took the stand, testified to her name, address and occupation.
“Was the defendant, Dawn Manning, listed with you as one of the models you had available to be sent out on photographic work?”
“She was.”
“And that was on the eighth of this month?”
“Yes.”
“On the ninth of this month did someone ask you to have Dawn Manning go out on a job?”
“Yes.”
“And did you have occasion to see Dawn Manning’s body, particularly the area around her left hip, on that date?”
“I did.”
“Can you describe the condition of that hip?”
“From the hipbone down along the thigh, she was scraped. Part of the scraping was simply a mild scrape which had left a bruise and a discoloration, but there were two or three places where the skin had been taken completely away.”
“Leaving unsightly bruises?” Mason asked.
“Yes.”