“Objection is overruled,” Judge Osborn snapped. “Let the witness answer the question.”
“Which was it?” Mason asked, grinning cheerfully at the discomfited officer. “And remember we have both photographs and photographers to refute any false testimony.”
“I don’t know,” Sergeant Holcomb blurted.
“Thank you,” Mason said. “That concludes my cross-examination, Sergeant. And now I believe, Mr. District Attorney, you said you wanted to put Mr. Goshen on the stand as your next witness. Put him on. Let’s hear what Mr. Goshen has to say.”
Hamilton Burger said, “Your Honor, I dislike these personalities...”
“Counsel is merely repeating a promise which you made,” Judge Osborn said, fighting back a smile. “Of course, I will admit that his manner is perhaps more dramatic than the situation calls for, but... in any event, proceed with your case, Mr. Burger.”
Hamilton Burger said, “I would like to ask the Court at this time for a five-minute recess. I would like to confer briefly with one of my associates. This situation has take me somewhat by surprise.”
“And I submit, Your Honor,” Mason said, “that counsel has repeatedly promised to put the witness Goshen on the stand. I’d like to have him go on the stand now before there’s been any opportunity to coach him.”
“I resent that!” Burger shouted. “I have no intention of coaching the witness. He doesn’t need any coaching.”
“Put him on then,” Mason challenged.
“I have made a motion for a five-minute recess.”
“I’ve opposed it,” Mason said.
“The motion is denied,” Judge Osborn ruled. “The Court sees no reason for a recess at this time.”
“Very well, then, I’ll call Roscoe R. Hansom to the stand.”
“I thought you were going to call Goshen,” Mason said.
“I don’t have to follow your instructions or the instructions of anyone else in putting on my case. I can put it on any way I please!” Burger shouted.
Mason said, “You were hurling challenges at me a few moments ago, Mr. District Attorney, now I’ll hurl one right back at you. I dare you to put Mr. Goshen on the stand as you promised, and before you’ve had an opportunity to talk with him about this new development.”
Hamilton Burger sullenly said, “I asked for Roscoe R. Hansom. Mr. Hansom, will you come forward please?”
Mason grinned.
Judge Osborn clamped his lips together in a firm, thin line.
Hansom identified himself as the proprietor of the Rushing Creek Mercantile Company, told of selling the gun, and of the general description of the man who had purchased the gun. He then produced the gun register, and the signature of the man who had signed for that gun on the register. The gun, which had been previously marked for identification, was received in evidence as People’s Exhibit C.
“Have you subsequently seen that man?” Burger asked.
“Yes, sir.”
“Who was he?”
“His name is Arthur Colson. I saw him at your office on the morning of the sixth.”
“Cross-examine,” Burger snapped.
“No questions,” Mason said, gleefully. “Do you want to call Mr. Goshen now?”
“Your Honor,” Burger said, “I resent this continual nagging by counsel.”
“You’ve invited it,” Judge Osborn said.
“Nevertheless, Your Honor, I feel that it is improper.”
“It is improper,” the Court said. “However, I can tell you this much, Mr. District Attorney. You can stall around if you want to. You’ve a perfect right to put on your case in any way that you see fit. But when it comes to a showdown, your proof is going to be addressed to the discretion of the Court. Now I take it there’s a matter of identification of this defendant by the witness, Goshen, which is material. Very material to your case.”
“Yes, Your Honor.”
“And you promised, in fact, you threatened, I may say you bragged, that you were going to put this witness on the stand in order to prove certain statements you made in your opening address to the Court. Now the judge of this court wasn’t born yesterday, and I know that if you stall matters along until the Court takes its usual adjournment for recess that there’s a reason for doing it. And in the mind of the Court such tactics are going to greatly weaken the testimony of the witness Goshen. Now that’s plain talk, Mr. District Attorney, but it’s because of a situation which you yourself invited. I’m speaking my mind. There’s no jury here. This is a preliminary hearing. It’s a matter addressed entirely to the discretion of the Court and that’s the way the Court feels about it. Now proceed with your case.”
Hamilton Burger cleared his throat, stood for a moment undecided, then blurted out, “Carl Evert Goshen, take the stand.”
Goshen took the witness stand, and, after the preliminary questions, stated that he lived next door to the apartment house at 719 South Gondola. He had occasion to remember the evening of the fifth and in particular was annoyed by an automobile which had sputtered and backfired with a series of explosions which indicated the carburetor or the timing, or both, were badly out of adjustment.
“What did you do?” Burger asked.
“I opened the window, intending to call to the people across the way, asking them to shut off that motor, or do something about it,” Goshen said.
“Did you do so?”
“No, sir, I didn’t.”
“Why?”
“Because they shut off the motor at right about that time.”
“And did you see the car and the people?”
“Yes, sir.”
“How far away were they?”
“Well, they were across an alley which leads to the garage. Oh, I’d say they were perhaps seventy-five feet.”
“Were the figures illuminated?”
“Well, sir, the headlights were on on the automobile and I could see these figures moving around. They were looking in the garage and — well, I saw their backs and saw how they were dressed.”
“Now can you describe those figures?”
“Yes, sir. One of them was Lucille Barton, the defendant in this case. She was wearing a plaid coat and a black hat with a little red feather. A hat that was close-fitting and slanted down on her head over to the right. She had those same clothes on when the police showed her to me.”
“And the other figure?”
“Well, now,” Goshen said, crossing his legs and running his hand over the top of his partially bald head, “now you’ve got me guessing.”
The courtroom broke into laughter.
Hamilton Burger frowned, and said, “You have your two eyes, don’t you know what you saw?”
Goshen rubbed his head, “And I’ve got my two ears, and I know what I’ve just heard.”
Even Judge Osborn joined in the laughter which rocked the courtroom.
When order had been restored, Burger said, sullenly, “Well, tell us what you saw as best you can.”
“Well, I saw a tall man. I never did see his face. He was a tall, athletic looking fellow, apparently sort of young, from the way he moved, not real young, but moving around sort of easy like. He took long strides, had long legs, and he was wearing a gray hat and a tan overcoat.”
“Have you ever seen that man again? Can you identify him?”
“Well, now,” Goshen said, hesitating and rubbing his hand over his head, “I just don’t rightly know.”
The courtroom tittered and Judge Osborn pounded it to silence.
“But you can positively identify the defendant?” Hamilton Burger asked.
“Objected to as leading and suggestive, assuming a fact not in evidence, argumentative, and putting words in the mouth of the defendant,” Mason said.
“The objection is sustained.”
“Well,” Hamilton Burger said, “you definitely know how she was dressed?”