“I can’t remember.”
“Where did you meet her?”
“At a restaurant.”
“How did you happen to meet her there?”
“She had told me she would be there.”
“This was an all-night restaurant?”
“Yes.”
“You met with the defendant and had breakfast there with her?”
“Yes.”
“And conversed during breakfast?”
“Naturally we didn’t simply sit there and stare at each other.”
“Just answer the questions,” Ellis said. “Did you or did you not converse with the defendant?”
“I’ve answered the question. I told you we did.”
“And following that conversation, you went to Mr. Mason’s office, that is, to the building where Mr. Mason has his offices?”
“Yes.”
“And entered that building?”
“Yes.”
“Did you sign a register in the elevator?”
“Yes.”
“Did you sign your own name?”
“No.”
“You signed an assumed name?”
“Yes.”
“And did you take the elevator to the floor on which Mr. Mason has his offices?”
“Yes.”
“And went down to Mr. Mason’s offices?”
“Yes.”
“What did you do when you arrived at Mr. Mason’s offices?”
“I went in.”
“Was there anyone there to let you in?”
“Yes.”
“Who was it?”
“A charwoman.”
“And you had some conversation with her?”
“Yes.”
“What did you tell her?”
“I can’t remember.”
“And did you take something from Mr. Mason’s office?”
“I refuse to answer.”
“On what ground?”
“On the ground that the answer may incriminate me.”
Ellis looked at Judge Fallon.
“Very well,” Judge Fallon said. “This witness is a hostile witness. You may have your ruling and use leading questions — although you have been doing so without objection from the defense. Proceed.”
“Did you take a gun from Mr. Mason’s office?”
“I refuse to answer on the ground that the answer might incriminate me.”
“Later on in Mr. Mason’s office and in the presence of Mr. Mason, did you telephone your secretary at the Hastings Enterprises?”
“Yes.”
“What is the name of this secretary?”
“Rosalie Blackburn.”
“What did you tell her over the telephone?”
“I told her to go to my locker, after getting a key from my desk, to take my golf clubs out of my golf bag, to turn it upside down and she would find a package wrapped in paper in the golf bag, that she was to bring me that package.”
“To Mr. Mason’s office?”
“Yes.”
“And she did this?”
“I don’t know.”
“What do you mean, you don’t know?”
“I don’t know whether she did what I had told her to or not.”
“You do know that she appeared at Mason’s office with package, do you not?”
“Yes.”
“That was the same package which you had put in the golf bag?”
“I don’t know.”
“Well, it contained the same article you had put in there, didn’t it?”
“I don’t know.”
“What do you mean, you don’t know?”
“I took no means of identifying the article which was in there.”
“That article was a gun, wasn’t it?”
“The package I put in there contained a gun, yes.”
“And that was the same gun you had taken from Mr. Mason’s office, wasn’t it?”
“I refuse to answer on the ground that the answer might incriminate me.”
“But you admit you put a package in your golf bag?”
“Yes.”
“And that package contained a gun.”
“Yes.”
“And that package was taken out of the golf bag by your secretary?”
“Objected to,” Mason said, “as calling for a conclusion of the witness.”
“Sustained.”
“But you did instruct your secretary to take the package from the golf bag.”
“Yes.”
“And bring it to Mr. Mason’s office.”
“Yes.”
“And she did so?”
“I don’t know.”
“Weren’t you there? Didn’t she deliver the package to you?”
“She delivered a package to me, but I have no way of knowing whether it was the same package that I put in the golf bag. I will add by way of explanation that I had taken steps to identify the contents of that package by carefully sealing the paper and affixing a label to the outside identifying the contents of the package. When the package was delivered to me the seals had been cut, the package had been opened, and I have no way of knowing whether the contents of the package had been substituted.”
“The article that you put in the package was a gun, was it not?”
“Yes, sir.”
“A thirty-eight-caliber Smith and Wesson revolver?”
“Yes, sir.”
“And that was the same gun you got from Mr. Mason’s office?”
“I refuse to answer on the ground that to do so may incriminate me.”
“All right. Now, we’ll go back to your meeting with the defendant. Isn’t it a fact that your trip to Mr. Mason’s office was inspired by something the defendant had told you?”
The witness hesitated.
“Well,” Ellis pressed, “isn’t that a fact? Go on, answer the question.”
“I refuse to answer on the ground that to do so may incriminate me.”
“Now, if the Court please,” Ellis said, “it is quite apparent that the witness is attempting to hide behind his constitutional rights and is availing himself of them when there is no legal reason for him to do so. It may be perfectly proper for him to refuse to commit himself in connection with a burglary of Mr. Mason’s office, but as far as his conversation with the defendant is concerned, it was not a privileged conversation and there was certainly nothing that would incriminate him in relating that conversation.”
“May I be heard?” Mason asked.
“Certainly,” Judge Fallon said.
“If it should appear,” Mason said, “that the defendant and this witness conspired to get some evidence from my office, then the taking of the gun would be an overt act which would make him guilty of a separate crime, the crime of criminal conspiracy. Taking the gun is one thing, conspiring to take it is another. They are both crimes.”
“That’s splitting hairs,” Ellis said.
“No, it isn’t,” Mason said. “Whenever you people draw up an information or a complaint against a person you put in just as many counts as you can think of. You put in a count of criminal conspiracy and you put in a count of the criminal act. Then you try to talk a jury into returning a verdict of guilty on every count in the indictment. You claim each count is a separate crime, that you don’t make the law, you only enforce it, that if the legislature has chosen to make it a crime to conspire to commit an unlawful act and a defendant conspires to commit such an act and then does commit the act, he’s guilty of two separate crimes.
“Now, you can’t eat your cake and have it too.”
Judge Fallon twisted his lips in the ghost of a smile.
“I think the point is well taken,” he ruled. “I fail to see that the conversation is pertinent or relevant unless it had to do with some aspect of this crime, and if it does it may well be that the defendant and the witness did conspire to do certain things and the witness has grounds to feel that answering the question would tend to involve him in a crime of conspiracy.”
“All right,” Ellis said, savagely turning to the witness, “you wrapped a gun in paper and put it in the golf bag, didn’t you?”
“Yes, sir.”