Judge Alvord nodded to the officer.
The officer came forward, took Elliott’s arm and escorted him from the courtroom.
Hamilton Burger turned dramatically. “I call Paul Drake to the stand,” he said. “Paul Drake is here in the courtroom. Come forward and be sworn, Mr. Drake.”
Drake glanced in dismay at Perry Mason.
“Come forward and be sworn, Mr. Drake,” Judge Alvord ordered.
Drake came forward, was sworn and took the stand.
“You are a private detective?”
“Yes, sir.”
“Licensed as such?”
“Yes, sir.”
“And were so licensed on the fourteenth day of this month?”
“Yes, sir.”
“Are you acquainted with Hartley Elliott, the witness who was just on the stand?”
“Yes, sir.”
“I am going to ask you if, on the fourteenth day of this month, in the apartment of Hartley Elliott, number 6-B at the Rossiter Apartments on Blendon Street in this city, you and Perry Mason did not have a conversation with Hartley Elliott. Now, you can answer that question yes or no.”
Drake hesitated, finally said reluctantly, “Yes.”
“I am going to ask you,” Hamilton Burger said, “if at that conversation and in the presence of Perry Mason as attorney for the defense you did not ask Hartley Elliott what had happened on the morning of the thirteenth and if Hartley Elliott didn’t then and there tell you that he had seen Glamis Barlow at about eight thirty on the morning of the thirteenth, dash from the door of the workshop, previously referred to in this testimony and shown on the diagram, People’s Exhibit B, and run around the corner of the house.”
Mason got to his feet. “Just a moment, if the Court please,” he said. “I object to the question on the ground that it calls for hearsay testimony.”
“It is by way of impeachment,” Hamilton Burger said.
“There is nothing to impeach,” Mason said. “Even if Hartley Elliott had testified that he hadn’t seen Glamis Barlow on the morning of the thirteenth it would still be an improper question. An attorney cannot impeach his own witness.”
“He can if he shows surprise at the answer of the witness,” Hamilton Burger said.
“Are you prepared to state that you were surprised?” Mason asked. “Hadn’t Hartley Elliott told you before you ever put him on the stand that he would refuse to answer any question as to what had happened on the morning of the thirteenth?”
Hamilton Burger’s countenance showed that the shot had told.
“I am waiting to see if you can assure the Court such is the fact,” Mason said.
“That is immaterial,” Hamilton Burger blurted.
“No, it isn’t immaterial,” Mason said. “You can’t impeach your own witness unless you can show surprise. You can’t impeach any witness except by showing that at some time he has made a statement contrary to the testimony he has given, and even then the testimony by way of impeachment cannot be considered as evidence of the facts stated but only as evidence that the witness has made a contradictory statement at some time and that his veracity is thereby brought into question.”
“I think that is the law,” Judge Alvord said.
Hamilton Burger’s face reddened. “Your Honor,” he said, “the prosecution doesn’t want to be boxed in by a lot of technicalities. The prosecution has reason to believe that Perry Mason and Paul Drake, his detective, had a conversation with Hartley Elliott on the fourteenth, that as a result of that conversation Hartley Elliott hurriedly left his apartment shortly before the police arrived, that he went to a motel where he registered under an assumed name and tried to keep out of circulation so that he could not be found and couldn’t be questioned by the police or subpoenaed as a witness in this case.
“Now then, if the Court please, we believe that Hartley Elliott actually saw Glamis Barlow run from the workshop and that he told Paul Drake and Perry Mason that, and I think it is a reasonable inference that his disappearance was connected with the conversation he had with those two gentlemen.”
Judge Alvord glanced at Perry Mason.
Perry Mason said, “That’s a theory the prosecutor has, Your Honor, but I still submit that he can’t prove any fact in this case against the defendant by hearsay testimony. He has to produce some direct testimony if he wants to show motivation for the murder of Vera Martel, which apparently he is trying to show. He has to show that by direct evidence, not by what some witness may have told someone. If he wants to impeach a witness he has to be governed by the rules of impeachment.”
“And you object to the question?” Judge Alvord asked.
“We object to it on the ground that it is incompetent, irrelevant and immaterial, that it calls for hearsay evidence, that it is an attempt by the prosecutor to impeach his own witness.”
“The objection is sustained,” Judge Alvord said.
Hamilton Burger, his face flushed, snapped, “That’s all, Mr. Drake. You may step down from the stand. You may also remember that you are licensed as a detective and that that license is coming up for renewal.”
“If the Court please,” Mason said, “we object to the prosecutor threatening the witness and we respectfully submit that it is no breach of ethics to fail to answer a question which the Court has ruled calls for inadmissible testimony. In fact, if the witness had volunteered to answer the question after the objection was sustained, he would have been in contempt of court.”
Judge Alvord suppressed a smile. “Very well,” he said. “The district attorney is admonished not to attempt to intimidate witnesses. The Court has ruled the question called for an answer which would have been inadmissible, the objection to the question was sustained. The witness would have been out of order if he had volunteered the information. The rebuke is uncalled for, Mr. District Attorney.
“Call your next witness.”
Hamilton Burger, his face flushed with anger, said, “If the Court please, I’m going to get at this another way. Call Glamis Barlow to the stand.”
Judge Alvord stroked his chin reflectively. “Miss Barlow is in court?” he asked.
“I have had her subpoenaed, and since she is a material witness and I am afraid she may leave the jurisdiction of the court I arranged to have her taken into custody a few hours ago.”
“I don’t know just what you are trying to accomplish, Mr. District Attorney,” Judge Alvord said. “This Court is conducting a preliminary hearing. The only purpose of a preliminary hearing is to show, first, that a crime has been committed; second, that there is probable cause to believe the defendant is connected with the perpetration of the crime. The function of this Court is not to act as a grand jury.”
“I understand that, Your Honor,” Hamilton Burger said coldly.
“Now, I also realize,” Judge Alvord went on, “that under the law of this state, where a person has been called as a witness at a preliminary hearing and has either been cross-examined by the defense, or counsel for the defense has had an opportunity to cross-examine that witness, if anything should happen that at the trial of the case the witness is unavailable, either party can read the testimony of that witness into evidence; that is, the testimony of the witness as given at the preliminary examination.”
“Yes, Your Honor.”
“Now, therefore,” Judge Alvord went on, “it sometimes happens that a district attorney who has a witness who can give important testimony in a case and who he fears may have either died or removed from the jurisdiction of the court by the time the case is called for trial in the Superior Court, can produce a witness at a preliminary hearing and thereby fore-stall difficulties which may arise if the witness is not available at the time of the trial.”