The coroner looked across at Overmeyer, and the deputy district attorney got to his feet, moved over toward the witness and said, “Could you be sure it was Mr. Driscoll you saw at the telephone?”
Weyman said in his thick, surly voice, “The telephone sets right up against the window. This guy was standing, leaning his shoulder against the side of the window. I could see his back and the back of his head. He had the same kind of black curly hair this Driscoll has. When he came out of the house I could see his face. The man who came out was Driscoll. I know that. I think he was the one who was telephoning.”
“You’d been drinking at the time?”
“I’d had a few, yes.”
“More than you’ve had now?”
There was a half smile on Weyman’s face as he said, “A lot more.”
“Are you positive about the time?”
Weyman shook his head and said, “No, I’m not. They told me the accident took place at noon. If that’s true, then the rest of it’s okay. If it ain’t true, I don’t know what time it was. All I know is I’d been standing around there for about ten minutes before the accident, and I saw this man telephoning.”
Overmeyer frowned thoughtfully and said, “That’s all. I may want to talk with you again about this, Mr. Weyman.”
Mason said, “May I ask one question?”
Scanlon nodded.
“Whom have you told about what you saw?”
“I told my wife,” Weyman said.
“Anyone else?”
Weyman shook his head.
“Did you tell her about this as soon as you got home?” Mason asked.
“No,” Weyman said with a wry grin. “We talked about other things right after I got home.”
Again a titter swept the room.
“That’s all,” Mason said.
Scanlon nodded to Weyman. “You’re excused, Mr. Weyman,” he said.
Rodney Cuff got to his feet and said, “I wish to point out that in view of the testimony of this witness, and the fact that we can show definitely the automobile accident took place almost exactly at the hour of noon, it was impossible for Jimmy Driscoll to have killed Walter Prescott.
“I think you can see what this means,” Cuff went on, staring steadily at the deputy district attorney. “It means that sometime after Rosalind Prescott and my client had gone to Reno, and while Rita Swaine was in the house, Walter Prescott arrived. I won’t presume to conjecture what happened, but Rita Swaine killed him. From what my client tells me of Rita Swaine, I presume that the provocation was great. Perhaps it was self-defense, or—”
“If Counsel is going to make an argument,” Perry Mason said casually, “I want to make one.”
“He isn’t going to make one,” Scanlon ruled. “Sit down, Mr. Cuff.”
“I merely wanted to point out that—”
“You’ve already pointed out plenty. Sit down.”
Oscar Overmeyer frowned thoughtfully, looked up at the coroner and said, “I had intended to prove by the canary itself that it probably wasn’t Rita Swaine whom Mrs. Anderson had seen in the solarium. The admission of the witness Driscoll makes this unnecessary.”
Mason said, “In view of what has been said by Counsel, I’d like permission to recall the autopsy surgeon for a few questions.”
“No objection,” Overmeyer said. “My office wants to get to the bottom of this thing as well as the coroner.”
“The coroner’s going to get to the bottom of it,” Scanlon said cheerfully. “Dr. Hubert, take the stand again.”
When the doctor had seated himself, Mason said, “In view of the statements which have been made, Doctor, I think you can well appreciate the importance of being absolutely accurate in your testimony as to the time of death. You have already answered this question in effect, but in view of the importance which now attaches to this phase of the case, I want to ask you again: Is it possible that Walter Prescott could have met his death earlier than within the time limits you have previously mentioned?”
Dr. Hubert crossed his legs, interlaced his fingers upon a paunchy stomach, cleared his throat and said, “I don’t want to be misunderstood. Medical testimony as to the time of death is never absolutely mathematical. There are certain variable factors the exact nature and extent of which cannot be intelligently correlated. Therefore, an autopsy surgeon fixes a probable time of death. Then, taking into consideration all of the variable factors, he creates a margin of probability on either side of the time chosen. If he is conscientious, he extends this margin of probability so that it covers every possible combination of variable factors. Then he announces the time of death in terms of a time bracket.”
“You did this?” Mason asked.
“Yes.”
“And when you said that the time of death occurred between noon and two-thirty in the afternoon, do I understand that you estimated, purely as a matter of blind reckoning, that the decedent met his death at approximately one-fifteen; that it was possible, however, certain variable factors, as you have termed them, might have caused an error in your deduction; that you, therefore, made a maximum allowance of one hour and fifteen minutes in either direction as the greatest possible margin of error in your time fixing?”
“That’s approximately correct,” Dr. Hubert said. “Personally, I would say the man was killed between one and one-thirty. Eight or nine times out of ten, I’d be right. But there’s the possibility of a combination of various circumstances which would impair the conclusion in perhaps one out of ten times. So I’ve taken that into consideration, and extended the margins far enough both ways so as to include even that one time in ten.”
“And can you say that twelve o’clock is the earliest possible time at which the decedent could have met his death?”
“Yes.”
“According to your own testimony, Doctor, the man could have died at one minute past twelve, noon.”
“That’s right.”
“He could have died at noon?”
“Yes, sir.”
“But he couldn’t have met his death at eleven fifty-nine?”
“Oh, I say,” Dr. Hubert said, “that’s rather an unfair way of putting it.”
“I don’t think so,” Mason said.
“Well, yes, of course,” Dr. Hubert said, somewhat testily, “if you’re going to split hairs that fine, if the man could have died at twelve o’clock, he could also have died at eleven fifty-nine. I don’t think he did, but he could have.”
“How about eleven forty-five?”
“A witness heard him speaking on the telephone at eleven fifty-five,” Dr. Hubert pointed out acidly.
“Exactly,” Mason said. “Now you have my point exactly, Doctor. When you fix the earliest time at which the man could have met his death as around twelve o’clock, you’re taking into consideration that the man, according to the testimony of one witness, had been alive at eleven fifty-five, isn’t that right?”
“No.”
“Yet, when I ask you if it isn’t a medical possibility that the man could have been killed at eleven forty-five, you answer me by pointing out that according to the testimony of a witness, he was alive at eleven fifty-five. Now then, Doctor, are you testifying as to your medical knowledge, or as to an opinion formed by taking into unconscious consideration the testimony of witnesses?”
“I’m testifying as to a medical opinion formed from a post-mortem examination of the decedent.”
“Let’s get at it in another way, Doctor. You have mentioned one case in ten in which a combination of variable factors might necessitate moving the time bracket over a wider range. Now, isn’t it possible that there is, perhaps, one case in a thousand, or one case in ten thousand, which would necessitate moving the brackets over a still wider range than would be covered by that one case in ten which you mentioned?”