The witness hesitated, crossed his legs.
“You’re under oath,” Hamilton Burger thundered at him, “and there’s nothing in this question which calls for evidence which will incriminate you in any way. I am asking you if you, for some reason, made an examination of that weapon.”
“Yes, sir. I did.”
“What did you find?”
“I found that the cylinder contained an exploded cartridge,” the witness said.
“What was the condition of the gun when you gave it to the defendant earlier in the evening?”
The witness hesitated. “It was fully loaded,” he said at length.
“You know that of your own knowledge?”
“Yes.”
“How do you know it?”
“Because just prior to leaving Las Vegas, I had reloaded the gun with fresh ammunition. I had reason to believe that I might, later on in the day, be in a position of some danger.”
“And the reason that you went to the apartment of George Casselman later on that evening was that you had reason to believe the defendant might have used the weapon which you gave her to kill George Casselman? Isn’t that right?”
“Objected to, if the Court please,” Mason said, “on the ground that the question is incompetent, irrelevant, and immaterial, and I assign the asking of that question as prejudicial misconduct on the part of the prosecution. This defendant is not bound by any reasoning or any ideas or any surmises or anything else which may have been in the mind of this witness.”
“The objection is sustained,” Judge Decker ruled. “The prosecution certainly should realize that the thoughts within the mind of this witness are not binding upon this defendant. This entire matter is being developed in an exceedingly unusual way. The Court, is mindful of the fact that this is not a case against this witness, but is a case against this defendant, and that her guilt or innocence can only be established by certain pertinent rules of evidence. The jurors are instructed to completely disregard this question by the District Attorney, and also any inference which may have been drawn from that question by the jurors. Proceed, Mr. District Attorney.”
“That’s all,” Hamilton Burger said, smiling triumphantly.
“Just a moment,” Mason said. “I have one question on cross-examination. Why did you give the defendant what the District Attorney has referred to as the Holster Gun, the gun which is now Exhibit Number 30?”
“Because,” Homer Garvin said, “she had at one time been engaged to my son, Homer Garvin, Jr. I had looked forward to having her in the family as a daughter-in-law, and then when it turned out that the engagement had been broken, I suddenly realized — I realized that I loved her.”
Stephanie Falkner, sitting behind Mason at the bar, suddenly put a handkerchief to her eyes and started sobbing.
“Now then,” Mason said, “I will ask you one more question. Prior to the evening of October seventh of this year, had you uncovered information which led you to believe that George Casselman had been the one who had murdered Glenn Falkner, the father of the defendant?”
The effect upon the jurors was electrical.
“Your Honor, Your Honor!” Hamilton Burger shouted, getting to his feet, gesticulating. “That question is absolutely incompetent, the asking of that question is misconduct on the part of the attorney for the defense. It is not proper cross-examination. It is no part of the case. It has no bearing in any way. The prosecution is not bound by anything this witness may have thought.”
“The objection is sustained,” Judge Decker said.
Mason smiled. “Now then did you on the evening of October seventh communicate to the defendant in this case the fact that in your opinion George Casselman had killed her father?”
“The same objection,” Hamilton Burger shouted.
“Same ruling,” Judge Decker said.
“Just a minute,” Mason said. “The prosecution called for part of a conversation which took place when this witness gave the defendant the gun. I am now asking this witness if something to this effect was not said when the gun was given to the defendant. In other words, when the prosecution calls for part of the conversation, I have a right to call for all of it.”
“The witness may answer the question,” Judge Decker ruled, “with the understanding that it will be limited to any statement which was made as part of the same conversation concerning which testimony was given on direct examination.”
“Yes, sir,” Garvin said. “I told her that I felt Casselman had killed her father, and that I was afraid he might try to kill her. I felt that she was in danger and I gave her this weapon so that she could protect herself. I told her to keep it in her possession at all times because I felt that I was in a position to develop a case against Casselman which would enable the authorities to arrest Casselman for the murder of her father and to prosecute him.”
Mason said, “Thank you. That is all.”
“No questions,” Hamilton Burger snapped.
“Now, if the Court please,” Mason said, “I move to strike out the entire testimony of the witness Garvin.”
“On what grounds?” Judge Decker asked.
“On the grounds that there is no evidence whatsoever showing that the defendant knew of the things Garvin was doing or had any inkling of what he intended to do. She is not bound in any way by anything he might have done in the mistaken belief that he was aiding her.
“Let us suppose that for some reason this witness had decided in his own mind that I had killed George Casselman. In order to protect me, he went to the Casselman apartment. He found that Casselman had been murdered but there was no evidence to indicate that I had committed the murder. I had not communicated with him in any way. I had not asked him to do anything. He tried to protect me by removing certain evidence. I certainly am not bound by the fact that he removed that evidence.”
Hamilton Burger still on his feet said, “Just a moment, Your Honor. Just a moment! I want to be heard on this. There are certain peculiar conditions existing in that Casselman apartment. The doorknobs were wiped clean of fingerprints. The footprint of a woman’s shoe, which the evidence now shows to be the defendant’s shoe, was obliterated by this witness. We have a right to show the physical conditions in that apartment and how they occurred.”
“You have a right to show the physical conditions,” Judge Decker said. “You have the right to show that someone wiped the latent fingerprints from the doorknob. But that doesn’t mean that you have a right to show that this was done by some friend of the defendant unless you can show that the defendant had some knowledge of the action and acquiesced therein, or suggested the action in some way.”
“Exactly, Your Honor,” Mason said, and sat down.
Judge Decker frowned. “This entire matter is highly unusual. It has been presented in a most unusual manner, and the Court is willing to confess that when the stock objections as to testimony being incompetent, irrelevant, and immaterial were made almost as a matter of routine, the Court didn’t realize exactly what was in the mind of counsel. The Court feels that counsel should have elaborated upon this point at that time.”
“If I had done so,” Mason said, “and the Court had sustained the objection, the prosecution would have achieved a notable triumph in that the inference would have been plain to the jurors who would have felt that evidence was being withheld on a technicality.”
“Well, there is certainly a part of this witness’s evidence that is pertinent,” Judge Decker said. “He gave the defendant the gun. He testified that, when he gave the defendant the gun, it was fully loaded. He has testified that later on that same evening he saw the gun for the second time, and that at that time it had one empty cartridge in the cylinder.”