“Now we come to another and similar situation. A man establishes his identity by going under a certain name. If a man goes under a certain name, that is all that is necessary to establish at least a claim to identity. In the present case, we propose to show that the decedent went for many years under the name of Bill Hogarty, that it was under this name, he met and prospected with Leeds in the Yukon...”
“I understand,” Judge Knox said, “but this question asks the witness to repeat something which the decedent told him. It is your contention that this is part of the res gestae?”
“Yes, Your Honor.”
Judge Knox frowned. “I’m going to reserve a ruling on that question for the moment,” he said. “The court is inclined to think that there should be some foundation in the case for supporting the contention that this is a part of the res gestae.”
“I was trying to show that it was, by this very question, Your Honor.”
“I understand that,” Judge Knox said patiently, “but I think you had better first lay a foundation so that the court can determine intelligently how much of a time factor is to enter into the determination of the res gestae.”
“And,” Kittering pointed out, in a sudden burst of inspiration, “there’s no objection on the part of counsel for the defense.”
Judge Knox’s face showed a flashing expression of surprise. He glanced down at Perry Mason, frowned, and said thoughtfully, “I guess that’s right. Do I understand, Mr. Mason, that such is the case?”
Mason said, “Such is the case, Your Honor. There has been no objection.”
“Well,” Judge Knox said irritably, “lay some foundation anyway.”
Kittering said, “I will ask you this question, Mr. Leeds. Did you, during his lifetime, know a Bill Hogarty?”
“Well,” Leeds said hesitantly, “I knew a Bill Hogarty, alias Conway, alias Milicant.”
“How did you know he was Hogarty?”
Leeds said, with what evidently was the manner of one reciting by rote, “In the same way that I know you are Mr. Kittering, the deputy district attorney — because he told me so. He told me his name wasn’t Milicant, that he wasn’t the brother of Emily Milicant, that he was Bill Hogarty, a man whom Alden Leeds thought he had murdered. He said he’d had his nose broken since and put on a lot of weight, and Uncle Alden hadn’t recognized...”
“Just a moment,” Judge Knox interrupted. “I think that answer has gone far enough. The answer, as given, most certainly answers the question, as asked. I think any statement made by the decedent to this witness for the purpose of showing motivation, malice, or bad blood between the parties should not be admitted in evidence unless it is shown that it was a dying statement. And I take it, counselor, your question didn’t call for such a communication?”
“No, Your Honor.”
“Very well. Proceed.”
“Did you see the defendant on the night of the murder — the seventh of this month?”
“Yes.”
“When?”
“At about ten-twenty-five in the evening.”
“Where?”
“Emerging from the room of Bill Hogarty — or John Milicant, whichever you want to call him.”
“Please state exactly what you saw and exactly what you did,” Kittering said.
Leeds told Judge Knox his story. At times, his voice was so low that even the court reporter had difficulty in hearing it. At times, he spoke more freely. Always he tried to push into the background his relationship with Inez Colton.
When he had finished, Kittering, evidently hoping to take Mason as much by surprise as possible, said abruptly, “Cross-examine.”
“That,” Mason said with a suave smile, “is all. I have no questions.”
Leeds seemed nonplused. The deputy district attorney was frankly incredulous.
“Do you mean to say there’s to be no cross-examination of this witness? You aren’t cross-examining on the question of identity?”
“No,” Mason said.
“Very well, the witness is excused, and I will now call one more witness slightly out of order — Mr. Guy T. Serle.”
Judge Knox looked down at Perry Mason. “Any objection, counselor?” he said.
“None whatever,” Mason said.
Serle came slowly forward, was sworn, answered the usual preliminary questions, and then glanced expectantly at Kittering.
“You knew William Hogarty, alias John Milicant, alias Louie Conway, in his lifetime?” Kittering asked.
“I did.”
“You saw him on the evening of the seventh of this month?”
“I did.”
“Where?”
“At his apartment.”
“When?”
“Some time around half past seven or quarter to eight in the evening.”
“Who was present?”
“Just Conway — that is, Hogarty — and myself.”
“How long were you there?”
“Until around twenty minutes past eight.”
“What happened at that time? Just tell the court what was said and what was done.”
“Well, Conway...”
“I think,” Kittering interrupted, “that in view of the proof which we now have available, it will be better, for the sake of the record, if you refer to him as Hogarty.”
“Very well. Hogarty and I had had some business dealings. He’d sold me a business. Police had raided it. I figured it was because of a squawk from one of Louie’s customers or from someone who was gunning for Louie. I told him I thought it was on a tip-off from Alden Leeds. Louie didn’t seem at all surprised. I wanted Louie — Hogarty — to stand back of me. He said he would.”
“Was there any other conversation?” Kittering asked.
“That was the substance of it. Hogarty was interrupted by a lot of telephone calls, and he hadn’t eaten any dinner and neither had I. He told me to call a number that he gave me and order a dinner. I put in the call and the dinner came up. It wasn’t Louie — Hogarty — who called. I did the telephoning. I guess it was right around ten minutes past eight when the dinner arrived. We were both in a hurry and we ate fast. Then I shook hands with Hogarty and left.”
“Wasn’t there some other conversation?” Kittering asked.
“Oh, yes. He told me to call back at ten o’clock, and he’d let me know if things were okay.”
“At what time?”
“Ten o’clock.”
“You’re certain of that?”
“Absolutely.”
“Did you call him back?”
“I did.”
“When?”
“At ten o’clock on the dot. He told me things were okay, that he was to have a conference in about ten minutes and that he expected the conference would take about ten minutes, that he’d be free after that and would be sitting right there waiting for my call.”
“What time did you call him?” Kittering asked.
“At ten o’clock exactly.”
“Cross-examine,” Kittering flung triumphantly at Perry Mason.
Mason said, in a tone of voice which was that of an ordinary, informal conversation, “You felt that Alden Leeds had given the officers the tip which resulted in a police raid on your place of business?”
“I figured that was possible.”
“And Milicant — or Hogarty, whichever he was — also figured that way?”
“Well, he admitted it was possible. We knew Leeds would be gunning for Conway, trying to get him out of the way — only Leeds didn’t know Conway and Milicant were the same, and he hadn’t recognized Milicant as Hogarty. He thought Hogarty was dead. Hogarty said he was going to get Leeds in and tell him he was Conway.”