“Yes.”
“I’ll show you another photograph,” Mason said, “of Mr... er... I never can get that name straight.... Paul, where’s that photograph?”
Drake handed Mason a rolled photograph.
Mason, still standing in front of Scudder, said, “This is a life-size photograph, Miss Fell. I’ll ask you if you can identify it.”
He unrolled the photograph she glanced at it and nodded her head.
“And this is the man whom you saw pushed overboard?” Mason asked.
“Yes.”
“And it was this man’s lifeless figure which you saw lying on the boat deck, with Mrs. Moar, the defendant in this action, standing over it?”
“Yes.”
Judge Romley suddenly frowned and leaned forward to stare at the photograph, glanced from Mason to Scudder. A smile twitched at the comers of his lips.
Scudder, noticing the expression on the judge’s face, became instantly suspicious. He said, “It is customary, if the Court please, that the opposing Counsel inspect a photograph before a witness is examined on it.”
“I beg your pardon,” Mason said urbanely, “I did overlook that, didn’t I? It happens, Mr. Scudder, that the photograph I hold in my hand is a life-size photograph of Mr. Donaldson P. Scudder,” and Mason turned so that the photograph was visible to Scudder and to the courtroom.
The bailiff vainly pounded with his gavel, seeking to restore order. Judge Romley fought to keep a smile from his lips, while Scudder, his face red, shouted indignant protests which went unheeded.
When order had been resumed, Scudder shouted. “Your Honor, I object. This is not proper cross-examination. It’s unethical. It takes an unfair advantage of the witness. Counsel distinctly told her that he was showing a life-size photograph of the decedent, Mr. Carl Waker Moar.”
“Counsel told her no such thing,” Mason said.
“I think Mr. Mason is right,” Judge Romley ruled. “I remember particularly that he said, ‘Mr... er... and hesitated, then said, ‘I never can get that name straight.’ Of course it was an attempt to entrap the witness, but, as Counsel has so aptly pointed out, this witness is educated and should be able to take care of herself on cross-examination. Her identification of the photograph has been most positive.”
Mason turned to the witness. “Will you kindly explain, Miss Fell, how it is that you have now testified that it was Mr. Donaldson P Scudder, the deputy district attorney, whom you saw lying lifeless on the deck, whom you saw thrown overboard, whom...”
“You had my glasses,” the witness said acidly. “You lied to me about that photograph, Mr. Mason. I took your word for it.”
Mason, still holding the photograph, said, “But you didn’t have your glasses on the night in question, Miss Fell. Whose word are you taking for what happened then?”
She was silent.
“Now, will you kindly tell us how it is that when I show you a life-size photograph, standing within one-third of the distance at which you have testified you saw the defendant on the deck of the steamship, in a room which you admit is more than three times better lighted than that deck, under conditions, therefore, which are far more favorable than those which existed at that time, you are unable to distinguish between a life-size photograph of Mr. Scudder and a photograph of Mr. Moar?”
The witness said, “If you will kindly return my glasses, Mr. Mason.”
Mason said, “In other words, Miss Fell, without your glasses you can’t identify faces at this distance, can you?”
“I can identify figures.”
“Exactly,” Mason said, “by the way they are dressed. Is that it?”
“Well, that’s partially it.”
“In other words,” Mason went on, “while Mr. and Mrs. Moar passed closely enough to you when you were standing on the lower deck so you could recognize them, by the time you had gamed the boat deck, you were not close enough to them to recognize their faces. You could see figures. You only knew that there was the figure of a man in a tuxedo and a woman in a dark formal gown. Is that right?”
“That’s all I needed to know under the circumstances,” she said.
“But that’s right, isn’t it?”
“I could identify those figures, Mr. Mason. I know the woman was Mrs. Moar. It couldn’t have been anyone else.”
“She was wearing a dark formal gown?” Mason asked.
“Yes. I’ve told you that two or three times already.”
“And isn’t it true,” Mason asked, “that someone wearing a formal gown of any other dark color — for instance a dark blue — would have appeared to you under those circumstances to have been Mrs. Moar?”
“Those were the only ones who had gone up to that deck.”
“But there were other means of gaining that deck?”
“There were other stairs, yes.”
“And someone must have been in the hospital section, to have turned on that light.”
“I don’t know how it was turned on.”
Judge Romley said, “Just a minute, Mr. Mason.” He bent forward to regard the witness with frowning disapproval. “Miss Fell,” he said, “this is a murder trial. You’re in a court of justice. You are testifying under oath. This is not a game of wits which you are playing with opposing Counsel. This is a serious matter. Apparently your vision without your glasses is very much impaired. Now then, I want you to answer Mr. Mason’s question.”
“What question?” she asked.
“If the only thing you can absolutely swear to is that you saw two figures on the boat deck, but that you can’t positively identify either of those figures.”
“Well, I guess I saw them when they walked by me on the lower deck...”
“I’m not talking about the lower deck now,” Judge Romley said. “I’m talking about the boat deck.”
“No,” she admitted after a moment’s consideration, “I can’t identify the figures I saw on the upper deck.”
“That,” Mason said, surrendering her glasses with a bow, “is all. Thank you very much, Miss Fell.”
Scudder hesitated for a moment, then said, “That’s all.”
Aileen Fell adjusted her glasses, glowered at Perry Mason, and, chin in the air, marched across the railed enclosure to take her seat in the courtroom.
“Call your next witness, Mr. Scudder,” Judge Romley said.
“Captain Joe Hanson.”
Captain Hanson, big-bodied, heavily-muscled, clear-eyed, took the stand and regarded Perry Mason with steady gray eyes.
“We will stipulate, to save time,” Mason said, “that this is the captain of the ship on which Carl Newberry, or Carl Moar, as the case may be, sailed from Honolulu; that he was at all times the captain of the vessel; that he is acquainted with Carl Moar, and will identify the photograph identified as that of Carl Moar by the previous witnesses as being that of the passenger who had taken passage on his ship under the name of Carl Newberry, and who occupied cabin three twenty-one.”
“Very well,” Scudder said. “Now then, Captain, can you tell us the condition of the weather on the night of the sixth, at approximately the hour of nine o’clock P.M.?”
“It was blowing a gale from the so’west,” Captain Hanson said. “The rain was coming down in torrents. Visibility was very poor.”
“What was the position of the ship at nine o’clock on that night?” Scudder asked.
“We were just a-beam of the Farallon Islands.”
“And you were within three miles of those islands?”
“Yes, within a mile and a half.
“What about the sea?”
“A heavy sea was running, hitting us on the starboard quarter. The vessel was rolling rather heavily.”