A. Fair: All Grass Isn't Green

Roberts said, “You are acquainted with Donald Lam the witness who testified here a short time ago?”

“Yes, sir.”

“And what was he doing when you first saw him?”

“He was walking around the place where all the people were standing.”

“And then what did you see him do?”

“I saw him take off his shoes and socks and cross over the muddy bottom of the drainage ditch.”

“How were you dressed at the time?”

“I had on my pants and a shirt.”

“The pants were long pants?”

“No, sir, they were the kind of an overall pants that had been cut off a little below the knee.”

“And what about your shoes and socks?”

“I don’t have none. I never wear shoes — except a church and — like when I come in here. Shoes hurt my feet.”

“So you were barefooted at the time?”

“Yes, sir.”

“So it meant nothing to you to run across the drainage ditch?”

“No, sir.”

“Now, what caused you to cross the drainage ditch?”

Lorenzo, who evidently had been carefully coached, said, “I saw that this detective man had found something.”

“Now, just a minute, just a minute,” Newberry interrupted. “That question calls for a conclusion of the witness and the answer is a conclusion of the witness.”

Judge Polk was interested. He leaned forward. “The Court will ask a few questions,” he said.

“Young man, was there something in the demeanor of this private detective, Donald Lam, which caused you to believe he had seen something?”

“Yes.”

“What was it?”

“Well, he was walking along, walking along, walking along, and I was watching him, and all of a sudden he stopped still and then turned and started walking out into the alfalfa field; and then he stood with his back to me so I couldn’t see what he was doing and then all of a sudden he turned and started back toward the bank of the ditch.”

“And what did you do?”

“As soon as I saw that he had found something, I ran across the muddy bottom of the ditch, up the bank on the other side, and over in the alfalfa field to where he was standing.”

“Did you run very fast?”

“Very fast indeed, sir. I have my feet very tough. I can run over rocks and the roughness, in the ground just as though I had shoes on — better than if I have shoes on.”

“So then what happened?” the judge asked.

“When this man saw that I knew he had found something was when he told me to go to my parents and have them call the police.”

“Now that, if the Court please,” Newberry said, “is purely a conclusion of the witness, incompetent, irrelevant and immaterial, calling for—”

“Just a minute,” Judge Polk said. “The objection be temporarily sustained, but I want to ask this young man a few more questions.

“Just what did Mr. Lam do which was out of ordinary?”

“Well, he started walking toward the bank of the ditch. Then he had taken a couple of steps and saw me coming running just as fast as I could to join him.”

“So what did you do?”

“I asked, ‘What did you find, mister,’ and he didn’t answer me right away. He sort of thought things over for a little while and then he said, ‘Never mind, but go home at once — do you live near here?’

“I told him I did.

“He said, ‘Go home and tell your father to call police and have them come out at once.’

“So then I said, ‘What did you find?’ and he didn’t say anything, so then I did a little looking and I saw this gun.”

“Was it in plain sight from where you were standing?”

“Not in plain sight, but I would have seen it even if he hadn’t said anything. It was lying where the sun was glinting on the metal enough so that you could see there was something in the alfalfa.”

“I think that tells the story in a manner which is admissible in evidence,” Judge Polk said. “Do counsel for either side wish to ask any more questions?”

“This covers the evidence that I expected this young man to give,” Roberts said.

“Is there any cross-examination?” Judge Polk asked Newberry.

Newberry shook his head emphatically. “No questions,” he said. “I do move, however, to strike out all of the evidence of this witness on the ground that he is too young to understand the meaning of the oath.”

“Motion denied.”

“Upon the further ground that the testimony given by this witness is purely speculative, is not objective, and relates to conclusions formed by this witness.”

“The motion is denied,” Judge Polk said. “I will admit that some of the testimony given by this witness relates to conclusions which he formed in his own mind. But in each instance the basis of those conclusions is set forth objectively in the form of admissible evidence so that any interpolation of what the witness thought or conclusions he reached from what he had seen are immaterial. This is an interesting bit of evidence and I don’t mind stating that the Court is impressed by it, although, of course, at the present time I don’t understand just what it is leading up to.

“Is it your contention, Mr. Prosecutor, that this murder weapon was in the possession of Donald Lam, that it was taken out into the field by Donald Lam and surreptitiously dropped at the spot where it was found?”

“That is correct, Your Honor,” Roberts said.

“Very well, go ahead with the case,” Judge Polk observed, glancing thoughtfully at me.

Roberts called a man by the name of Smith who testified that he was a semi-pro ball player; that he played the position of pitcher; that he had been taken to the scene of the crime by Sergeant Sellers; that he had been given a revolver which was an exact duplicate of the gun introduced as People’s Exhibit B; that it was a Smith & Wesson chambered for five shells with a one-and-seven-eighths-inch barrel; that he had stood by the ditch at the scene of the crime and had thrown the gun as far as he could; that he had thrown it not once but several times, and that he had never been able to throw the gun as far as the spot in which the gun had been found when the police officers arrived.

“Any questions on cross-examination?” Roberts asked.

Newberry shook his head.

“Just a minute, Your Honor,” I said. “Since my integrity is being impugned here, I would like to ask question, whether or not the man tried throwing the from a point farther down the bank or whether he stood right at the scene of the crime, There is no evidence the person who threw the gun had to stand at the scene of the crime and—”

“Now, just a minute,” Judge Polk said. “You are of order, Mr. Lam, although I appreciate the point you are making. If counsel for the defense wishes to bring out the point, he certainly is entitled to do so. On other hand, as far as this Court is concerned, it is self-evident fact. The diagram now shows the alfalfa field and the spot where the gun was picked up. Quite apparently, by moving down the bank of the ditch, throwing the gun straight across, instead of at a diagonal, quite a few feet could have been saved. That is matter of simple mathematics.”

“Just a moment, Your Honor,” Roberts said. “It stands to reason that if the murderer threw that gun he want to get rid of it just as soon as possible. He would have left the trailer, run to the bank of the ditch, trying to dispose of the gun, seen the muddy bottom in the ditch, and decided to throw the gun as far as he could.”

“Are you,” Judge Polk asked, “trying to argue with the Court?”

Roberts thought for a moment, then said, “Well, yes Your Honor.”

“Don’t do it,” Judge Polk said. “There is no more reason for the murderer to have run directly from the scene of the crime at a right angle than there is for him to have angled down so that he came to the bank of the ditch at a point that was right opposite from the place where the gun was found.”