A. Fair: All Grass Isn't Green

“That’s the man I saw.”

“That’s the man who said, ‘I’ll take the gun’?”

“That’s the man who said, ‘I’ll take the gun. You can’t keep it with you in Mexico.’ ”

“Then what happened?”

“Then the door was closed, and after a very few minutes the light went out and some woman whom I couldn’t see opened the door and put a bag and a suitcase on the threshold, and this man who had been waiting in a big car, parked at the curb, came and picked up the bag and the suitcase and put them in the car. Then they drove away.”

“Any questions on cross-examination?” Judge Polk asked.

Newberry said, “I have just one or two questions of this witness. Can you give us the exact time of this conversation Mr. Newton?”

“No, I cannot. I was aroused from sleep and I was annoyed and irritated. In fact, I was so angry I couldn’t get back to sleep for I guess an hour. I know it was before three o’clock because I didn’t get to sleep until after three o’clock. I finally got up and took a couple Bufferin.”

“There’s no question in your mind that the man you saw was Milton Carling Calhoun, the defendant in case?”

“Absolutely no question.”

“Do you wear glasses?”

“I wear glasses when I read, but I can see with glasses at a distance and I saw this man just as plain as day, standing there in the doorway.”

“I think that’s all,” Newberry said.

Roberts said, “If the Court please, that concludes our case. We ask that the defendant be bound over to Superior Court on a charge of first-degree murder.”

I said to Newberry, “Ask for a continuance.”

Newberry shook his head. “It won’t do any good. We aren’t going to put on any defense. I never put on defense at a preliminary hearing. It just tips your hand and—”

I interrupted him to say in a whisper, “They haven’t proven anything except a bare case of circumstantial evidence and—”

“Don’t be funny,” Newberry broke in. “They’ve shown his fingerprints on the houseboat. They’ve shown his ownership of the fatal gun. They have evidence showing that he went to the Maple Leaf Motel at two o’clock in the morning to get the gun. He was going to take care of things to protect his light-of-love. He went out and took matters into his own hands. He killed the dope runner.”

“That’s not the kind of a man Calhoun is,” I said. “For God’s sake, move for a continuance!”

Judge Polk said, “Gentlemen, is there any defense?”

“A half hour’s continuance,” I said.

Calhoun looked at me and then looked at his attorney.

“A half-hour continuance won’t hurt anything,” he said to Newberry.

Newberry got to his feet reluctantly.

“There seems to be some question as to procedure,” he said. “May I ask for a thirty-minute recess?”

Judge Polk looked at his watch. “The Court will take a fifteen-minutes recess,” he said. “That should be ample for counsel to confer with his client.”

Judge Polk left the bench and retired to chambers.

I grabbed Newberry’s arm and pulled him and Calhoun over to a secluded corner of the courtroom under the watchful eye of the deputy sheriff who had Calhoun in custody.

“You lied to me,” Newberry said to his client.

Calhoun said, “I only lied to you on an unessential matter. It was absolutely vital to me to keep Nanncie out of it. Yes, I did go to the motel. I wanted to get the gun back because I had an idea that I was going to stay and protect Nanncie. But she told me she didn’t have the gun, that she had given it to this writer, this Colburn Hale.”

“And that made you mad?” I asked.

“It made me very angry. I had given her that gun for her own protection.”

“So what did you do?”

“I took her over to the Lucerna Hotel in Mexicali, got her a room and paid for it. Then I came back across the border and registered at the De Anza Hotel.”

I shook my head and said, “No, you didn’t. You drove along the road to that place where the pickup was parked. Now, what caused you to go in that houseboat?”

“I didn’t go in the houseboat,” Calhoun said.

“All right, what did happen?”

Calhoun said dejectedly, “I have held out on you people, I shouldn’t have done it, but I was trying to protect myself.”

“Go on, go on,” I said. “We haven’t got all day. What happened?”

Calhoun said, “When I was driving into Calexico headlights picked up this pickup and the houseboat the trailer, and as they did I saw a man jump out of door of the houseboat, hit the ground in a flying leap start running just as fast as he could go over toward the drainage ditch. After he got a few yards over there on angle, he got out of the range of my headlights.”

“And what did you do?”

“It was around two o’clock in the morning. I stopped my car, went over to the houseboat and called out, ‘Is everything all right?’

“There was no answer. I rapped with my knuckles the door. That was probably when I put my left hand against the side of the houseboat to brace myself. And then I thought better of it. After all, it wasn’t any of my business. I called out again, ‘Is everything all right there?’ I received no answer so I got back in my car drove on to Calexico.

“I went at once to the Maple Leaf Motel and I did have the conversation with Nanncie that this man overheard. I took Nanncie across the border to a hotel where I thought she would be safer than in that Maple Motel. And I wanted to get her out of the clutches of writer friend of hers.”

“What about the gun?”

“I did tell her that I’d take the gun back because knew it would make complications if she had a across the border in Mexico, and she told me she didn’t have it, that she’d loaned it to Hale.

“I’ll admit I became angry. I had given her that for her personal protection. Certainly not with the idea that she was going to pass it around to some down-at-the-heel writer friend.”

I turned to Newberry. “All right,” I said, “you’re going to have to use heroic measures.”

“What do you mean?”

I said, “They’re going to bind him over for trial unless you pull a fast one.”

“They’re going to bind him over for trial in any event. I’m not even going to object. I’m not going to put up a whisper of an argument except that I’m going to put up the old song and dance that there’s nothing in this case except circumstantial evidence; that they can show that the murder was committed with his gun and that there are fingerprints on the houseboat, but they can’t tell when those fingerprints were made or who was holding the gun when it was fired. The fingerprints may have been made at any time.”

“And your client is going to get bound over.”

“He’ll get bound over.”

I looked at Calhoun. “Do you like that?”

“Good God, no!” Calhoun said.

“But you can’t stop it,” Newberry said, “He’s stuck.”

“Not if you play it right,” I told him.

Newberry looked at me with sudden distaste. “Are you,” he asked, “now trying to tell me how I should handle this case?”

I looked right back at him and said, “Yes.”

“Well, don’t do it,” Newberry warned. “I don’t know just how you fit into the picture, Lam, but I think you’re in this thing up to your necktie. Are you sure that you weren’t the man Calhoun saw running out of the houseboat trailer?”

“I’m sure I wasn’t the man he saw,” I said, “and if you use your head a little bit we may be able to knock this whole thing into a cocked hat right now.”

“You’re crazy,” he told me. “It’s an axiom of criminal law that you can’t do anything on a preliminary examination, You cross-examine the witnesses, you get as much of the prosecution’s case as you can, and then you just ride along with the punch.”