Erle Gardner - Beware the Curves

“And what did Mrs. Endicott say?” Irvine asked.

Quinn had his assurance back. He was on his feet with a roar. He accused the district attorney of misconduct. He objected to the question. He moved to strike out the entire evidence of the witness. Anything that had been communicated to Elizabeth Endicott was not evidence against the defendant and the district attorney knew it. This was an insidious attempt to prejudice the jury. It constituted prejudicial misconduct. Quinn assigned it as such, and asked the Court to disregard the statements of the witness and to admonish the district attorney.

Judge Lawton took rather a serious view of the matter. He called Irvine to account. “Just what is the position of the prosecution in this matter?” he said. “How do you contend that any communication made to Mrs. Endicott is binding in any way upon the defendant?”

“We propose to show that Mrs. Endicott communicated what she had learned to the defendant,” Irvine said.

“You are prepared to show that?”

“Well, by inference,” Irvine said.

Judge Lawton’s face colored. “Do you have first person evidence that will support that inference, Mr. Prosecutor?”

Irvine hedged. “Well, Your Honor, I think certain events speak for themselves. I think that the jurors should be permitted to draw an inference.”

“I asked you a direct question,” Judge Lawton interrupted. “Do you have first person, definite evidence which will give facts from which such an inference can be supported — as a matter of law now, not on a hope-so basis but on a legal basis?”

Irvine ran his hand around his collar. “I dislike to disclose my case in advance,” he said. “If the Court will bear with me in this matter, I feel certain that it will be connected up.”

“How?” Judge Lawton snapped.

“By circumstances and by the defendant’s own admission,” Irvine said.

Judge Lawton said, “It is up to the trial court to control the order of proof. I feel that this testimony could be highly prejudicial unless it is connected up. Before any more questions are asked of this witness, I suggest that you put on any evidence you may have showing how you propose to connect up this statement, how you propose to bring it home to the defendant.”

“If the Court please, I’m not finished with this line of testimony,” Irvine said.

“You’re finished with it as far as this Court is concerned, and as far as this witness is concerned, until you show how you are going to connect it up,” Judge Lawton said. “The Court controls the order of proof and the Court intends to protect the rights of the defendant in this matter. The Court feels that something is required other than the assurance of the prosecutor that the matter is going to be connected up.”

“Very well,” Irvine said, “may I withdraw this witness for a moment and put on another witness?”

“That witness is for the purpose of connecting up the testimony of this witness?”

“Yes, Your Honor.”

“Very well,” Judge Lawton said. “Now let’s have no misunderstanding in the records as to what is happening. The motion is before the Court to strike the entire testimony of this witness from the record. A motion is before the Court to instruct the jury to disregard the questions and answers of this witness and to admonish the district attorney for prejudicial misconduct. The Court reserves the ruling upon all of those motions until the testimony of this next witness.

“You are at liberty to leave the witness stand temporarily, Miss Manning, but don’t leave the courtroom. Your testimony is not concluded. You are to be cross-examined upon your testimony. You are temporarily withdrawn so that the prosecutor may call his next witness.

“Now then, Mr. District Attorney, put on the witness by whom you hope to connect up this testimony with the defendant.”

“Very well, Your Honor,” Irvine said with poor grace. “Call John Small Ormsby.”

Ormsby looked new all over. He had new shoes, a new ready-made suit, a new necktie and a new haircut. He looked a bit uncomfortable.

Ormsby, it turned out, was serving a sentence in the county jail. He had been convicted of having marijuana cigarettes in his possession. He had copped a plea and was serving a six months’ sentence. He had ingratiated himself to the officers, had become a trusty, had been placed in the cell with John Dittmar Ansel, and had had a conversation with Ansel.

“What was the conversation?” Irvine asked.

Ormsby shifted his position on the witness stand, crossed his legs and the light glinted from his new shoes. “Well,” he said, “it seems Ansel had just come back to his cell from a talk with his lawyer, and his lawyer had given him a rough time.”

“Now just a minute,” Judge Lawton interrupted. “We don’t want you to testify to any of your conclusions. Just what was said?”

“Yes,” Mr. Irvine said unctuously, “what was said? Did Mr. Ansel say that his lawyer had given him a rough time?”

“Those were his exact words,” Ormsby said. “He said his lawyer had given him a rough time.”

“And what did he say after that?”

“He said that he’d broken down and told his lawyer about packin’ a rod when he went out to call on Endicott that night. He said he’d tossed the rod out of the window into the shrubbery — into the hedge running along there.”

“What else did he say?” Irvine asked.

“Well, he said he thought he’d made a mistake telling his lawyer about that. He said it seemed to sort of take the starch out of his lawyer.”

The eyes of the jurors swiveled to Barney Quinn. Quinn had the presence of mind to throw back his head and laugh silently.

“What else?” Irvine asked.

“Well, he said that Mrs. Endicott had told him about some secretary who got sacked telling her all about how Endicott had sent him—”

“Now, by him you are referring to Ansel?”

“That’s right. Ansel said this secretary had told Mrs. Endicott all about how Endicott had deliberately sent him up the Amazon so he could be put out of the way, and knowing that he was going to get killed.”

“Did he say anything else?”

“That was about all. He was going over it two or three times with me. He asked me if I thought he’d made a mistake telling his lawyer about the gun.”

“Cross-examine,” Irvine said to Quinn.

“He told you he’d thrown a gun out of the window?” Quinn asked, smiling disdainfully.

“That’s right.”

“He said that was his gun?”

“Yes, sir, that’s what he said.”

“That he had taken it with him when he went to call on Endicott?”

“Yes, sir.”

“Did he say why he’d thrown it out of the window?”

“Well, he said he got a little sick to his stomach.”

“What made him sick to his stomach? Did he say?”

“The thought of the girl he loved being married to a guy like Endicott.”

“Now then,” Quinn said, pointing his finger at the witness, “did he say he had fired the gun?”

“No, sir.”

“Did he say that he hadn’t fired the gun?”

“That’s what he told me, that he hadn’t fired it.”

“Now then, did he tell you anything about when Mrs. Endicott had told him about the secretary talking to her?”

“No, sir, he didn’t.”

“But you got the impression that it was long after the death of Endicott that he was told about that, isn’t that correct?”

“I object,” Irvine said. “His impression is not important. The question calls for a conclusion.”

“Sustained,” Judge Lawton said.

“Didn’t he tell you that he hadn’t seen Mrs. Endicott until after Endicott met his death?”

“Yes, sir, he did.”