Erle Gardner - The Case of the Shoplifter's Shoe

“On me,” she said. He nodded again.

“I guess,” she told him, “you’re going to have to rely on your powers of cross-examination, Mr. Mason... What were they doing out there sitting in a parked car where they could see the door of Cullens’ house?”

“They went out to call on Cullens.”

“Why didn’t they call on him, then?”

“When they drove up to the curb, the house was dark. They Were on the point of driving away, thinking no one was home, when they saw the beam of a flashlight playing against the windows. That impressed them as being rather unusual so they sat there in the car watching and then they heard the shots, and, a few moments later, saw you come out of the door and run down toward the sidewalk. That was all they waited for. They stepped on the gas and drove away.”

“That’s what they say,” she observed.

“That,” Mason admitted, “is what they say.”

“And that, as you lawyers have it, puts me at the scene of the crime at the time the murder was being committed.”

“That’s right.”

“It also puts them at the scene of the crime at the time the murder was being committed.”

“Right,” Mason said,

“Can you use that in breaking down their story in front of a jury?”

“I don’t think so.”

“Why not?”

“In the first place,” Mason said, “there are two of them, and there’s only one of you. In the second place, they can deny that they were in the house, and you can’t deny anything. In the third place, the district attorney will be giving them the sanction of his official blessing, which will indicate that he believes their story. In the fourth place, there’s no circumstantial evidence involving them, and there’s plenty of circumstantial evidence involving you. They found a gun in your bag. They found the diamonds in your bag.”

“As I understand it,” she said, “when I was picked up, I was lying on the pavement where I’d been knocked by the car. My bag was lying close to me, and I believe it was opened.”

“I believe it was,” Mason said.

“Have you asked the man who struck me whether he was absolutely certain the gun was in the bag or was lying so close to the bag that he thought it had been in the bag and had fallen out when the bag was knocked out of my hand?”

“I haven’t asked him that yet,” Mason said, “because I haven’t had an opportunity to cross-examine him.”

“But you will have an opportunity to cross-examine him?”

“Yes, of course.”

“And you will ask him that?”

“Yes.”

“Suppose he says the gun wasn’t actually in my bag, but was lying on the street so close to it that he thought that it had been in the bag?”

“That,” Mason said, “would be a break for you.”

“And you’ll remember to ask him particularly about that?”

“Yes.”

“And if they can’t show that the gun was in my bag,” she said, “why then...” Her voice trailed away into silence.

“Then, of course,” Mason said, “we can probably get someone on the jury to believe that the gun had been thrown from the blue sedan which had been parked in front of the house and just happened to be near where your bag struck when it was knocked out of your hand.”

“You can’t tell,” Mrs. Breel said, “but that I might have seen the gun lying there in the street and was running toward it to pick it up when the automobile struck me.”

“Could you,” Mason asked, “remember that that is what happened?”

“No, I can’t remember anything.”

“It would help,” Mason told her, “if you could remember it about that way.”

“I’m sorry. I can’t remember a thing.”

Mason said, “Okay. It’s up to you.”

“I’d like to ask you a couple of questions,” she said.

“Go ahead,” Mason invited.

“As I understand it, one person can kill another in self-defense, and it doesn’t constitute any crime. Is that right?”

“That’s right.”

“And what is meant by self-defense?”

“The fear of death or great bodily harm.”

“Any particular circumstances in connection with that?”

“A person must be threatened by someone who seems to have the intention of inflicting death or great bodily harm, and who apparently has the present ability to carry out that threat.”

“Then what?”

“The person may shoot in self-defense.”

“Let us suppose,” she said, “that someone was in Austin Cullens’ house. Could that person very well claim that he — or she — had been forced to kill Cullens in self-defense?”

“Not very well.”

“Why not?”

“Because,” Mason said, “when a person wrongfully and feloniously enters the house of another person, he has forfeited his legal rights. He is then committing a felony. The owner of the premises has the right to defend himself against the intruder. The intruder has no right to defend himself against the owner of the premises.”

“How do you know that the persons who entered the premises did so unlawfully?”

“There is,” Mason pointed out, “the matter of a device used to short circuit the fuses in the event the lights were turned on. That indicates a felonious breaking-in entry.”

“Then if a person had illegally entered the house, that person couldn’t have killed Austin Cullens in self-defense?”

“Under certain circumstances, yes,” Mason said, “but you could never get a jury to believe those circumstances existed. In the minds of the jury and, save for certain exceptions, within the compass of the law, a man’s house is his castle. Within that house, he has the right to do pretty much as he pleases. A person who makes an illegal entry takes his life in his hands. A man has the right to defend his home, his life, and his property. The person who makes an illegal entry is presumed to be the aggressor. Whatever the householder did under those circumstances would be considered as defending himself, not as in the nature of an attack.”

“Well,” she said, “it’s most interesting. I wish I could remember what happened. It might be of some help.”

“It might ,” Mason conceded without enthusiasm.

“Did these witnesses say anything about how I acted when I came out of the house?”

“Yes. You paused on the front porch long enough to shove something down in that bag of yours, then you ran down to the curb. They recognized you, that’s when they decided to get out of there.”

“I was running?”

“Yes.”

She sighed and settled back against the pillows, “Well, Mr. Mason,” she said, “it’s all very complicated. I’m certain I don’t envy you your job.”

Mason said grimly, “If I lose this case, I’ve just lost a case but if you lose this case, you know what it means to you.”

“I suppose,” she said, “you’re trying to break it to me gently that I’d be convicted of first-degree murder.”

“Yes.”

“And that automatically carries a death sentence with it?”

“Unless the jury recommends life imprisonment,” Mason told her.

“Would the jury do that in my case?”

“It’s hard to tell. It depends on the evidence. It depends on the jury. It depends on the manner in which the prosecutor presents the case. It’s quite possible he could inflame the jury into returning a verdict of first-degree murder without recommendation. On the other hand, the prosecution may not even try to get a death penalty — because of the circumstances. You never can tell.” Mason watched her carefully as she digested that bit of information.

“And first-degree murder with a recommendation?” she asked.

“Life imprisonment,” Mason said.