Erle Gardner - The Case of the Substitute Face

“Well,” she said, and hesitated.

“Isn’t it a fact,” Mason asked, “that immediately after this occurrence, you talked with the young woman who shared your cabin and then and there told her that when Mrs. Moar started to drag her husband to the rail you had lost your footing and hadn’t seen what happened, but had heard the second shot and then saw Mrs. Moar running down the deck alone?”

“Well, if she didn’t shoot him and pitch him overboard, who did?” she asked.

“That,” Mason said, “is the point the Court will be called upon to determine. Now, isn’t it a fact that you didn’t see what happened there at the rail?”

“Well... no, I saw it.”

“But didn’t you state at a time when the occurrence was more fresh in your memory that you hadn’t seen it?”

“Well, perhaps I did.”

“Which is right?” Mason inquired. “What you said then or what you say now?”

“Well...”

“Answer the question,” Mason insisted as she hesitated.

“Well,” she said, “I didn’t see... that is, I didn’t actually see with my own eyes Mrs. Moar lift her husband to the rail and drop him overboard. But I did hear the shot.”

“And you didn’t see Mrs. Moar shoot her husband the first time, did you?”

“Well...”

“That shot,” Mason reminded her, “was fired when you were, half way up the stairs.”

“Well, no. I didn’t see her shoot him.”

“Then you don’t know of your own knowledge that she fired either one of the shots, do you?”

“Well, I guess that when a woman...?”

“Of your own knowledge,” Mason interrupted. “You don’t know, do you?”

“I don’t know absolutely, no.”

“Now then,” Mason said, “let’s check up for a moment on the manner in which you were dressed at the time.” He walked over to the table where his briefcase was reposing, took from it a photograph, offered it to Scudder for inspection and then passed it to the witness. “I show you what purports to be a flashlight photograph of a group in evening clothes, and in which you are standing the second from the left. Is that the dress you wore on the night in question?”

“Why... yes,” she said, staring at the picture. “I remember when that picture was taken, but I didn’t have any idea...”

“Save only and solely for a beret and a raincoat, that’s exactly the way you appeared when you were on the deck at the time Mr. and Mrs. Newberry walked past you?”

“Why... yes, I guess so.”

“And that photograph shows you exactly as you were at the time of the captain’s dinner?”

“Yes.”

“To all practical intents and purposes, that photograph of you might have been taken at the time of the captain’s dinner?”

“Yes.”

Mason said, “By the way, Miss Fell, may I see your glasses?”

“You may not,” she snapped.

Judge Romley said, “What is the purpose of this, Mr. Mason?”

Mason said, “Your Honor, this witness has testified that this photograph shows her exactly as she was at the time of the captain’s dinner. She has also testified that she went to her stateroom and there picked up a beret and raincoat, but did not pick up anything else. She swears that this photograph also shows exactly the manner in which she appeared, save for a cap and raincoat, when Mr. and Mrs. Moar walked past her on deck. Now then, if the Court will notice this photograph...”

Mason passed the photograph up to Judge Romley, who studied it for a moment, nodded, and said, “Very well. Miss Fell, you will please let Mr. Mason inspect your spectacles.”

With an air of outraged dignity, the witness removed the glasses and handed them to Mason.

“Ah, yes,” Mason said, “I see the resemblance now. The reason I hadn’t thought it was such a good photograph before, was that you weren’t wearing spectacles in the photograph. I believe it’s your invariable custom to leave off your spectacles when you dress formally, isn’t it, Miss Fell?”

“Well,” she admitted, “I don’t think a woman looks as attractive in spectacles when she’s attending a formal function. In my own case, I think my appearance is...”

“Exactly,” Mason said. “And, of course, you weren’t wearing your glasses when you went on deck after the captain’s dinner?”

“Well, I...”

“Because, if you had been,” Mason went on to point out, “with the rain beating down in torrents, the lenses would have been covered with moisture and you couldn’t have seen things clearly.”

“No,” she said emphatically, “I was not wearing my glasses.”

“I thought not,” Mason said, still holding her glasses in his hand. “Now then. Miss Fell, about how far were you from Mrs. Moar when you climbed the stairs to the boat deck?”

“You mean when she was standing over the body of her husband?”

“Yes.”

“I said fifty or sixty feet.”

Mason backed away from the witness, to stand just in front of the deputy district attorney. “This far?” he asked.

“Certainly not,” she said. “I said fifty or sixty feet. You’re not over twenty feet away from me. You can’t trap me that way, Mr. Mason.”

“Then I am standing at only about a third of the distance at which you saw Mrs. Moar, is that right?”

“Yes.”

“Now, was there as much light on the deck as there is in this courtroom?” Mason asked.

“Of course not.”

“Well, how much was there?”

“Not very much,” she said, “but enough came through the hospital door so you could see objects.”

“Would you say a third as much light as there is here in the courtroom?”

“Probably not that much.”

Mason nodded. “Now you’ve identified a photograph which has been introduced in evidence as being that of the gentleman who was traveling on this ship under the name of Newberry, the man who was the husband of this defendant.”

“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.”