Erle Gardner - The Case of the Substitute Face

“Counsel told her no such thing,” Mason said.

“I think Mr. Mason is right,” Judge Romley ruled. “I remember particularly that he said, ‘Mr... er... and hesitated, then said, ‘I never can get that name straight.’ Of course it was an attempt to entrap the witness, but, as Counsel has so aptly pointed out, this witness is educated and should be able to take care of herself on cross-examination. Her identification of the photograph has been most positive.”

Mason turned to the witness. “Will you kindly explain, Miss Fell, how it is that you have now testified that it was Mr. Donaldson P Scudder, the deputy district attorney, whom you saw lying lifeless on the deck, whom you saw thrown overboard, whom...”

“You had my glasses,” the witness said acidly. “You lied to me about that photograph, Mr. Mason. I took your word for it.”

Mason, still holding the photograph, said, “But you didn’t have your glasses on the night in question, Miss Fell. Whose word are you taking for what happened then?”

She was silent.

“Now, will you kindly tell us how it is that when I show you a life-size photograph, standing within one-third of the distance at which you have testified you saw the defendant on the deck of the steamship, in a room which you admit is more than three times better lighted than that deck, under conditions, therefore, which are far more favorable than those which existed at that time, you are unable to distinguish between a life-size photograph of Mr. Scudder and a photograph of Mr. Moar?”

The witness said, “If you will kindly return my glasses, Mr. Mason.”

Mason said, “In other words, Miss Fell, without your glasses you can’t identify faces at this distance, can you?”

“I can identify figures.”

“Exactly,” Mason said, “by the way they are dressed. Is that it?”

“Well, that’s partially it.”

“In other words,” Mason went on, “while Mr. and Mrs. Moar passed closely enough to you when you were standing on the lower deck so you could recognize them, by the time you had gamed the boat deck, you were not close enough to them to recognize their faces. You could see figures. You only knew that there was the figure of a man in a tuxedo and a woman in a dark formal gown. Is that right?”

“That’s all I needed to know under the circumstances,” she said.

“But that’s right, isn’t it?”

“I could identify those figures, Mr. Mason. I know the woman was Mrs. Moar. It couldn’t have been anyone else.”

“She was wearing a dark formal gown?” Mason asked.

“Yes. I’ve told you that two or three times already.”

“And isn’t it true,” Mason asked, “that someone wearing a formal gown of any other dark color — for instance a dark blue — would have appeared to you under those circumstances to have been Mrs. Moar?”

“Those were the only ones who had gone up to that deck.”

“But there were other means of gaining that deck?”

“There were other stairs, yes.”

“And someone must have been in the hospital section, to have turned on that light.”

“I don’t know how it was turned on.”

Judge Romley said, “Just a minute, Mr. Mason.” He bent forward to regard the witness with frowning disapproval. “Miss Fell,” he said, “this is a murder trial. You’re in a court of justice. You are testifying under oath. This is not a game of wits which you are playing with opposing Counsel. This is a serious matter. Apparently your vision without your glasses is very much impaired. Now then, I want you to answer Mr. Mason’s question.”

“What question?” she asked.

“If the only thing you can absolutely swear to is that you saw two figures on the boat deck, but that you can’t positively identify either of those figures.”

“Well, I guess I saw them when they walked by me on the lower deck...”

“I’m not talking about the lower deck now,” Judge Romley said. “I’m talking about the boat deck.”

“No,” she admitted after a moment’s consideration, “I can’t identify the figures I saw on the upper deck.”

“That,” Mason said, surrendering her glasses with a bow, “is all. Thank you very much, Miss Fell.”

Scudder hesitated for a moment, then said, “That’s all.”

Aileen Fell adjusted her glasses, glowered at Perry Mason, and, chin in the air, marched across the railed enclosure to take her seat in the courtroom.

“Call your next witness, Mr. Scudder,” Judge Romley said.

“Captain Joe Hanson.”

Captain Hanson, big-bodied, heavily-muscled, clear-eyed, took the stand and regarded Perry Mason with steady gray eyes.

“We will stipulate, to save time,” Mason said, “that this is the captain of the ship on which Carl Newberry, or Carl Moar, as the case may be, sailed from Honolulu; that he was at all times the captain of the vessel; that he is acquainted with Carl Moar, and will identify the photograph identified as that of Carl Moar by the previous witnesses as being that of the passenger who had taken passage on his ship under the name of Carl Newberry, and who occupied cabin three twenty-one.”

“Very well,” Scudder said. “Now then, Captain, can you tell us the condition of the weather on the night of the sixth, at approximately the hour of nine o’clock P.M.?”

“It was blowing a gale from the so’west,” Captain Hanson said. “The rain was coming down in torrents. Visibility was very poor.”

“What was the position of the ship at nine o’clock on that night?” Scudder asked.

“We were just a-beam of the Farallon Islands.”

“And you were within three miles of those islands?”

“Yes, within a mile and a half.

“What about the sea?”

“A heavy sea was running, hitting us on the starboard quarter. The vessel was rolling rather heavily.”

“Had you taken any precautions to keep passengers from the decks?”

“On the windward side, yes. However, it wasn’t rolling heavily enough so passengers couldn’t go out in roped-off areas on the lee side. All doors on the weather side had been locked, and the exposed portions of the lee decks were roped off.”

“Shortly after nine o’clock, did you have occasion to go to the cabin of the defendant?”

“I did.”

“Who was present at the time?”

“The Purser, the defendant, Mrs. Moar, Mr. Perry Mason, Miss Della Street, Miss Belle Newberry, the daughter of Mrs. Moar.

“Now then, at that time and place,” Scudder said, “did the defendant make any statement as to when she had last seen her husband?”

“She did.”

“What did she say?”

“Just a moment, your Honor,” Mason said, getting to his feet, “the question is objected to as incompetent, irrelevant and immaterial, and no proper foundation laid.”

Judge Romley stared over his glasses at Perry Mason. “I’m not certain I understand the objection, particularly the part about no proper foundation having been laid.”

Mason said, “May it please the Court, it is necessary for the Prosecution to prove the corpus delicti, before there can be any testimony connecting the defendant with the commission of the crime. In other words, in this case, the Prosecution must prove, first, that Carl Newberry, or Carl Moar, as the case may be, is actually dead. Secondly, the Prosecution must prove that he met his death as the result of some criminal agency. When this is done, the Prosecution can then seek to connect the defendant with the crime. But until that has been done, there can be no testimony of confessions or admissions on the part of the defendant.”

“Now, in this case, the most that the Prosecution has been able to show is that a witness heard a shot and saw two figures standing some sixty feet away. She cannot identify those figures.”