Эрл Гарднер - The Case of the Duplicate Daughter

“He can if he shows surprise at the answer of the witness,” Hamilton Burger said.

“Are you prepared to state that you were surprised?” Mason asked. “Hadn’t Hartley Elliott told you before you ever put him on the stand that he would refuse to answer any question as to what had happened on the morning of the thirteenth?”

Hamilton Burger’s countenance showed that the shot had told.

“I am waiting to see if you can assure the Court such is the fact,” Mason said.

“That is immaterial,” Hamilton Burger blurted.

“No, it isn’t immaterial,” Mason said. “You can’t impeach your own witness unless you can show surprise. You can’t impeach any witness except by showing that at some time he has made a statement contrary to the testimony he has given, and even then the testimony by way of impeachment cannot be considered as evidence of the facts stated but only as evidence that the witness has made a contradictory statement at some time and that his veracity is thereby brought into question.”

“I think that is the law,” Judge Alvord said.

Hamilton Burger’s face reddened. “Your Honor,” he said, “the prosecution doesn’t want to be boxed in by a lot of technicalities. The prosecution has reason to believe that Perry Mason and Paul Drake, his detective, had a conversation with Hartley Elliott on the fourteenth, that as a result of that conversation Hartley Elliott hurriedly left his apartment shortly before the police arrived, that he went to a motel where he registered under an assumed name and tried to keep out of circulation so that he could not be found and couldn’t be questioned by the police or subpoenaed as a witness in this case.

“Now then, if the Court please, we believe that Hartley Elliott actually saw Glamis Barlow run from the workshop and that he told Paul Drake and Perry Mason that, and I think it is a reasonable inference that his disappearance was connected with the conversation he had with those two gentlemen.”

Judge Alvord glanced at Perry Mason.

Perry Mason said, “That’s a theory the prosecutor has, Your Honor, but I still submit that he can’t prove any fact in this case against the defendant by hearsay testimony. He has to produce some direct testimony if he wants to show motivation for the murder of Vera Martel, which apparently he is trying to show. He has to show that by direct evidence, not by what some witness may have told someone. If he wants to impeach a witness he has to be governed by the rules of impeachment.”

“And you object to the question?” Judge Alvord asked.

“We object to it on the ground that it is incompetent, irrelevant and immaterial, that it calls for hearsay evidence, that it is an attempt by the prosecutor to impeach his own witness.”

“The objection is sustained,” Judge Alvord said.

Hamilton Burger, his face flushed, snapped, “That’s all, Mr. Drake. You may step down from the stand. You may also remember that you are licensed as a detective and that that license is coming up for renewal.”

“If the Court please,” Mason said, “we object to the prosecutor threatening the witness and we respectfully submit that it is no breach of ethics to fail to answer a question which the Court has ruled calls for inadmissible testimony. In fact, if the witness had volunteered to answer the question after the objection was sustained, he would have been in contempt of court.”

Judge Alvord suppressed a smile. “Very well,” he said. “The district attorney is admonished not to attempt to intimidate witnesses. The Court has ruled the question called for an answer which would have been inadmissible, the objection to the question was sustained. The witness would have been out of order if he had volunteered the information. The rebuke is uncalled for, Mr. District Attorney.

“Call your next witness.”

Hamilton Burger, his face flushed with anger, said, “If the Court please, I’m going to get at this another way. Call Glamis Barlow to the stand.”

Judge Alvord stroked his chin reflectively. “Miss Barlow is in court?” he asked.

“I have had her subpoenaed, and since she is a material witness and I am afraid she may leave the jurisdiction of the court I arranged to have her taken into custody a few hours ago.”

“I don’t know just what you are trying to accomplish, Mr. District Attorney,” Judge Alvord said. “This Court is conducting a preliminary hearing. The only purpose of a preliminary hearing is to show, first, that a crime has been committed; second, that there is probable cause to believe the defendant is connected with the perpetration of the crime. The function of this Court is not to act as a grand jury.”

“I understand that, Your Honor,” Hamilton Burger said coldly.

“Now, I also realize,” Judge Alvord went on, “that under the law of this state, where a person has been called as a witness at a preliminary hearing and has either been cross-examined by the defense, or counsel for the defense has had an opportunity to cross-examine that witness, if anything should happen that at the trial of the case the witness is unavailable, either party can read the testimony of that witness into evidence; that is, the testimony of the witness as given at the preliminary examination.”

“Yes, Your Honor.”

“Now, therefore,” Judge Alvord went on, “it sometimes happens that a district attorney who has a witness who can give important testimony in a case and who he fears may have either died or removed from the jurisdiction of the court by the time the case is called for trial in the Superior Court, can produce a witness at a preliminary hearing and thereby fore-stall difficulties which may arise if the witness is not available at the time of the trial.”

“Yes, Your Honor,” Hamilton Burger said coldly.

Judge Alvord showed his exasperation. “I do not wish to superimpose my judgment upon that of the prosecution in this case,” he said. “Nor, on the other hand, do I propose to have this Court used to usurp the functions of a grand jury. I simply tried to make my observations in a manner friendly to both counsel, yet bearing in mind that it is the object of this Court to see that justice is done.

“Now, Mr. Prosecutor, you have established a prima-facie case. It is a well-known fact that once that has happened Courts usually bind the defendant over for trial, that even if the defense is able to put on evidence which raises a question as to the accuracy of the evidence introduced by the prosecution, the Court in a preliminary hearing will not take the responsibility of weighing that evidence or resolving the conflict in that evidence but will bind the defendant over for trial.

“The Court feels that it is, therefore, entitled to ask the prosecutor why the prosecution is so anxious to continue with these witnesses and a line of testimony which apparently is merely cumulative.”

“The prosecution desires to do so because it feels it is good policy to do so,” Hamilton Burger said. “The prosecution is dealing with a resourceful, tricky trial attorney who is accustomed to capitalize upon the dramatic in order to upset the conventions of courtroom precedent. The prosecution, therefore, insists that it have the right to put on its case as it sees fit and that the Court does not restrain the prosecution from calling witnesses.”

“Very well,” Judge Alvord said, his manner indicating that he was becoming progressively more angry, “the Court is not going to restrain the rights of the prosecution to put on witnesses. On the other hand, this is a court of justice and the Court does not intend to be used as a grand jury, nor does it intend to see any defendant deprived of his or her rights.

“Now then, Mr. District Attorney, you want to call Glamis Barlow to the stand. It is quite apparent that before this case is finished there is every possibility Glamis Barlow will be joined as a codefendant in a trial in the Superior Court. The Court does not propose to have Miss Barlow called as a witness simply in order to entrap her into a situation where she may have forfeited any of her constitutional rights.