Эрл Гарднер - The Case of the Careless Kitten

Burger asked, “Have you recently made a trip to the residence of the witness Lunk?”

“Yes, sir.”

“That was within the last thirty minutes?”

“Yes, sir.”

“What did you do?”

“I went into the pantry and took the lid off the tin of flour.”

“Then what did you do?”

“I reached down inside the flour.”

“What did you find?”

Tragg couldn’t keep his voice from being nervously rapid. “I found a .38 caliber, double-action Smith & Wesson revolver.”

“You may tell us what you did with reference to that revolver.”

“I rushed it to the criminal laboratory to see if fingerprints could be developed. I took the number and, while I have traced that number to my satisfaction, I haven’t as yet secured the necessary witnesses to appear and testify. I think I can have a witness here by tomorrow morning.”

“Cross-examine,” Burger said.

Mason said urbanely, “But you have satisfied yourself, Lieutenant, as to what the sales record will show?”

“I have. We have recently compiled statistics so that the sales of any guns within the county, over a period of fifteen years, can be instantly determined — that is, so far as the police are concerned. Of course, those records aren’t anything we can take to court as evidence. We will have to get the original record from the dealer who made the sale.”

Mason said, “I understand, Lieutenant. But those records do give you, for police use, the information which is contained on the dealers’ registers of firearm sales?”

“Yes, sir.”

Mason said, “I will waive all objections as to whether this is or is not the best evidence, and ask you if the police records don’t show this revolver was purchased by Franklin B. Shore sometime prior to January, 1932?”

Tragg’s eyes showed that Mason’s question caught him by surprise, but he answered after a moment, “Yes, sir. That gun, according to our records, was purchased by Franklin B. Shore in October of 1931.”

“And what do you deduce from all this, Lieutenant?” Mason asked.

Judge Lankershim frowned at Mason. “That question, counselor, calls for something which could hardly be binding upon the defendant, nor, of course, would it be permissible, if asked by the prosecution.”

“I understand,” Mason said, “but I take it there is no objection from the prosecution.”

“None whatever,” Burger said, with a triumphant leer at the jury. “I would like nothing better than to have Lieutenant Tragg answer that question.”

Judge Lankershim still hesitated, then said, “There is only one theory upon which this would be admissible as cross-examination, and that would be to show the bias of the witness. In view of the fact that the question may be permissible upon that ground, since there is no objection on the part of the prosecution, I will permit it to be answered. The Court cannot, of course, tell what counsel for the defense has in mind. But the Court does feel that, so far as the proceedings against this defendant are concerned, the constitutional guarantees must be observed. Therefore, the Court will limit the consideration which the jury may give to the answer, as relating to and showing a possible bias on the part of the witness. Under those circumstances, the witness may answer the question.”

Tragg said, “There is no question in my mind but what Franklin B. Shore got up after Thomas Lunk left the house, went to the pantry and concealed this gun in the can of flour; that this kitten followed him into the pantry, jumped in the flour, and that Mr. Shore pushed the kitten out, and the kitten thereupon ran into the bedroom and jumped in the bed which Mr. Shore had just vacated. I may state further that this simply goes to indicate how vitally important a witness Franklin Shore is and was, and emphasizes the gravity of any attempt which might have been made to spirit him away.”

Mason smiled. “It also indicates that Franklin Shore was, very shortly after the shooting of Jerry Templar, in possession of the revolver with which the shooting was perpetrated, and of the same revolver which, in all probability, fired the fatal bullet into the body of Henry Leech, does it not?”

Burger said, “I’m going to object to that question, Your Honor, upon the ground that it is argumentative, and not proper cross-examination.”

Judge Lankershim said, “It is highly irregular. It is far afield from the ordinary course of examination. It indicates what happens when a police witness is permitted to give his opinion and deductions under the guise of evidence. However, by failing to object to that other question, the prosecution has opened the door to this entire line of cross-examination. Only, however, for the purpose of showing the bias of the witness. If this witness is once permitted to give his deductions as to what the facts indicate, counsel for the defense should be permitted to point out to the witness a possible fallacy in his reasoning. I think I see the point counsel is driving at, and I think I appreciate what his next question will be — a question which might very seriously affect the case of the prosecution. By permitting the door to be opened at all, the district attorney has given counsel an opportunity to open it all the way. I am going to let the witness answer this question as well as the question which I feel certain will follow.”

Tragg said cautiously, “I don’t know that it’s the same gun with which the crimes were committed. It is a gun of the same caliber and the same description. There were three discharged shells in the cylinder of that gun, and the remaining three cylinders were loaded with shells and bullets of the same general character as those recovered from the body of Henry Leech, from the woodwork at the Shore house, and from Jerry Templar at the time he was operated on.”

Mason looked at Hamilton Burger and winked. He turned to the jury and smiled triumphantly. “And now, Lieutenant,” he said to the witness, “I will ask you if it isn’t equally fair to assume, if this weapon should prove to be the murder weapon, that Franklin Shore, having concealed that weapon in the residence of Thomas Lunk, would then have been most anxious to make his escape?”

“Objected to,” Hamilton Burger shouted, “upon the ground that this is taking the witness far afield into the realm of conjecture. That is a matter which counsel can argue to the jury. It is not a question to be asked of this witness.”

Judge Lankershim said, “It is precisely the question which I thought counsel would ask next. The objection is overruled. The witness will answer it — but remember, the answer is admissible only to show possible bias.”

Tragg said, “I don’t know. It is, of course, a possibility.”

Judge Lankershim turned to the jury. “The jurors will understand that these last few questions have been permitted only for the purpose of showing the attitude of the witness. In other words, the possible bias of the witness, meaning by that any prejudice which he might entertain against the defendant. The questions and answers can have no evidentiary value except for that single purpose. You will consider them only for that purpose.”

Mason settled back in his chair and said to Lieutenant Tragg, “Now when you found that gun in the flour, Lieutenant, you were somewhat excited, were you not?”

“Not exactly.”

“You were in a hurry to get back to court and hand that gun to the police laboratory?”

“Yes.”

“In so much of a hurry,” Mason said, “that I take it you didn’t search the can of flour to see what else it might have contained.”

The expression of sudden consternation upon Tragg’s face foreshadowed his answer. “I... I didn’t make any further search of the can. But I did bring that can along with me and give it to the police laboratory to search for fingerprints.”