Erle Gardner - The Case of the Borrowed Brunette

“In that particular place, yes.”

“Why didn’t you try to identify those other prints?”

“Because I wasn’t concerned with them. I was instructed only to find out whether the garbage can had been handled by the defendant Winters.”

“And when you said you assumed that the cover had been lifted several times during the afternoon — because further garbage had been deposited — you didn’t have any ground for that assumption, did you?”

“Well... yes, I did.”

“Such as what?”

“Well... of course, it’s obvious that it must have been done.”

“What is there in the evidence that makes you think so?”

“Well... nothing that I personally have seen. But it’s obvious from the evidence.”

“Just point out the part of the evidence that makes it obvious that additional garbage got put in subsequently.”

“Why,” Korbel said, “take Sam Dixon’s evidence. When he found the gun it was pretty well down inside the garbage — which shows that more garbage had been piled on top of the gun after it had been thrown in.”

“How does it show that?”

“Come, come!” Gulling interposed. “This is merely wrangling with a witness about an interpretation of evidence. It’s up to the Court to make that interpretation.”

“Quite right,” Mason said. “I am just trying to establish the bias of this witness, Your Honor. Here is a man who has admitted that he examined the evidence only for the purpose of building up a case against the defendant Winters — not for the purpose of trying to find out what had actually happened.”

“But isn’t it obvious that exactly that must have happened?” Judge Lindale asked, a little impatiently.

“It is not, Your Honor.”

Lindale’s face showed surprise. “I’d be glad to hear counsel on that,” he said skeptically.

“The assumption is,” said Mason, “that — because this gun was found, shall we say, buried in the garbage — from time to time during the afternoon additional garbage had been dumped in. Now, if the Court please, bear in mind the time element. Because of the shortage of help, the dining room at the Lorenzo Hotel closes at one-forty-five in the afternoon and does not open again until six-thirty. I believe that a check-up among the kitchen help will reveal that the last lot of garbage during daylight hours is deposited shortly before two in the afternoon, and that no further lots are put in till seven-fifty in the evening.

“Now, if the Court will bear with me for a moment and look at the evidence, the Court will notice rather a peculiar situation. If the defendant Winters tossed a gun into the garbage can at two-twenty in the afternoon, and if more garbage did get piled on top of that gun before the time when police turned out the contents on a canvas, then there would have been a good case of circumstantial evidence. But if no garbage was put in between the time the defendant was seen there and the time the police spilled out the contents, then it is obvious that — whatever the defendant Winters did — she certainly did not put the gun there. It must have been put there some minutes earlier, before she went out.”

“How’s that?” Judge Lindale asked in a puzzled tone.

“The testimony of the prosecution’s own witness, Thomas Folsom, indicates that the defendant Winters was more likely to have been merely looking into the garbage can than to have been putting something into it.”

“That’s merely the strained interpretation you put on his testimony,” Gulling snapped irritably.

“Obviously,” Mason said, “it may have been possible for the witness to drop a gun into the garbage can; but she certainly couldn’t have pushed it down deep into the garbage — for, if she had, her right hand would have got smeared with garbage and she would have had to go and wash it off. Indeed, in order to push the gun deep she would have had to roll up her right sleeve — and she certainly didn’t do that, or the witness Dixon would have seen the motions she made.”

“He couldn’t see her hands,” Gulling said.

“He couldn’t see her hands, but he could see her shoulder and her elbow. Had she pushed anything deep into the garbage, the witness Dixon certainly would have seen her do it.”

“Yes,” Judge Lindale said, “one would conclude as much, from the witness’s description of what he saw. Of course, Mr. Mason, you didn’t ask him specifically whether the motions he did see were consistent with a thrust deep into the garbage?”

“Certainly not,” Mason said. “He was the prosecution’s witness. Had I given him that idea, he would have changed his recollection again! The fact remains that his own statement made shortly after two-twenty on the third is far more eloquent than anything he’s said since then. At that time he thought the defendant had merely looked inside the garbage can. It has only been since that day that he has built up a purely synthetic recollection of seeing the defendant ‘toss’ something into the garbage can. If it were now suggested to him that she really must have been ‘thrusting’ something deep into the garbage, he would stretch his recollection accordingly, and would soon have convinced himself that he had seen her ‘thrust’ something deep into the garbage!”

“A most interesting point,” Judge Lindale said. “Has the prosecution any suggestion or explanation?”

“The prosecution has not,” Gulling said angrily. “The defendant Winters is plainly guilty of coldblooded, deliberate murder. Only a fraction of the evidence is in at the present time. Our next witness will show that the motive of the crime was robbery; that the defendant Winters had concealed on her person a wallet containing slightly more than three thousand dollars which had been taken from the body of Robert Hines.”

“Or picked up somewhere by the defendant,” Mason put in.

“That will be your contention, of course,” Gulling sneered. “You’ll claim that she was walking along the street and what should she happen on but a wallet? She picked it up and meant to look inside, but it was dark, and—”

“Come, come,” Judge Lindale said. “There’s no occasion for sarcasm, Counselor; the evidence in regard to the wallet will stand or fall by itself. But right now Mr. Mason has just made an interesting suggestion about the position of the weapon. Now, as I understand it, Counselor, you cannot prove that the weapon was on top of the garbage?”

“How should I know?” Gulling retorted sullenly. “When the police turned the garbage can over, they naturally mixed the contents all up.”

“But,” said Judge Lindale, “the witness Dixon lifted the lid off — must have, in order to take the gun out. If he had seen the gun there on top of the garbage he would have picked it up and not ordered the garbage all dumped out.”

“Exactly,” Mason resumed. “That, of course, is why I examined the witnesses in the way I did.”

“Have you,” the judge asked him, “checked on the matter of when further lots of garbage are deposited?”

“We have, Your Honor. Our information is that on that day no additional lots were deposited from two in the afternoon until seven-fifty at night.”

“Has the prosecution made any such check?” Judge Lindale asked.

“The prosecution has not,” Gulling said, with increasing irritation. “The prosecution has enough evidence right now to convict both of these defendants in front of a jury, let alone have them bound over.”

“I understand,” Judge Lindale said, “and the eventual disposition of the case may be quite another matter. But the Court calls to the attention of counsel that this is a case involving a charge of first-degree murder. If there is any legitimate conflict in the evidence, it would seem that the prosecution ought to be as anxious to investigate as the defense is. It appears to this Court obvious that, considering the evidence as it now stands, the defendant Winters could not have thrust the weapon down deep into that garbage can. I assume that it has been identified as the murder weapon?”