Erle Gardner - The Case of the Half-Wakened Wife

Hamilton Burger said, “Your Honor, I would like to read to the Court an excerpt from Jones on Evidence, Second Edition, page one thousand and fifty, where the author says as follows: ‘It is always competent to show that a witness is hostile to the party against whom he is called, that he has threatened revenge, or that a quarrel exists between them. A jury would scrutinize more closely and doubtingly the evidence of the hostile than that of an indifferent or a friendly witness...’ ”

“Exactly,” Judge Maxwell said. “There can be no question of that. That is elemental law. The Court needs no authority on that point. This question is entirely different.”

“If the Court will permit me to go on reading, I think that the authority covers this very question,” Hamilton Burger said. “I read that portion of the law in order to make certain that there could be no confusion in the minds of my listeners as to that which was to follow, inasmuch as there is no confusion on the part of the author of the text. In other words, the author was careful to keep the two points segregated.”

“Go ahead,” Judge Maxwell said impatiently. “What follows?”

“There follows this statement,” Hamilton Burger said, pausing to read impressively, “ ‘hence it is always competent to show the relations which exist between the witness and the party against, as well as the one for whom he is called.’ ”

Hamilton Burger sat down.

“Let me see that book,” Judge Maxwell demanded.

Hamilton Burger took the law book forward to the bench. “An old edition, Your Honor, but one that is most suitable for carrying in court. I prefer it to the more voluminous...”

“No apology necessary,” Judge Maxwell said. “ Jones on Evidence is a standard authority. Let me read that. I... yes... there’s a citation... two citations... very well, in the absence of objection on the part of the defense I will permit the evidence to be introduced.”

Hamilton Burger smiled triumphantly. “Answer the question, Mrs. Lacey.”

“I am suing Mr. Perry Mason and Mr. Paul Drake for two hundred and fifty thousand dollars for defamation of character because they claimed to the officers that I had had a man in my bedroom, that I was shielding Scott Shelby after his murder and that the man was not actually dead, whereas in fact I hadn’t seen him for more than twelve hours prior to the time of his death.”

“You may cross-examine,” Burger said triumphantly.

“Ah, yes,” Mason said. “On that last question, Mrs. Lacey, the ‘accusation’ I believe was that because a wet blanket and a pair of men’s shoes that were soaking wet with water had been found in your garage the officers should investigate to see if perhaps some man who had been in the water had not been riding in your automobile.”

“Your Honor,” Hamilton Burger said, “I object to that as not being proper cross-examination. Counsel can show bias if he wants to but this case certainly is no place to try the merits of the suit for defamation of character.”

“I am not asking to try the case on the merits,” Mason said. “I am merely asking the witness as to the grounds of the communication made to the officers and the nature of that communication. Obviously there cannot be as much resentment for a communication that was founded upon fact as for one which was made up of whole cloth.”

“That is the danger of this thing,” Judge Maxwell said irritably. “The inquiry has the tendency to go far afield. I have permitted, over my better judgment, counsel for the prosecution to prove that a witness testifying for the prosecution is biased against the defense. Now then, under cross-examination, counsel for the defense certainly should be entitled to go farther into the question of bias than if counsel for the defense had been the one to bring it out. In that case, if the witness had made an answer which had shown bias, there would have been no necessity for further questions; but in view of the fact that this was brought out on direct examination counsel for the defense now has the right to a most searching inquiry.”

“Exactly, Your Honor,” Mason said. “Which was why I didn’t object to the question which the prosecution asked, although I thought that it was rather irrelevant.”

“I still think it was irrelevant,” the judge said. “But I have permitted it, and in view of the fact that it was permitted on direct examination I see no alternative but to give you every latitude on cross-examination. However, it is approaching the hour of the evening adjournment, gentlemen.”

“If the Court will bear with me just another five or ten minutes,” Mason said, “I think perhaps we can conclude this phase of the examination.”

“Very well.”

“Can you answer that question?” Mason asked.

She said, “I don’t know what you told the officers.”

“But you do allege in your complaint that you know.”

“That allegation is on information and belief,” Hamilton Burger said.

“But the witness does know that there actually was a wet blanket, a soaking wet blanket, found in the garage.”

“She’d used it to carry ice in,” Burger said irritably.

“Would you mind holding up your right hand?” Mason asked the district attorney.

“What do you mean?”

Mason smiled. “If you’re going to testify in place of this witness, I’d like to have you sworn.”

There was a titter in the courtroom. Hamilton Burger’s face turned red.

“Proceed, gentlemen,” the Court said. “Counsel will refrain from personalities but on the other hand the witness will be permitted to answer questions without interpolation by counsel.”

“There was such a wet blanket in your garage?” Mason asked.

“Yes. I used it to wrap ice in,” the witness said angrily.

“And a pair of men’s shoes that were also soaking wet?”

“My husband’s shoes,” she said. “I guess a woman has the right to have her husband’s shoes in her garage if she wants.”

“He was your husband at that time?”

“No. We were married four days later.”

“Exactly. But you do admit that a soaking wet blanket and a pair of men’s shoes that were also soaking wet were found concealed in a corner of your garage the morning after the murder?”

The jurors were leaning forward now, their eyes sharp with interest and perhaps a faint trace of suspicion. Hamilton Burger, distinctly uncomfortable, shifted his position and the swivel chair squeaked a protest. As the witness hesitated, the district attorney half arose as though preparing to make an objection, but then subsided and settled back in his chair as he could think of no appropriate manner of coping with the situation which had developed.

The witness said angrily, “If you want to know the facts instead of making a lot of nasty insinuations, Mr. Mason, I’ll tell you the facts.”

“Go right ahead,” Mason invited.

“Your Honor,” Burger protested, “I think this is most improper.”

“I don’t,” Judge Maxwell said. “The witness testifies to bias on direct examination. Counsel now on cross-examination is questioning a witness who is admittedly and concededly hostile, not only from an academic, technical standpoint, but from a most real one. Inasmuch as the cause of that hostility and bias was deliberately brought out by the prosecution on its direct examination, I see no reason for curtailing the defense in its cross-examination on that point.”

“Thank you, Your Honor,” Mason said. “I feel personally that I am entitled to have these facts brought out.”

“I’m the one who is entitled to have them brought out,” the witness said angrily. “I went on a picnic with the man I was going to marry. I went out shortly after noon of the day of that yacht trip and I stayed out until four or five o’clock that afternoon, and I have pictures here to prove it.”