Outside the courtroom windows, the sun was sparkling San Francisco’s buildings into clean brilliance. Within the courtroom, daylight waged a losing fight against the gloomy dignity of somber walls of dark mahogany. Electric lights flooded the room with subdued illumination. Not all of the chairs were filled. The thrill-hungry spectators who haunt courtrooms with eager ears, listening for salacious details, could hardly be bothered with a commonplace husband murder.
Perry Mason, lines etched deeply into his countenance, his slightly reddened eyes showing the effects of a sleepless night, said to Judge Sturtevant Romley, “We are ready on behalf of the defendant.”
“Very well,” Judge Romley announced. “Testimony in the preliminary hearing of The People of the State of California versus Anna Moar, also known as Ann Newberry, will be taken at this time pursuant to stipulation of Counsel. Call your first witness, Mr. Prosecutor.”
Donaldson P. Scudder, a slender, anemic individual, with skin which seemed almost transparent, and the precise, academic manner of one who is completely removed from human emotions, said, “Our first witness, if the Court please, will be Frank Remington.”
Judge Romley, recognizing from the Prosecutor’s voice that there was to be nothing spectacular, a mere matter of assembling the legal red tape with which a murder case must be duly tied, sat back in his cushioned chair and glanced appraisingly at the defendant.
Anna Moar, seated behind Perry Mason, her chin held high, her eyes slightly defiant, as though daring the machinery of Justice to do its worst, sat virtually without emotion.
Remington testified that he was manager of the Products Refining Company of Los Angeles; that the corporation had employed a Carl Waker Moar; that Moar was no longer in their employ; that he had failed to report for duty two months ago and the witness had not seen him since.
Scudder, opening his briefcase, said, “I will show you a photograph, Mr. Remington, and ask you if you can identify it.”
“Yes,” the witness said, “this is a photograph of the party to whom I have referred in my testimony — Carl Waker Moar.”
“The person who was employed by the Products Refining Company?”
“Yes.”
“In what capacity?”
“As bookkeeper.”
“We will ask that the photograph be marked for identification,” Scudder said.
“No objection,” Mason said.
“Cross-examine the witness,” the Prosecutor invited.
Mason made a gesture of dismissal. “No questions.”
“The next witness will be Miss Aileen Fell,” the Prosecutor announced.
Aileen fell, in her early thirties, trying to conceal her nervousness beneath a cloak of calm dignity, was sworn and took the witness stand.
“Your name?” Scudder asked.
“Aileen Lenore Fell.”
“Occupation?”
“I’m a schoolteacher.”
“Where were you on Sunday night, the sixth of this month?”
“I was on a ship, traveling from Honolulu to San Francisco.”
“There were other passengers aboard that ship?”
“Oh, yes.”
“I call your attention to the defendant, Mrs. Anna Newberry Moar, and will ask you if she was aboard that ship as a passenger.”
“Yes, sir, she was, but not under the name of Moar — she was traveling under the name of Newberry.”
“And she was accompanied by whom?”
“By a Carl Newberry, her husband, and Belle Newberry, her daughter.”
“Belle Newberry is the young woman sitting on the aisle of the first row of spectators on the left?”
“Yes.”
“And would you know Carl Newberry if you should see him again?”
“Yes, of course.”
“Would you recognize his photograph?”
“I believe so, yes.”
“I hand you a photograph which has been marked for identification as People’s Exhibit A, and ask you if that photograph is of anyone you know.”
She studied the photograph and said with quiet dignity, “It is. That is a photograph of Carl Newberry, who shared the defendant’s stateroom as her husband.”
“Now, what was the state of the weather on the evening of the sixth on that portion of the ocean which was then being traversed by the ship on which you and the gentleman whose photograph you have identified were passengers?”
“The weather,” she said, “was very rough. It was stormy.”
“Can you describe the storm?”
“There was a wind which came, I think, from the southwest. It was blowing very, very hard. Rain was falling in torrents. It was absolutely impossible to stand on the right-hand side of the ship without being soaked by both rain and spray. On the left-hand side of the ship, it was possible to stand in the shelter of the decks, and away from the wind, without getting drenched, although water would run along the decks every time the ship rolled.”
“And the ship was rolling?”
“Yes, quite heavily.”
The deputy district attorney said to the Court, “We will go into greater detail about the weather with the captain of the ship.” Then, turning back to the witness, “Now, Miss Fell, when did you last see the gentleman, Carl Moar, or Carl Newberry, as you knew him?”
“On the evening of the sixth.”
“Can you tell us about what time it was?”
“It was shortly before nine o’clock.”
“Where were you standing?”
“I was standing on the deck below the boat deck, near the stairs.”
“And where did you see Mr. Newberry?”
“Mr. Newberry and his wife...”
“Now, you are referring to the defendant here, when you say ‘his wife’?”
“Yes.”
“Go on.”
“Mr. Newberry, or Mr. Moar, to use his right name, and Mrs. Newberry stepped out on the deck. They stood there for a moment, looking around them. Then they started toward the stairway which led to the boat deck.”
“That was the deck immediately above the one on which you were standing?”
“Yes.”
“Did Mr. and Mrs. Newberry walk past you?”
“Yes.”
“How close were they to you?”
“Not more than a few feet.”
“How were you dressed?”
“I had on a dark beret and a dark raincoat. I was in a sheltered part of the deck directly under the stairs. I was standing in the shadow where they couldn’t see me.”
“Did you hear them say anything?”
“Yes, I heard Mrs. Newberry — that is, the defendant — say something and I heard Mr. Newberry reply in an angry voice. I gathered that Mrs. Newberry wanted him...”
“Never mind what you gathered,” Judge Romley said. “Just give us your best recollection of what was said and who said it.”
“Well, Mr. Newberry, or Mr. Moar, said, ‘I tell you, it has to be handled my way. I’ve already discounted that. You keep your fingers out of it.’”
“And then what happened?” Scudder asked.
“Mr. Newberry walked rapidly toward the open stairway which led to the boat deck and started up.”
“How was he dressed?”
“He was wearing a tuxedo.”
“Was he wearing any overcoat or raincoat?”
“No.”
“And was this staircase exposed to the rain?”
Mason said, casually, “If Counsel is going to lead the witness throughout her entire testimony, I suggest Counsel should be sworn.”
The judge said, “You will avoid leading questions as much as possible, Counselor.”
“All this is merely preliminary,” Scudder retorted. “There can be no question about it.”
“We’re coming to the point in this young woman’s testimony where’ there’s going to be lots of question about it,” Mason said. “I don’t want Counsel to elicit that testimony by leading questions.”
“Counsel won’t,” Scudder snapped.
“Proceed,” Judge Romley ordered.
Aileen Fell said, “Rain was falling in torrents. That staircase was entirely open and unprotected. I could see rain beating down on the shoulders of Mr. Moar’s coat as he started up the stairs.”
“And what did the defendant do?”
“She ran after him and started up the stairs. Mr. Moar turned and protested. He told Mrs. Moar to go back to her cabin.”
“And what did Mrs. Moar do?”
“Waited until he had ascended the stairs, and then she ran up the stairs.”
“And how was she dressed?”
“She had on a dark dinner dress.”
“Any wrap of any sort?”
“No, it was a backless gown. The rain was simply pouring down on her bare skin.”
“Then what happened?”
“They went up on the boat deck. I heard the sound of their feet on the deck above me. Then, after a while, I heard a scuffle, the sounds of a struggle...”
“I move to strike the words ‘scuffle’ and ‘struggle’ as conclusions of the witness, ” Mason said.
“Motion’s granted.”
“Just what did you hear?” Scudder asked.
“Well, I heard just what I told you. I don’t know how to express it otherwise.”
“You heard the sound of feet on the deck above you?”
“Yes.”
“And what was the nature of that sound?”
“It was a series of rapid scuffs, with dragging sounds in between, just the sort of noises which would be made by two people...”
“Never mind that,” Scudder said. “I think the Court understands what you heard. Now tell what you did.”
“Well,” she said, “after a few minutes of that, I started to go up the stairs to the boat deck to see what was happening. I was half way up the stairs when I heard the sound of a shot. When I got to the top of the stairs I...”
“Now, just a minute,” Scudder said. “Let’s get this all in order. You went up the stairs to the boat deck. Now, by those stairs, are you referring to the same stairs up which Mr. Moar and Mrs. Moar, the defendant in this action, gained the deck?”
“Yes, sir.”
“And were there lights on the boat deck?”
“No, sir. The boat deck wasn’t illuminated, but there were lights in the hospital section.”
“Where is that?”
“It’s just forward of the gymnasium. The stairs are at the after part of the ship. There are two stairways, one on the left side and one on the right side. I went up the stairs on the left side. The gymnasium is right at the head of those stairs. Then there is a court for playing deck tennis, and beyond that is a section of the ship set aside for hospital rooms.”
“There was a light in this hospital section?”
“Yes.”
“Could you see that light through a door or through a window?”
“Through both. A window was open — that is, I mean there was no shade across it — and the door was standing open.”
“How far were you from that open door?”
“Oh, perhaps fifty feet.”
“Very well. Now tell the Court what you saw.”
“I saw Mrs. Newberry — that is, Mrs. Moar, the defendant in this action, the woman sitting over there — standing over her husband’s body. Her husband was stretched out on the deck, motionless.”
“And what did the defendant do?”
“She reached down and picked the body...”
“Now, when you say ‘body,’” Scudder interrupted, “you mean the same thing which you have previously referred to in your testimony as the motionless form of Mr. Moar lying there on the deck?”
“Yes, sir.”
“What did she do?”
“She put her hands under his armpits, half lifted him, and started to drag him toward the rail.”
“Then what happened?”
“When the boat rolled over to the right, she couldn’t make any headway. But when the boat rolled to the left, she moved very rapidly. Just then the boat gave a sudden lurch. The defendant ran the body down to the rail, then lifted it, raised the revolver and shot him again. Then she pushed him into the ocean.”
“ Then what did she do?”
“She ran forward along the boat deck, and I lost sight of her when she ran around behind the hospital.”
“What did you do?”
“I screamed.”
“Now, do you know what time this was?” Scudder asked.
“I do. I know exactly what time it was.”
“What time was it?”
“It was a few moments after nine. Just before I heard the first shot, I had heard the ship’s bell ring twice. That’s nine o’clock, according to ship time — two bells in the evening.”
“You may cross-examine,” Scudder said.
Mason got slowly to his feet. “How was Mrs. Moar, the defendant in this case, dressed?” he asked.
“Just as I told you,” Aileen Fell snapped back at him, with the quick enunciation of one who fancies herself rather good at repartee and is determined not to be worsted in a verbal exchange. “In a dark, backless formal gown.”
“It was the night of the captain’s dinner on shipboard?” Mason asked.
“Yes.”
“And how were you dressed?”
“In my raincoat, just as I’ve told you. Standing in the shadow, as I was, it was virtually impossible to see me...”
“I’m not asking you now about your raincoat,” Mason said. “I want to know what you had on underneath your raincoat.”
“What I... What I had on underneath my raincoat?”
“Exactly,” Mason said.
“Why... I don’t see what different that makes.”
“What I’m getting at,” Mason said, “is that you also were wearing an evening gown on that occasion, were you not?”
“Yes.”
“A light blue silk print?”
“Yes. That’s right.”
“You were dressed for the captain’s dinner?”
“Yes.”
“And after the captain’s dinner, you decided to go on deck?”
“Yes.”
“You went to your stateroom and put on your raincoat and beret? Did you put on anything else?”
“No.”
“You’re absolutely certain?”
“Yes.”
“You didn’t pick up anything in your stateroom, other than the raincoat and the beret?”
“Mr. Mason, I fail to see what that has to do...”
“Did you pick up anything else in your stateroom?”
“That’s none of your business.”
Judge Romley swung around in his chair to frown down at the witness and said austerely, “The witness will confine herself to respectful answers to Counsel’s questions. The question was whether you picked up anything else in your stateroom. Did you or didn’t you?”
“No,” Aileen Fell snapped.
“Now,” Mason said, “going back to what you saw when you were on deck You have stated, I believe, that Mr. Moar climbed up the open stairway to the boat deck.”
“Yes.”
“And you say he protested when Mrs. Moar started to follow him?”
“He did.”
Mason said drily, “His protest was a gesture made with his right foot, wasn’t it?”
“Well... yes”
Someone in the courtroom tittered. The bailiff pounded for order.
“In other words,” Mason said, “he kicked at her, didn’t he?”
“Yes, I suppose so.”
“Why didn’t you say so in your direct examination?” Mason asked. “Is it because you are biased in favor of the Prosecution and didn’t want this Court to feel Mrs. Moar might have been acting in self-defense?”
“I have no prejudice whatever against Mrs. Moar, other than the normal prejudice a woman has for a wife who will deliberately murder her husband,” Aileen snapped, and then settled back in her chair with the triumphant expression of one who has bested a cross-examiner.
Mason was completely unruffled. “Now, Mrs. Moar, ” he said, “had on a backless evening gown. This gown was rather tight fitting, was it not?”
“Yes.”
“And there was no back?”
“No.”
“It was rather skimpy in front?”
“Too skimpy, if you ask me, ” the witness said.
“Well,” Mason observed, “I am asking you.”
“Yes, it was very skimpy.”
“And fitted her tightly across the hips?”
“Molded to her hips would be more like it,” the witness said. “It was what I would call daring-to the Point of bad taste.”
“Many formal gowns are like that, are they not?” Mason asked.
“It depends on the taste,” the witness countered, “and the manner in which they’re worn.”
“Now, Mrs. Moar followed her husband up the stairs to the boat deck?”
“Yes.”
“There’s an iron rail running along both sides of those stairs?”
“That’s right.”
“And as Mrs. Moar went up the stairs, she held to the rail with both hands,” Mason asked, “that is, she placed each of her hands on one of the rails?”
“Yes, she... no, she did not!” the witness said emphatically, in the manner of one who refuses to be trapped. “Her right hand held to the iron rail. Her left hand had gathered up the skirts of her dark gown.”
“Now,” Mason inquired blandly, “will you kindly tell us just where a woman clad in a backless evening gown, with a front which was altogether too skimpy, a gown which fit so tightly over the hips that you considered it indecent, with her right hand holding to the iron rail of a flight of steps, her left hand holding up the skirt of her evening gown, could have carried a thirty-eight revolver?”
For a startled moment, Aileen Fell was silent. The tense courtroom was filled with the sound of rustlings as spectators leaned forward, anxious to miss no word. After a moment, Aileen Fell said, “She had it in her left hand.”
“You mean she was holding the revolver in her left hand and also holding her skirt?”
“Yes. The gun was beneath the folds of the dress.”
“Now, was this dress transparent?” Mason asked.
“It might as well have been.”
“But could you see the gun through it?”
“Well... well, I don’t suppose I could, no.”
“In other words,” Mason said, “you didn’t actually see Mrs. Moar take any gun up to the boat deck, and, when she walked past within a very few feet of you, you didn’t see any weapon in her possession, did you?”
“Well,” the witness said, “I know she had the gun. She must have had it.”
“And that’s the only way you know she had it — because you think she must have had it.”
“Well, yes, if you want to put it that way.”
Mason smiled. “I want to put it that way, Miss Fell.”
Her mouth was a thin, straight line. Her eyes blazed indignantly.
“Now, when you were half way up the stairs, you heard a shot?”
“Yes.”
“And when you arrived on deck, you saw Mrs. Moar standing over the unconscious form of her husband?”
“Lifeless form,” the witness said.
“Ah,” Mason observed blandly, “then it was a lifeless figure?”
“Yes.”
“You’re certain of that?”
“Yes.”
“In other words, you’re positive that Mr. Moar was dead at that time.”
“I think he was, yes.”
“Well now, are you guessing, or do you know?”
The deputy district attorney jumped to his feet, said, “Your Honor, I object. This is not proper cross-examination. This witness couldn’t possibly tell...”
“I object to the Prosecutor coaching this witness,” Mason interrupted. “She’s an educated woman and is thoroughly competent to take care of herself under cross-examination. She has said Mrs. Moar was standing over the lifeless form of her husband. She used that word ‘lifeless’ to prejudice Your Honor against Mrs. Moar, and I’m going to make this witness take back that statement. I am going to make her admit that she doesn’t know whether the form was lifeless or not.”
“You’re not going to do any such thing,” Aileen Fell snapped. “I said the body was lifeless, and it was lifeless.”
Scudder slowly sat down.
“You mean that Mr. Moar was dead, then, when you came up the stairs to the boat deck?”
“Yes.”
“Then, when you state that the defendant hoisted him to the rail and fired another shot into his body, you want the Court to understand that she was firing that shot into a dead man, and that shot had nothing to do with the murder of Mr. Moar, because Mr. Moar was already dead. Is that right?”
The witness started to say something, checked herself, stopped, then said savagely, “I guess Mrs. Moar wanted to make sure he was dead. That’s her type!”
“In other words,” Mason went on, smiling, “your idea is that Mrs. Moar, standing within three feet of her husband, wasn’t certain he was dead when she dragged him to the rail, whereas you, standing some fifty or sixty feet away, took one look at him and are willing to swear that he was dead. Is that right?”
“He was dead,” she said.
Mason continued to smile. “Now then, just before Mrs. Moar lifted her husband to the rail, the ship had rolled far to the left, hadn’t it?”
“Yes.”
“By the way,” Mason said, “weren’t your stockings torn when you came down off the boat deck?”
“One of them was, yes.”
“What caused it to tear?”
“I skinned my knee and tore my stocking when I fell down.”
“Oh,” Mason said solicitously, “you fell down, did you?”
“Yes.”
“That was when the ship took that heavy roll to port, was it?”
“Yes.”
“You lost your footing, fell to the deck, and started to slide?”
“I nearly went overboard.”
“How did you check yourself, Miss Fell?”
“I clung to the deck as much as I could and finally came to a stop against the rail.”
“You must have been a pretty busy young woman for a few minutes,” Mason suggested.
“I was,” she assured him.
“And it was when the ship took this roll to port that Mrs. Moar lifted her husband to the rail, shot him and dropped him overboard. Is that right?”
“Yes.”
“Did you roll over and over as you slid down to the rail on the port side?”
“I rolled over a couple of times, then I slid the rest of the way.”
“On your face?”
“On my hands and knees.”
“Yet, not withstanding all of this, you didn’t take your eyes from Mrs. Moar, but actually saw her lift her husband to the rail, shoot him and drop him overboard?”
“Well,” she said, and hesitated.
“Isn’t it a fact,” Mason asked, “that immediately after this occurrence, you talked with the young woman who shared your cabin and then and there told her that when Mrs. Moar started to drag her husband to the rail you had lost your footing and hadn’t seen what happened, but had heard the second shot and then saw Mrs. Moar running down the deck alone?”
“Well, if she didn’t shoot him and pitch him overboard, who did?” she asked.
“That,” Mason said, “is the point the Court will be called upon to determine. Now, isn’t it a fact that you didn’t see what happened there at the rail?”
“Well... no, I saw it.”
“But didn’t you state at a time when the occurrence was more fresh in your memory that you hadn’t seen it?”
“Well, perhaps I did.”
“Which is right?” Mason inquired. “What you said then or what you say now?”
“Well...”
“Answer the question,” Mason insisted as she hesitated.
“Well,” she said, “I didn’t see... that is, I didn’t actually see with my own eyes Mrs. Moar lift her husband to the rail and drop him overboard. But I did hear the shot.”
“And you didn’t see Mrs. Moar shoot her husband the first time, did you?”
“Well...”
“That shot,” Mason reminded her, “was fired when you were, half way up the stairs.”
“Well, no. I didn’t see her shoot him.”
“Then you don’t know of your own knowledge that she fired either one of the shots, do you?”
“Well, I guess that when a woman...?”
“Of your own knowledge,” Mason interrupted. “You don’t know, do you?”
“I don’t know absolutely, no.”
“Now then,” Mason said, “let’s check up for a moment on the manner in which you were dressed at the time.” He walked over to the table where his briefcase was reposing, took from it a photograph, offered it to Scudder for inspection and then passed it to the witness. “I show you what purports to be a flashlight photograph of a group in evening clothes, and in which you are standing the second from the left. Is that the dress you wore on the night in question?”
“Why... yes,” she said, staring at the picture. “I remember when that picture was taken, but I didn’t have any idea...”
“Save only and solely for a beret and a raincoat, that’s exactly the way you appeared when you were on the deck at the time Mr. and Mrs. Newberry walked past you?”
“Why... yes, I guess so.”
“And that photograph shows you exactly as you were at the time of the captain’s dinner?”
“Yes.”
“To all practical intents and purposes, that photograph of you might have been taken at the time of the captain’s dinner?”
“Yes.”
Mason said, “By the way, Miss Fell, may I see your glasses?”
“You may not,” she snapped.
Judge Romley said, “What is the purpose of this, Mr. Mason?”
Mason said, “Your Honor, this witness has testified that this photograph shows her exactly as she was at the time of the captain’s dinner. She has also testified that she went to her stateroom and there picked up a beret and raincoat, but did not pick up anything else. She swears that this photograph also shows exactly the manner in which she appeared, save for a cap and raincoat, when Mr. and Mrs. Moar walked past her on deck. Now then, if the Court will notice this photograph...”
Mason passed the photograph up to Judge Romley, who studied it for a moment, nodded, and said, “Very well. Miss Fell, you will please let Mr. Mason inspect your spectacles.”
With an air of outraged dignity, the witness removed the glasses and handed them to Mason.
“Ah, yes,” Mason said, “I see the resemblance now. The reason I hadn’t thought it was such a good photograph before, was that you weren’t wearing spectacles in the photograph. I believe it’s your invariable custom to leave off your spectacles when you dress formally, isn’t it, Miss Fell?”
“Well,” she admitted, “I don’t think a woman looks as attractive in spectacles when she’s attending a formal function. In my own case, I think my appearance is...”
“Exactly,” Mason said. “And, of course, you weren’t wearing your glasses when you went on deck after the captain’s dinner?”
“Well, I...”
“Because, if you had been,” Mason went on to point out, “with the rain beating down in torrents, the lenses would have been covered with moisture and you couldn’t have seen things clearly.”
“No,” she said emphatically, “I was not wearing my glasses.”
“I thought not,” Mason said, still holding her glasses in his hand. “Now then. Miss Fell, about how far were you from Mrs. Moar when you climbed the stairs to the boat deck?”
“You mean when she was standing over the body of her husband?”
“Yes.”
“I said fifty or sixty feet.”
Mason backed away from the witness, to stand just in front of the deputy district attorney. “This far?” he asked.
“Certainly not,” she said. “I said fifty or sixty feet. You’re not over twenty feet away from me. You can’t trap me that way, Mr. Mason.”
“Then I am standing at only about a third of the distance at which you saw Mrs. Moar, is that right?”
“Yes.”
“Now, was there as much light on the deck as there is in this courtroom?” Mason asked.
“Of course not.”
“Well, how much was there?”
“Not very much,” she said, “but enough came through the hospital door so you could see objects.”
“Would you say a third as much light as there is here in the courtroom?”
“Probably not that much.”
Mason nodded. “Now you’ve identified a photograph which has been introduced in evidence as being that of the gentleman who was traveling on this ship under the name of Newberry, the man who was the husband of this defendant.”
“Yes.”
“I’ll show you another photograph,” Mason said, “of Mr... er... I never can get that name straight.... Paul, where’s that photograph?”
Drake handed Mason a rolled photograph.
Mason, still standing in front of Scudder, said, “This is a life-size photograph, Miss Fell. I’ll ask you if you can identify it.”
He unrolled the photograph she glanced at it and nodded her head.
“And this is the man whom you saw pushed overboard?” Mason asked.
“Yes.”
“And it was this man’s lifeless figure which you saw lying on the boat deck, with Mrs. Moar, the defendant in this action, standing over it?”
“Yes.”
Judge Romley suddenly frowned and leaned forward to stare at the photograph, glanced from Mason to Scudder. A smile twitched at the comers of his lips.
Scudder, noticing the expression on the judge’s face, became instantly suspicious. He said, “It is customary, if the Court please, that the opposing Counsel inspect a photograph before a witness is examined on it.”
“I beg your pardon,” Mason said urbanely, “I did overlook that, didn’t I? It happens, Mr. Scudder, that the photograph I hold in my hand is a life-size photograph of Mr. Donaldson P. Scudder,” and Mason turned so that the photograph was visible to Scudder and to the courtroom.
The bailiff vainly pounded with his gavel, seeking to restore order. Judge Romley fought to keep a smile from his lips, while Scudder, his face red, shouted indignant protests which went unheeded.
When order had been resumed, Scudder shouted. “Your Honor, I object. This is not proper cross-examination. It’s unethical. It takes an unfair advantage of the witness. Counsel distinctly told her that he was showing a life-size photograph of the decedent, Mr. Carl Waker Moar.”
“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.”
Scudder said, “Your Honor, if I may say just one word.”
Judge Romley nodded permission.
“This is merely a flimsy technicality,” Scudder said. “But I will meet Counsel on his own ground. Let us suppose that no one can testify that Mrs. Moar shot and killed Carl Moar, but someone did drag a man to the rail and throw him overboard. Now, I will show by Captain Hanson that the condition of the sea was such at that time that a man couldn’t live for ten minutes, even if he were a most expert swimmer in...”
“But no one has testified that any man was thrown overboard,” Mason said.
“Miss Fell saw...”
Mason smiled as the trial deputy suddenly lapsed into silence.
Judge Romley said, “This is a most peculiar situation, Counselor.”
Mason said affably, “Isn’t it, your Honor?” and sat down.
“I can reach it in another way,” Scudder said desperately. “Let me ask Captain Hanson a few more questions.”
“Very well,” Judge Romley said. “Go ahead.”
“What happened on that ship, so far as you know, of your own knowledge, shortly after nine o’clock in the evening of the sixth?” Scudder asked.
“The operator telephoned the bridge that a man was overboard. I immediately took necessary steps to do everything in my power to find this man, and, if possible, rescue him. I swung the ship in a sharp turn back onto the course which we had been following. I threw over light flares and life buoys with light flares attached. I continued to search the water for more than an hour and a half, and then proceeded into San Francisco.”
“Did you take steps to ascertain the identity of any person who might have been missing from the ship?”
Captain Hanson scratched his head and said, “Well, we did and we didn’t.”
“What do you mean by that?”
“Well, we started to call the roll,” Captain Hanson said. “We ordered all the passengers to their staterooms. Then this Miss Fell came to me and told me that it was...”
“Never mind what someone told you, Captain,” Judge Romley interrupted, “just state what you did.”
“Well,” Captain Hanson said, “before we’d checked all of the staterooms, we started checking on Mr. Newberry, or Moar, I suppose his real name is. We couldn’t find him, and we did find evidence that his wife...”
“Never mind any of that evidence now,” Judge Romley interrupted. “What we are trying to do now is to prove the corpus delicti.”
“Well,” the captain remarked patiently, “I don’t know what that is all, I know is what I did.”
“Then you never did check all of the staterooms and all of the passengers against the passenger list?”
“Not then,” Captain Hanson admitted.
Scudder, desperately worried, said, “Your Honor, I have not concluded. I appreciate the position in which the Prosecution finds itself. It’s rather a unique position. I may say, of course, that as a Prosecutor, I have no sympathy with a criminal who seeks to hide behind a technicality...”
“That will do,” Judge Romley interrupted. “You will confine your remarks to the proper subjects, Counselor. You know such remarks are improper.”
“I beg the Court’s pardon,” Scudder said. “My feelings got the better of me. May I ask, if the Court please, that we have an adjournment until three o’clock this afternoon? There’s one more witness I hope to be able to produce at that time.”
Judge Romley nodded. “The request is rather unusual, but the circumstances are equally unusual. The Court will take a recess until three o’clock this afternoon,” he said.