Newberry shook his head emphatically. “No questions,” he said. “I do move, however, to strike out all of the evidence of this witness on the ground that he is too young to understand the meaning of the oath.”
“Motion denied.”
“Upon the further ground that the testimony given by this witness is purely speculative, is not objective, and relates to conclusions formed by this witness.”
“The motion is denied,” Judge Polk said. “I will admit that some of the testimony given by this witness relates to conclusions which he formed in his own mind. But in each instance the basis of those conclusions is set forth objectively in the form of admissible evidence so that any interpolation of what the witness thought or conclusions he reached from what he had seen are immaterial. This is an interesting bit of evidence and I don’t mind stating that the Court is impressed by it, although, of course, at the present time I don’t understand just what it is leading up to.
“Is it your contention, Mr. Prosecutor, that this murder weapon was in the possession of Donald Lam, that it was taken out into the field by Donald Lam and surreptitiously dropped at the spot where it was found?”
“That is correct, Your Honor,” Roberts said.
“Very well, go ahead with the case,” Judge Polk observed, glancing thoughtfully at me.
Roberts called a man by the name of Smith who testified that he was a semi-pro ball player; that he played the position of pitcher; that he had been taken to the scene of the crime by Sergeant Sellers; that he had been given a revolver which was an exact duplicate of the gun introduced as People’s Exhibit B; that it was a Smith & Wesson chambered for five shells with a one-and-seven-eighths-inch barrel; that he had stood by the ditch at the scene of the crime and had thrown the gun as far as he could; that he had thrown it not once but several times, and that he had never been able to throw the gun as far as the spot in which the gun had been found when the police officers arrived.
“Any questions on cross-examination?” Roberts asked.
Newberry shook his head.
“Just a minute, Your Honor,” I said. “Since my integrity is being impugned here, I would like to ask question, whether or not the man tried throwing the from a point farther down the bank or whether he stood right at the scene of the crime, There is no evidence the person who threw the gun had to stand at the scene of the crime and—”
“Now, just a minute,” Judge Polk said. “You are of order, Mr. Lam, although I appreciate the point you are making. If counsel for the defense wishes to bring out the point, he certainly is entitled to do so. On other hand, as far as this Court is concerned, it is self-evident fact. The diagram now shows the alfalfa field and the spot where the gun was picked up. Quite apparently, by moving down the bank of the ditch, throwing the gun straight across, instead of at a diagonal, quite a few feet could have been saved. That is matter of simple mathematics.”
“Just a moment, Your Honor,” Roberts said. “It stands to reason that if the murderer threw that gun he want to get rid of it just as soon as possible. He would have left the trailer, run to the bank of the ditch, trying to dispose of the gun, seen the muddy bottom in the ditch, and decided to throw the gun as far as he could.”
“Are you,” Judge Polk asked, “trying to argue with the Court?”
Roberts thought for a moment, then said, “Well, yes Your Honor.”
“Don’t do it,” Judge Polk said. “There is no more reason for the murderer to have run directly from the scene of the crime at a right angle than there is for him to have angled down so that he came to the bank of the ditch at a point that was right opposite from the place where the gun was found.”
Roberts hesitated for a moment, then sat down.
“Call your next witness,” Judge Polk said.
Roberts said, “I call Maybelle Dillon to the stand.”
Maybelle Dillon was in her late forties, with a flat chest, sagging shoulders, and a general air of despondency, but her eyes were alert and she spoke with a rapid-fire delivery.
She gave her address as 895 Billinger Street, Los Angeles, and her occupation as a typist.
“For whom do you type?” Roberts asked.
“I am a free-lance typist. I type manuscripts and do minor editing. I advertise in the writer’s magazines and get quite a number of manuscripts in the mail. I give these minor editing, type them in acceptable form, and send them back, together with one copy at so much per page.”
“Are you acquainted with one Nanncie Beaver?”
“Oh, yes, yes indeed!”
“And where does Miss Beaver live?”
“At Eight-thirty Billinger Street, Apartment Sixty-two B.”
“Have you had occasion to see Miss Beaver in the last week?”
“Yes, sir.”
“When?”
“It was — now, let me see, it was the fifteenth of the month.”
“And where were you at that time?”
“I was in Nanncie’s apartment.”
“Do you do work for Nanncie?”
“No, sir, she does her own typing, but we’re very good friends, and Nanncie occasionally comes up with a client for me, some beginning author who either doesn’t have a typewriter or who can’t think on a typewriter or who doesn’t turn out good enough work for submission to the magazines... you see I work with amateurs.”
“Was anybody else present at that time when you saw Miss Beaver?”
“No, sir, there were just the two of us.”
“Now, at that time, did Nanncie show you a gun?”
“Yes, sir.”
“I show you a gun, People’s Exhibit B, and ask you if that looks like the gun that she showed you at that time.”
The witness handled the gun gingerly and said, “Yes, sir, it looks very much like the gun.”
“And what did Nanncie tell you?”
“She told me that she had tipped off one of her writer friends to a dope-smuggling racket and that he was about to write it up; that one of her friends, a Mr. Calhoun—”
“Just a minute, just a minute,” Newberry interrupted on his feet, his voice filling the courtroom. “This is improper and counsel knows it. This is irrelevant, immaterial, and is hearsay. It is completely outside of the issues. Unless it can be shown that the defendant was there or unless the witness heard the words of the defendant anything that this Nanncie Beaver told her about the source of the gun is completely irrelevant.”
“I think that’s right,” Judge Polk said.
“May I be heard?” Roberts asked.
“You may be heard, but this conversation seems to me to be hearsay.”
“Surely, Your Honor,” Roberts said, “we have here murder weapon. We have this weapon in the hands of the very close friend of that defendant. We have—”
“Object to that statement as prejudicial misconduct. I move it be stricken from the record,” Newberry shouted.
“It will go out,” Judge Polk ruled. “Now, try to confine yourself, Mr. Prosecutor, to the facts of this case as they are admissible in court.”
“We expect to prove a friendship, Your Honor. We expect to prove that statements as to this gun are really part of the res gestae.”
Judge Polk shook his head. “You can’t do it by hearsay.”
“Very well,” Roberts said, “we’ll go at it another way. I’ll excuse this witness from the stand and. I’ll call Mrs. George Honcutt to the stand, please.”
Mrs. Honcutt was a matronly woman with square shoulders, big hips and a bulldog jaw. She came swinging up to the witness stand like a full-rigged ship plowing into the harbor.
“What is your name, address and occupation?” the clerk asked.
“Mrs. George Honcutt. I manage the Maple Leaf Motel in Calexico.”
“I ask you if, on the early morning of the twentieth of this month, you had a tenant in your motel by the name of Nanncie Beaver?”