“Early in the morning of September twenty-second of this year, did you have occasion to travel along the road between La Jolla and Oceanside, and at a point some two miles south of Oceanside?”
“Yes, sir.”
“What time?”
“At about twelve-fifty a.m.”
“I will call your attention to the map which has been introduced as People’s Exhibit A,” Covington said. “Can you orient yourself on that map, that is, can you look at it and understand what it is, what it shows?”
“Yes, sir.”
“Are you familiar with the territory of which that map is a scaled reproduction?”
“I am. Yes, sir.”
“On that map can you point to anything unusual which you saw at the time you were so traveling along the highway between La Jolla and Oceanside?”
“Yes, sir.”
“Please do so.”
Irving walked over to the map, placed a finger on it, and said, “I saw an automobile parked at just about this spot.”
“Anything unusual about that automobile?” Covington asked.
“Yes, sir. It was parked there with the lights on and as nearly as I could see no one was in the car.”
“Now, what time was this, as nearly as you can recall?”
“About twelve-fifty.”
“Did you do anything with reference to making an examination of that car?”
“Yes, sir.”
“What?”
“I stopped my car. I turned my car’s spotlight on that automobile and looked it over rather carefully. I thought that perhaps...”
“Never mind what you thought. Just tell us what you did.”
“Yes, sir. I turned the spotlight on the car and looked it over rather carefully to see whether there was anyone in the car.”
“Did you notice the license number of the automobile?”
“I didn’t at that time. No, sir.”
“Now can you describe that car to us?”
“Yes, sir. It was a convertible automobile of a light color. It was a large automobile. The top was up and the headlights were on. It had, as I remember it, white-walled tires.”
“Were any of the doors open?”
“No, sir, the doors were all closed.”
“Mr. Irving, I am going to ask you if since that time you have had occasion to see the automobile of Edward Charles Garvin, the defendant in this case?”
“Yes, sir, I have.”
“Can you tell us whether or not that was the automobile you saw parked there at that time?”
“It was an automobile very similar to that.”
“Thank you. That’s all. You may cross-examine, Mr. Mason.”
Covington strode back to his chair and sat down.
Mason said, “Two days later, and while this matter was fresh in your mind, Mr. Irving, you talked with me about what you had seen, did you not?”
“If that’s an impeaching question,” Covington said, “I object on the ground that...”
“It’s not an impeaching question. I’m simply asking him whether he had such a conversation. The question can be answered yes or no.”
“Did you have a conversation with Mr. Mason?” Judge Minden asked. “Just answer yes or no.”
“Yes.”
“And, following that conversation, did you ride with me down the road shown in this map?”
“Yes, sir.”
“And at that time there was an automobile with License Number 45S530 parked at about this position, wasn’t there?”
“Yes, sir.”
“And did you at that time identify that automobile with the California State License Number 45S530 as the automobile which you had seen at twelve-fifty in the morning of September twenty-second of this year?”
“Well, I didn’t identify it. I said that it looked something like the automobile I’d seen.”
“This automobile that I am referring to now is a light-colored convertible?”
“Yes, sir.”
“And you looked it over rather carefully?”
“Yes, sir.”
“And didn’t you at that time and place identify that automobile as being the one you had seen?”
“Well, I said I thought it was the one I had seen.”
“You thought so then?”
“Yes, sir.”
“But you don’t think so now?”
The witness ran his fingers through his hair. “Well, to tell you the truth,” he said, “I...”
“That’s what you’re here for,” Mason said as the witness stopped, “to tell the truth.”
“Well, of course I couldn’t make a positive identification of the car I saw there that night. I can only tell what it looked like and the general kind of a car that it was. I...”
“You’re not answering my question,” Mason said. “You thought at the time you were with me that this car I have referred to was the same car you had seen there, didn’t you?”
“Well, of course, I can’t identify an automobile absolutely when I just see it at night on...”
“Just answer the question,” Mason said. “Did you or did you not at the time you were with me think that was the car you had seen?”
“Yes, sir, I did,” the witness blurted.
“And now,” Mason said, “at this time, when the occasion is not as fresh in your mind as it was then, do you want this jury to feel that you have changed your mind?”
“Well, I realize now that I couldn’t identify any car positively and absolutely.”
“Specifically,” Mason said, “what has occurred between the occasion when you identified that car with me, two days after the time you had seen it, and the present time to make you change your mind?”
“I didn’t say I’d changed my mind.”
“You have changed it, haven’t you?” Mason snapped.
“Well, I don’t know that I have.”
“In other words,” Mason said, “you still think that the car you saw two days later with License Number 45S530 was the car you saw there at twelve-fifty in the morning of September twenty-second, don’t you, Mr. Irving?”
“Well,” Irving admitted, “I’ve been led to realize how impossible it would have been to have made an identification at the time I first saw the car parked there.”
“Who led you to realize the impossibility of making such an identification?”
“I just kept thinking the matter over and...”
Mason said, “You specifically stated, Mr. Irving, that you had been led to appreciate the impossibility of making such an identification. Now who led you?”
“Well, I don’t know. It could have been just the way I thought things over.”
“Someone led you,” Mason said. “Who was it?”
“I didn’t say that anyone led me.”
“You said you had been led. Who led you?”
“I... well, I had several talks with Mr. Covington, the district attorney.”
“In other words, Mr. Covington led you to believe that you couldn’t make a positive identification of the car you saw there that night. Is that right?”
“Well, I don’t know that I’d express it that way.”
“I’m expressing it that way,” Mason said. “Answer the question. Did or did not Mr. Covington lead you to the belief that you couldn’t identify that car under those circumstances?”
“Oh, Your Honor, I object. After all, this cross-examination is...”
“Overruled!” Judge Minden snapped.
Irving hesitated.
“Answer the question,” Mason said.
“Well, I guess he did.”
“That’s all,” Mason said smiling.
“Call Harold Otis,” Covington said.
Otis, a young, well-knit individual, took the witness stand, gave his name and address to the court reporter, and in response to questions by Covington, testified that he was employed in a service station in Oceanside, that he had worked on the twenty-first of September from the hour of four o’clock in the afternoon until midnight; that sometime before midnight, as nearly as he could place it, at about half an hour before he had left work, he had seen the defendant, Edward Garvin; that the defendant had driven up to his service station in a convertible automobile; that the witness had taken the license number of the automobile; that he had noticed it particularly; that he had filled the automobile tank with gasoline at the request of Mr. Garvin and had washed the windshield; that while lie was servicing the car Garvin had been exceedingly nervous and restless; that he had gone over to stand by the curb where he could watch the automobiles which were traveling south on the highway.