“Very well,” Judge Madison said, “if you want to get that painting in evidence at this time we will have a voir dire examination in regard to the painting. You may step down, Miss Lindsay, and Mr. Gilbert will take the stand.”
Hamilton Burger half got to his feet as though to object, then hesitated and dropped back into his chair.
Mason, biting his lip, apparently with annoyance, turned so that his back was to Hamilton Burger and gave Della Street a reassuring wink.
Gilbert once more took the stand.
“Were you hired to make a copy of a painting that was in the yacht of Otto Olney?”
Gilbert said, “Yes.”
“And you made such a copy?”
“Yes.”
“And this painting which I now show you, which is marked for identification as Defendant’s Exhibit Number One, was that painting?”
“Yes.”
“You were paid for it?”
“Yes.”
“How much?”
“Two thousand dollars.”
“How were you paid?”
“Haven’t we gone all over this?” Judge Madison asked.
“This is now preliminary merely and I want to be sure the foundation is in,” Mason said, glancing surreptitiously at the clock.
“Very well, very well,” Judge Madison said. “Go ahead.”
“I was paid two thousand dollars in cash, in the form of twenty one-hundred-dollar bills.”
“And you made this copy?”
“I did.”
“I think that’s all the questions I have of this witness,” Mason said. “I take it the prosecutor has no desire to cross-examine this witness.”
“On the contrary,” Hamilton Burger said, “the prosecution certainly does intend to cross-examine this witness. And while the prosecution intends to give the defense counsel every latitude in asking questions of the defendant, the prosecution intends to object to the introduction of this painting at this time. It hasn’t been connected up with anything.”
“This is on voir dire to identify the painting,” Judge Madison said. “It is a limited proceeding, simply for the purpose of laying a foundation.”
“That’s why I want to cross-examine the witness.”
“Very well, go ahead,” Judge Madison ordered. “We still have a few minutes before adjournment.”
“I doubt if I can complete my cross-examination before time for adjournment.”
“It’s all right. Go ahead and start your questions.”
“When did you first talk with Durant about copying pictures?” Hamilton Burger asked.
“About a year ago.”
“And you made copies of several pictures for him?”
“Not exact copies. I copied the style, not the picture.”
“But this picture is an exact copy?”
“Yes.”
“Of a painting owned by Otto Olney?”
“Yes.”
“And Durant paid you to make this copy?”
“No.”
“What?”
“I said no.”
“Oh, I see. He didn’t pay you, so you retained possession of the picture, is that right?”
“No.”
“Didn’t you say you were paid two thousand dollars in hundred-dollar bills for making this picture?”
“Yes.”
“And then you retained the picture?”
“Yes.”
Burger, suddenly suspicious of a trap, hesitated, then bent over for a whispered conference with Dexter.
After a few seconds he straightened and said, “Did the defendant pay you to make this copy?”
“No.”
“Who did?”
“It has no connection with this case, so I am not going to divulge the name of my client.”
“Whether it has any connection with this case isn’t for you to say, young man,” Hamilton Burger thundered. “I want an answer to my question.”
“Just a moment,” Mason said. “The district attorney is not entitled to an answer to that question unless he concedes that the painting is pertinent to the case. If the painting is entirely without the issues of this case, then the district attorney isn’t entitled to an answer to that question.”
“You’ve made it a part of the case,” Hamilton Burger said. “I have a right to cross-examine the witness on anything you’ve brought out on direct examination.”
Mason said, “I didn’t bring out the name of the person who had hired him to make the painting.”
“I understood it was Collin Durant,” Burger said.
“Go back and look at the testimony,” Mason said, “and you’ll see the witness never said it was Collin Durant.”
“Well, I’m entitled to an answer to my question.”
Mason said, “If the Court please, the prosecution can’t eat its cake and have it too. If the prosecution wants to stipulate that this painting is a part of this case and that it is a material factor in the case, then I am entitled to have the painting introduced in evidence and the prosecutor can force the witness to answer this question, unless, of course—” here Mason paused and glanced significantly at the witness, slowing his diction so the words came slowly and distinctly — “unless, I repeat, he should state that the answer to that question would involve him in a crime, in which event the witness couldn’t be forced to answer the question.”
Judge Madison regarded Burger’s flushed face, then looked at Mason, then at the defendant. “This is a most peculiar situation,” he said.
“I’m entitled to cross-examine any witness that the defendant puts on the stand as to any matter connected with the testimony the witness has given,” Hamilton Burger said doggedly.
“But this is a proceeding in voir dire,” Judge Madison ruled.
“That makes no difference. I’m entitled to a cross-examination.”
“Provided the question relates to issues which are relevant to the case. You can’t cross-examine a witness on issues which are irrelevant, despite the fact that the witness may have been asked those questions on direct examination.
“Now, you will remember, Mr. District Attorney, that the Court called your attention to the fact that some of the questions called for irrelevant testimony, but you stated that you weren’t going to make any objection, that you wanted the defense to open up all possible doors for your cross-examination.
“You may adopt that attitude, but it is not binding on the Court. The Court doesn’t have to sit here and listen to a lot of evidence which is entirely extraneous. Now, the Court is inclined to believe that Mr. Mason is correct; that if you are going to insist on an answer to something which was not brought out in direct examination and which is not relevant, then the defense is entitled to object. The only way that it would be relevant for you to inquire into the antecedents of this picture would be if the picture itself is going to be introduced in evidence.”
“Well, the defense is trying to get it introduced,” Burger said.
“And you’re trying to keep it out,” Judge Madison ruled. “Now I want to give everyone every opportunity to present competent evidence, but I don’t want to have time taken up with extraneous matters.
“I noticed earlier in the day that this witness did not definitely state that Collin Durant had commissioned him to paint this particular picture, and now he has gone farther and has stated definitely that Collin Durant did not hire him to make this copy. Now then, you want to know who did. That question certainly is of no relevancy unless it has some bearing on the case itself, and it can have no bearing on the case unless the picture is to become a part of the case.”
“Well, I want to know about it,” Hamilton Burger said, “and I think I’m entitled to.”