“Counsel is not trying to impeach a dead man,” Judge Hobart said. “He is trying to test the recollection of a witness. However, since counsel can quite readily reframe the question I will sustain the objection.”
“To save any question,” Mason said, “I’ll reframe the question to show exactly what I am getting at.
“Sheriff, on some of the occasions when you saw the decedent, Willmer Gilly, he was under arrest?”
“Yes.”
“And you saw him in your official capacity?”
“Yes.”
“Did you make any of those arrests?”
“One.”
“On what charge?”
“Objected to as incompetent, irrelevant and immaterial and not proper cross-examination,” Hastings said.
“The objection is sustained,” Judge Hobart ruled.
“No further questions,” Mason said.
Robley Hastings, with something of a dramatic gesture, said, “I call Drew Kirby to the stand.”
Kirby proved to be a slow-moving, grizzled individual in his fifties, with watery blue eyes, an habitual squint and a leather-skinned face — the skin weather beaten to a deep, permanent tan.
“Where are you employed?” Hastings asked.
“At the Blue Sky Yacht Club.”
“Where is that?”
“That’s down on the bay.”
“Now, by the bay you mean what bay?”
“Well, Newport-Balboa Bay.”
“And how long have you been employed there?”
“For four years.”
“Consistently?”
“That’s right.”
“What are your duties?”
“I’m a general roustabout and caretaker. I sort of keep things running, keep track of things for the members, occasionally row them back and forth to yachts — them and their friends.”
“Were you so employed on the tenth of this month?”
“I was.”
“On the evening of the tenth?”
“Yes, sir.”
“I’m going to show you a picture of Willmer Gilly, one of the People’s exhibits, and ask you if you have ever seen him before.”
“Yes, sir.”
“Alive or dead?”
“Both.”
“To the best of your recollection, when did you see him first?”
“It was around seven o’clock, I guess, on the tenth.”
“Where was he?”
“Down at the yacht club.”
“Who was he with, or who was with him?”
“Mrs Bancroft was with him.”
“Now, by Mrs Bancroft you mean Phyllis Bancroft, the defendant in this action, the woman sitting to the left of Perry Mason?”
“Yes, sir.”
“And where was she?”
“She was out on the landing — the float.”
“And what was she doing?”
“Well, she was getting in a dinghy that belonged to the Bancroft yacht, the Jinesa.”
“Did you see her talking to Gilly?”
“Oh, yes, she was talking to him.”
“And what happened?”
“She rowed him out to the yacht.”
“She rowed him, or he did the rowing?”
“Well, she rowed him out and put him aboard the yacht.”
“Then what?”
“They were aboard the yacht for about ten or fifteen minutes, I guess, I don’t know. I didn’t see them after they got aboard the yacht. Then I saw her rowing back.”
“Alone?”
“Yes, sir. Alone.”
“Then what?”
“Well, she left the dinghy tied up at the float and went off somewhere and I saw her come back after a while, I guess it was maybe an hour.”
“And what was she doing then?”
“Well, she had some packages in a shopping bag.”
“And what did she do?”
“Got in the dinghy and rowed out to the yacht.”
“And then what happened?”
“Well, now there I don’t know what happened, sir. I was busy for a while and a thick fog had come in, one of those real heavy, pea-soup fogs. You couldn’t see a darn thing — that is, I mean you couldn’t see out in the bay, at all.”
“Could you see as far as the yacht, the Jinesa?”
“No, sir.”
“And what did you do?”
“Well, I was busy around the place.”
“When did the fog lift?”
“It didn’t lift. It just settled down heavy.”
“Well, it must have lifted sometime,” Hastings said, his manner showing annoyance.
“Oh, sure, it cleared up the next afternoon.”
“And when did you next see the Bancroft yacht, the Jinesa?”
“I didn’t see it. It was gone.”
“But you did see it again?”
“Oh, sure. About... I don’t know, I guess it was about four-thirty or so the next afternoon they came bringing it in.”
“What do you mean, they?”
“The sheriff and some deputies.”
“How did they bring it in?”
“They were towing it with another boat.”
“What other boat?”
“A Coast Guard boat.”
“And what was done then?”
“Well, they cleared off a place at the float and tied the boat up and roped off the float, and then a lot of photographers and police officers came aboard.”
“Now, did you see Willmer Gilly after his death?”
“Yes, sir.”
“Where?”
“At the county morgue.”
“You were taken there to look at the body?”
“Yes, sir.”
“And was that the same body, that is, the body of the same man that you had seen on the evening of the tenth with the defendant, Mrs Bancroft?”
“Yes, sir.”
“You’re positive?”
“Yes, sir.”
“Is there any slightest shadow of doubt in your mind?”
“No, sir.”
“You may cross-examine,” Hastings said to Perry Mason.
Mason arose from his chair at the counsel table, walked over to stand in front of the witness, whom he regarded with a kindly air and said conversationally, “You’ve identified this photograph of Wilmer Gilly.”
“That’s right.”
“When did you first see a photograph of Gilly?”
“I saw Gilly himself.”
“I know,” Mason said, “but when was the first time you saw a photograph of Gilly?”
“Well, that was when they came looking around... Let me see, that was... Why, yes, that was about nine o’clock, I guess, on the night of the eleventh.”
“How long after the yacht had been brought in to the float?”
“Oh, I don’t know, four or five hours, I guess.”
“Who showed you the picture?”
“The sheriff.”
“Ask you if you’d ever seen him before?”
“Something like that.”
“Actually, didn’t the sheriff ask you if that wasn’t a photograph of a man that had been with Mrs Bancroft the night before, and ask you if you hadn’t seen her row him out to the boat?”
“Something like that, I guess.”
“Do you remember the sheriff’s exact words?”
“Well, no. He showed me the photograph. He said he thought I probably had seen the man.”
“Did you agree with him?”
“I told him I might have, yes.”
“Did he ask you to study the photograph carefully?”
“Yes.”
“Did you?”
“Yes.”
“That was before you went to the morgue to look at the body?”
“Yes.”
“When did you go to the morgue?”
“On the evening of the twelfth.”
“How many times had you seen Gilly’s picture before you went to the morgue?”
“Oh, several times.”
“How many?”
“Quite a few.”
“Did you have a copy of the picture in your possession?”