“I had a print, yes.”
“Where did you get it?”
“The sheriff gave it to me.”
“Told you to study it carefully?”
“Yes.”
“Told you he wanted you to identify the man in the photograph?”
“Oh, I don’t think he said it that way. He asked me if that wasn’t the man that had been down there on the float with Mrs Bancroft the night before and I told him it sure looked like it.”
“And he left you the photograph and told you to study it?”
“Not right away. That was the next morning.”
“The morning of the twelfth?”
“Yes.”
“And you studied that picture off and on during the day?”
“Yes.”
“And then after you’d studied the picture you were taken to the morgue.”
“That’s right.”
Mason regarded the man thoughtfully. “Did you have your glasses on when you looked at the picture?”
“Sure.”
“Where are your glasses now?”
The witness reached automatically for his breast pocket, then took his hand away and said, “I left them down in my room.”
“But on the eleventh and twelfth when you looked at the picture you had your glasses on, is that right?”
“Yes.”
“You can see better with your glasses on?”
“Naturally.”
“Could you have identified the picture without your glasses?”
“I don’t know. I don’t think so.”
“But you identified the picture here in the courtroom without glasses.”
“I knew whose picture it was.”
“How did you know whose picture it was?”
“Well, it had to be the picture of this dead man.”
“What do you mean, it had to be?”
“Well, it was, wasn’t it?”
“I’m asking you,” Mason said. “Do you know whose picture it was?”
“Yes. I swore to it, didn’t I?”
“And you can see it without your glasses?”
“Yes.”
Mason walked over to the exhibit, picked it up, took another photograph from his pocket, compared them for a moment, then approached the witness and said, “Now look at this photograph. Are you positive that’s the man that was with the defendant on the night of the tenth?”
“I told you I’m positive.”
“That’s the man?”
“Yes.”
“No question of doubt in your mind?”
“Just a moment, just a moment,” Hastings shouted, jumping to his feet. “Counsel has two photographs there, one that he’s taken from his pocket while we couldn’t see what he was doing.”
“All right,” Mason said, “I’ll show the witness both photographs. These are both photographs of the same person?”
“Yes.”
“Let me see that photograph,” Hastings said.
“Certainly,” Mason said, handing the district attorney the two photographs.
“Now, wait a minute, wait a minute,” Hastings said. “This isn’t being fair to the witness. These are two different photographs.”
“He’s just sworn they’re photographs of the same person,” Mason said.
“Well, I submit that the witness should be advised...”
“Advised of what?” Mason said.
“That this second photograph is not a photograph of Willmer Gilly.”
Mason turned to the witness. “Do you see any difference in these pictures, Mr Kirby?”
The witness squinted his eyes, took the photographs, held his head back a ways and said, “They look the same to me but I don’t see so good without my glasses.”
“Do you wear your glasses all the time?”
“Sure.”
“Why didn’t you wear them today?”
“Well...”
“Why?” Mason asked.
“Well, I left them down at my room at the club.”
“Did anyone suggest that you might leave your glasses there?”
“Well, I was told that if I came in here wearing glasses and tried to make an identification that they’d make things pretty rough for me.”
“Why?”
“Well, they just said that it would be pretty rough for me.”
“Who said that?”
“The district attorney.”
“And told you to leave your glasses down at the yacht club?”
“He said it might be a good plan.”
“That,” Mason said, “was because you weren’t wearing the glasses on the night of the tenth, isn’t that right?”
“Well, you can’t wear glasses around water when a fog is coming in. It’s better not to have anything on at all. You can see clearer without glasses than you can with glasses. You take a lot of fog coming in and it gets all over the lenses and you just keep wiping it off and wiping it off and it’s better not to have them.”
“So you weren’t wearing glasses on the night of the tenth?”
“I told you it was foggy. The fog was coming in.”
“Then when you saw the man whom you later identified as Willmer Gilly, you weren’t wearing your glasses?”
“I told you I didn’t have them on while I was out there on the float. How many times do I have to tell you that?”
“But I’m just trying to check with your testimony,” Mason said patiently. “You didn’t have them on when you first saw Gilly.”
“No.’’
“Not at any time?”
“No.”
“Not when you saw the defendant?”
“No... but I recognized her all right.”
“Certainly you recognized her all right,” Mason said, “because you’ve known her for years. But you didn’t have your glasses on when you looked at these two pictures and you certainly testified that they were pictures of the same individual.
“Now, if the Court please, I wish to have the second picture marked for identification. That is a picture which I intend to connect up later on and I would like to have it marked for identification as defendant’s exhibit Number Two.”
“So ordered,” Judge Hobart said.
“I object to this type of cross-examination,” Hastings said. “This is the old razzle-dazzle for which counsel is noted. It’s a method of getting a witness mixed up.”
Mason smiled at the judge. “I’m not the one who asked him to leave his glasses down at the yacht club, Your Honour. The witness identified a picture which had been introduced in evidence by the People as that of Willmer Gilly, the person who was down at the yacht club on the night of the tenth with the defendant. I simply handed him two pictures and asked him if they were both pictures of the same person and he said they were.”
“The record speaks for itself,” Judge Hobart said. “The second picture may be marked for identification as defendant’s exhibit Number Two.”
“I can see all right without my glasses,” Kirby said. “I don’t wear them lots of times when I’m down there around the water, particularly at night.”
“I understand,” Mason said. “When the moisture gets on the lenses they’re something of a nuisance.”
“That’s right.”
“And since it was a foggy night on the night of the tenth you had the glasses off.”
“Well, it wasn’t real foggy the first part of the night but it was moist and damp, and then of course when the fog came in it wouldn’t have made any difference if you’d had a pair of binoculars on. You couldn’t see anything. That is, at any distance.”
“Thank you,” Mason said. “I have no further questions.”
Hastings hesitated for a long moment, then said, “No redirect.”
“Call your next witness,” Judge Hobard instructed.
“I’ll call Sheriff Jewett, the sheriff of Orange County, to the stand,” Hastings said.
Sheriff Jewett testified to having received a report from his deputy that a yacht was aground at the upper end of the bay, that a body was in it, that he went to the scene, arriving there about four o’clock in the afternoon. That he boarded the yacht, found the body, that a Coast Guard boat was standing by, that they took the yacht in tow and towed it to the Blue Sky Yacht Club where it was moored so that the boat could be searched for fingerprints and clues. That photographs were taken, that the body of Willmer Gilly was lying on its stomach facing the after portion of the boat, that the body was in the main navigating cabin, that there was a bullet hole in the heart. That he had subsequently supervised the removal of the body to the county morgue, that there an autopsy surgeon had recovered a bullet from the body, that the sheriff had taken charge of that bullet which he identified and which was introduced in evidence.