The Case of the Half-Wakened Wife

Chapter 19

When court reconvened at two o’clock, Hamilton Burger, in the manner of a lawyer calling his star witness, said, “Mr. Robert P. Noxie, will you please take the stand.”

Mr. Noxie took the stand and qualified himself as an expert on ballistics with a wealth of descriptive detail which showed only too well the manner in which the man enjoyed an opportunity to discuss his technical qualifications in front of an audience.

When some twenty minutes had been consumed in relating the experience and studies of the witness, Hamilton Burger got down to the meat of the situation.

“I hand you herewith a piece of lead, shaped as a bullet, bearing certain identifying marks and ask you if you have ever seen that piece of lead before?”

“I have. Yes, sir.”

“Was that in your possession?”

“It was. Yes, sir.”

“Who gave it to you?”

“Dr. Stirling.”

“And where were you when that was given to you?”

“At the morgue in the autopsy room. Dr. Stirling handed it to me almost as soon as it was taken from the body of Scott Shelby.”

“Just what is that piece of lead, Mr. Noxie?”

“That is a thirty-eight caliber bullet. It has a weight of one hundred and fifty grains. It will leave the muzzle at approximately six hundred and ninety-five feet per second and will penetrate four seven-eighth inch pine boards.”

The witness glanced at the court reporter to make certain his testimony was being taken down and smiled triumphantly at Perry Mason, as much as to say, “Go ahead, see if you can trap me!”

“Now then,” Hamilton Burger said, “I will ask you whether it is possible to tell from what particular weapon this bullet was fired.”

“It is. Yes, sir.”

“Now by that I do not mean, what particular type of weapon but I mean what individual weapon.”

“Yes, sir. This bullet was fired from a Colt Police Positive revolver Number 14581.”

The district attorney said, “I hand you a Colt Police Positive revolver which has been heretofore introduced in evidence and ask you if that is the weapon referred to in your testimony.”

“It is.”

“I will now ask you how you know that this bullet was fired from that gun.”

“You want me to explain that to the jury?”

“If you will, please, yes, sir.”

“That answer will take some little time.”

“Go ahead,” Hamilton Burger said with a wave of his hand, “we have all afternoon.”

“In the first place,” the witness said, “it must be borne in mind that there are certain lands in the rifle barrel. These serve to guide the bullet, imparting to it a rotary motion when the bullet is discharged. Now these lands naturally have certain microscopic variations. And, in the course of time, a barrel will become pitted or rusted so that there will be certain scratches, certain little projections, various little things which will leave little marks or scratches upon the bullet as the bullet tears on past. In fact, every weapon imparts a distinctive marking to each bullet which is fired through its barrel. These markings are invariably sufficiently identical to make possible a definite identification.

“Now, when I first received this revolver in question, I proceeded to fire a series of test bullets through the weapon. I fired those bullets into a cylinder of water, taking care to fire the bullets straight down into the water so that there would be no distortion of the tip.”

The witness turned and looked to the jurors and, quite evidently flattered by the interest he was arousing, said, “I then set up a microscope and photographed those various bullets. I have here a series of twelve photographs showing certain distinctive markings upon these six bullets, each photo showing two sides of each bullet.”

The witness opened a brief case, produced a dozen eight by ten photographs, then said, “These photographs are micro-photographs, that is, they were taken through a microscope. They show the appearance of the bullet just as it was seen through the microscope with a relatively low power of magnification and a large field.

“I have arranged these photographs so that certain distinctive markings upon the bullets are in evidence. Each one of these first six photographs which I now hand you, Mr. Burger, is a photograph of a different bullet fired from the same weapon but taken at such an angle that it is possible to see identical surface scratches upon each bullet.

“And I now hand you a composite photograph which is a photograph composed of strips, taken from each bullet, and placed one immediately above the other so that the scratches or blemishes on the sides of these bullets form a continuous line upon the photographs.”

Hamilton Burger said, “I ask that each of these photographs be properly identified and admitted in evidence.”

“No objection,” Mason said.

There followed a short interval during which each photograph was identified, introduced in evidence, and marked by the clerk of the court as an appropriate exhibit.

“Now then,” Hamilton Burger said, “returning to my question as to how you know this fatal bullet was fired from this particular gun, I will ask that you resume your testimony to the jury, Mr. Noxie.”

“Yes, sir. Having identified the individual markings of the gun barrel as they appear on the surface of the test bullets, so that I am acquainted with what one might term the idiosyncrasies of the weapon in question, I then turned my attention to the fatal bullet. There are, of course, some slight distortions about the head of the bullet, but these are very slight indeed when one considers that it penetrated bone. The bullet is, in fact, in remarkably good condition. It is in unusually good condition. I took this bullet, placed it under the microscope in my laboratory and proceeded to rotate it while I carefully photographed it. I then used a comparison microscope which fuses two objects into a single image. By placing the fatal bullet on one table of the microscope, and a test bullet on the other, I was able to match up the grooves and scratches in the manner such as you see them in this photograph.”

Hamilton Burger said, “Just a moment, was this photograph which you now produce taken through the comparison microscope?”

“No, sir. This is a photograph which shows two bullets, the fatal bullet on the left hand and the test bullet on the right. The lighting is absolutely identical in each case and the photograph is taken so as to show the similarity in the grooves and scratches. You can very plainly see them but in order to make that more evident, I have prepared herewith a composite photograph of the two bullets. The lower half is the photograph of a test bullet, and above this line of demarcation shown on the photograph, the bullet is the fatal bullet. It will be noted that the scratches and grooves combine in such a way that it precludes any possibility of coincidence and proves, in fact it demonstrates absolutely, that this bullet was fired from this particular weapon.”

Hamilton Burger, showing that he was very much impressed by the testimony of the witness, said, “Your Honor, I want this photograph to be introduced in evidence, and then I would like to have the jury inspect it.”

The witness said glibly, “I have already arranged for that, Mr. Burger. I have had twelve duplicate prints of this photograph made. Each print is made from the same cut film negative and the prints are all absolutely identical.”

“Under the circumstances, Your Honor,” Hamilton Burger said, “I ask that each one of the jurors be given one of these prints and an opportunity to examine it carefully.”

The witness dove down into his voluminous brief case, came up with twelve magnifying glasses. “I have some visual aids for the jurors,” he said.

The district attorney gratefully accepted the magnifying glasses, passed a photograph and a magnifying glass to each of the jurors.

Mason watched the jurors keenly.

Some of them made a rather detailed examination. Some of them looked at the photograph for only a few moments, then raised their eyes to study the defendant, an infallible sign that they had made up their minds.

“Do you wish to cross-examine this witness, Mr. Mason?” Burger asked.

“Yes, certainly,” Mason said, giving no external evidence of the shock he had received from Noxie’s testimony. “Then I suggest the jurors retain their photographs and magnifying glasses during the period of cross-examination so that in case there is any necessity to refer to these photographs they will have them handy.”

“Is there any objection?” the judge asked Mason.

“None whatever, Your Honor.”

“Very well, it will be so ordered.”

Noxie turned to Perry Mason with a confident, somewhat patronizing smile. “Go right ahead with your questions,” he said.

“Thank you,” Mason retorted with exaggerated politeness. “Now as I understand it, Mr. Noxie, when a fatal bullet penetrates tissues and scrapes against bone, it has not only the scratches and markings of the rifle barrel which were etched into the lead as the bullet left the barrel, but it also has the flattening effect of impact and such other scratches as may have been received by penetrating bony tissue.”

“That is, in the main, correct.”

“Now, take for instance in the present bullet. There were certain scratches upon the fatal bullet which were not left by the barrel of the weapon.”

“Well, there could have been, but this bullet is in very good condition.”

“I believe you said unusually good condition.”

“Yes, sir.”

“Then this bullet is not what you would consider a usual fatal bullet.”

“I didn’t say that. I said the bullet was in unusually good condition.”

“What is unusual about it?”

“Well, it shows very little flattening.”

“What does that indicate?”

“Merely that we are particularly fortunate in having a bullet where it is possible to identify the distinguishing marks on small portions of it. Quite frequently, when a bullet is flattened or distorted, there will be one side that is almost valueless. But, in this case, there is only a very little flattening.”

“The bullet penetrated bony substance?”

“So I understand.”

“You were present at the post-mortem?”

“Yes.”

“Did you see the bullet extracted?”

“I did. Yes, sir.”

“And marked by Dr. Stirling?”

“Yes, sir.”

“And then what was done with it?”

“I immediately took it into my possession.”

“Then according to your testimony, there should be minor scratches upon this bullet which would have been the result of penetrating the body of the deceased.”

“Well, there could have been.”

“Have you found any such scratches?”

“I haven’t looked for them.”

“You have merely assumed that they were there?”

“Yes.”

“You were very careful to look for scratches which proved that the bullet had been fired from the revolver which has been introduced in evidence.”

“Naturally, that was the point I was called upon to establish.”

“But you apparently took no interest whatever in finding any scratches which would indicate that this bullet had penetrated the body of the deceased and caused death.”

“I took the doctor’s word for what caused death. That is, for the effect of the bullet on the body of the deceased. I took the evidence of my own eyes that the bullet had penetrated the body of the deceased.”

“You saw the hole of entrance?”

“I did.”

“And were present while the doctor performed the autopsy?”

“Yes, sir.”

“And saw the position of the bullet?”

“I did. Yes, sir.”

“By the way, were any photographs taken of the bullet hole in the neck?”

The witness cleared his throat. “Well, I took some photographs, yes. But they didn’t establish anything other than that there was a bullet hole in the back of the neck.”

“Where are those photographs?”

“I have them in my office.”

“You didn’t bring them to court with you?”

“No.”

“Why not?”

“Because I saw nothing to be gained by bringing them with me. I take many photographs which I don’t use.”

Mason said, “As I understood your testimony, this bullet is capable of penetrating four, seven-eighth inch pine boards?”

“That is right. Those are the statistical qualifications of this bullet fired from this type of firearm with this type of powder load.”

“The bullet didn’t penetrate very deep into the body of the deceased.”

“The bullet struck against bone. When it strikes against bony substance, you can’t tell what a bullet will do, particularly when the body is, perhaps, falling when the bullet strikes.”

“Then you would say that Scott Shelby had been falling when the bullet struck?”

“No, sir. I wouldn’t say that.”

“What would you say?”

“I’m not an expert on that.”

“You’re an expert on ballistics. How do you account for the shallow penetration of this bullet?”

“Well,” the witness said and fidgeted, “I have my own theory.”

“All right, what is that theory? We want it.”

“My theory,” the witness said, “is that... Well, I guess I’m not supposed to go into that. I’m only supposed to identify the bullet.”

“No,” Mason said, “you’re an expert on ballistics. You have a theory as to the facts which accounts for the shallow penetration of the bullet. I want that theory.”

“Well, if you want to know it,” the witness said, “it’s my theory that the man was shot while he was in the water. Just about the time he’d hit the water.”

“Well, now,” Mason said, “that is very, very interesting. And what makes you think that, Mr. Noxie?”

“Oh, if the Court please,” Mr. Burger said in a tone of martyred, weary protest, “if we’re going to embark upon all of these irrelevant side matters, the case will take forever. We have already consumed a great deal of time and it seems to me that any mere theory as to where or how the shot might have been fired which this witness may have, a theory which has no particular proof to back it up, is merely taking up time.”

“As you yourself remarked but a short time ago,” Mason said, “we have all afternoon.”

“And I don’t propose to consume it with a lot of trivialities,” the district attorney snapped.

“Are you making an objection?”

“I am. I object that it’s not proper cross-examination, that it’s incompetent, irrelevant, and immaterial.”

The judge said, “The Court doesn’t care for any argument, Mr. Mason. The objection is overruled. The witness will answer the question.”

“Well,” the witness said, “you have several things to account for in this case. One of them is the peculiar nature of the hole of entrance.”

“Oh, there was something peculiar about that?” Mason asked.

“Well, it wasn’t round. It was sort of oval in shape.”

“And what does that mean?”

“Well, that usually means that the bullet had ceased to travel in a straight line. That is, it had started to wobble.”

“Can you illustrate what you mean by that?”

The witness took a pencil from his pocket, said, “Now a bullet that is properly rotating travels in a straight line, like this. But, if a bullet is defective, or if there is something defective about the weapon that fires it, the bullet begins to wobble in this manner. — You will see that the point of the pencil is moving forward in a straight line, but the rear of the pencil, the part that is represented by the rubber eraser, has begun to move in a circle some two inches in diameter.”

Mason nodded.

“Now then,” the witness went on, “when that bullet strikes, it will not leave a round hole, but will leave what is known as a keyhole point of entrance, so called because of the fact that the bullet strikes partially broadside, and the description of it as a keyhole is very illustrative.”

“Quite interesting,” Mason said conversationally. “Now in this case, you have what is known as a keyhole bullet wound of entrance?”

“Yes, sir.”

“And you also have some other unusual factors?”

“I’ve mentioned that the distortion or the flattening of the bullet was very, very small. You can see that this bullet has only a few chewed-up surfaces on the nose of the bullet. It hasn’t flattened or mushroomed in any way.”

Mason nodded. “What does that indicate?”

“That, plus the penetration of the bullet, indicates to my mind that the bullet had struck some smooth surface and glanced before it entered the body of the decedent.”

“Oh,” Mason said, “the bullet had glanced, had it?”

“That’s only his theory, if the Court please,” Hamilton Burger said.

“He’s testifying as an expert,” Mason pointed out. “His theories are supposed to be the result of an expert interpretation of facts.”

“Well, I can’t see that it makes any difference, myself,” the district attorney said somewhat testily.

“You can’t?” Mason asked.

“No, I can’t!” the district attorney said angrily. “And if you weren’t merely trying to grasp at straws, you...”

“That will do,” the Court interrupted. “Counsel will refrain from personalities.”

Mason turned to the witness. There was something of a purring satisfaction in his voice. “You left the photographs showing this peculiar wound of entrance in your office?”

“That’s right.”

“You didn’t bring them to court?”

“No, sir.”

“You had this theory in regard to the bullet having glanced?”

“I did.”

“And did you communicate that theory to the district attorney?”

“Objected to as improper, irrelevant and immaterial, not proper cross-examination,” Burger protested.

“On the contrary,” Mason said. “I think it is proper cross-examination. It goes to show the qualifications of the witness as an expert. It goes to show the bias of the witness, and in the event it should appear the witness had communicated this theory to the district attorney, and the district attorney had advised the witness to say nothing about it unless he was asked to do so, and the district attorney had been the one who advised the witness not to bring those photographs to court, then it would go a long ways toward showing the bias of the witness.”

“Your Honor, I object to that. It assumes a fact not in evidence,” Hamilton Burger said, “it touches the integrity of my professional reputation and I object to it as a matter of personal privilege. I ask that counsel be ordered to apologize to me for those remarks.”

“On the contrary,” Mason said, “there’s nothing to apologize for. If those are the facts, they speak for themselves. If those aren’t the facts, the district attorney can very readily let me get to the truth of the matter by simply asking this witness questions.”

“It’s absurd to take up time with such trivia,” the district attorney shouted.

Mason smiled. “Look at the face of the witness if you think it’s trivial, Your Honor.”

The witness had shifted his position uneasily on the witness stand. His face was dull red.

“Your Honor, I object to that statement,” Burger said. “The face of the witness is not in evidence.”

The judge smiled. “The objections are overruled. I’m going to let the witness answer that question.”

“Go ahead,” Mason said, “answer the question.”

“Well, yes, I did outline my theory to Mr. Burger and he didn’t think...”

“Never mind what you think he thought,” Mason said, “let’s confine ourselves to what he said.”

“Your Honor, this is all incompetent, irrelevant and immaterial,” Burger protested. “It is not proper cross-examination and it relates to a conversation which this witness had with counsel for the prosecution. Certainly that is not evidence.”

“I am inclined to think that it is not proper to introduce a conversation between this witness and counsel for the prosecution. That is, unless the conversation is specifically limited within certain designated points,” the judge ruled. “But, this being cross-examination, you have the right to ask leading questions, Mr. Mason.”

“Very well,” Mason said. “I will ask you, Mr. Noxie, if it isn’t a fact that you communicated your theory to the district attorney; that you pointed out to him that in your opinion the physical evidence proved conclusively that the bullet must have struck the surface of the water and glanced before embedding itself in the neck of the decedent, and the district attorney told you not to say anything about that and warned you that he didn’t want that phase of the case brought into court.”

“Well, not in those words,” the witness said.

“Well, what were his exact words on that point?”

“Same objection,” Burger said.

“This objection is overruled,” Judge Maxwell said. “The question now calls for a specific part of a specific conversation.”

“But what possible significance can anything that I told this witness in regard to his testimony have upon the facts of the present case?” Burger stormed.

Mason said, “It isn’t what you told the witness, it’s what the witness did. It’s the fact that the witness came to court and, following your suggestion, left those photographs in his office. Following your suggestion, he didn’t say anything at all about this matter on direct examination. In fact, he tried to avoid the issue until I pinned him down definitely to it and then he blurted out the truth. — Now then, Your Honor, I submit that any witness who permits himself to be guided in his testimony in a murder case by the direction of a district attorney, is a biased witness and that we have the right to show that bias to the jury.”

“The bias, or lack of it, is already apparent to the jury,” the judge said.

“But it isn’t in the record,” Mason pointed out. “I want to get it in the record. I want the record of this case to show that the district attorney made a certain suggestion in regard to the testimony of this witness, and that this witness proceeded to act upon that direction.”

“I think on that theory, you are entitled to have it in the record,” the judge said. “The witness will answer the question.”

“Well,” Noxie said, shifting his position once more, “the district attorney told me that I didn’t need to say anything about that. He said that of course if I was asked it would be a different matter, that I’d have to tell the truth, but he didn’t want me to volunteer any information along those lines, and that he didn’t intend to ask me questions about it.”

“And did he tell you particularly not to volunteer that theory?”

“Well, yes.”

“Unless you were asked about it specifically and in so many words?”

“Well, something to that effect.”

“And did he suggest that you refrain from bringing those photographs showing the peculiar wound of entrance to court with you?”

“Well, he said there was no use in getting them mixed up with the other photographs.”

Mason smiled. “Didn’t want you to get them confused. Is that right?”

“Yes.”

“So that in case you pulled out a photograph of the test bullet and inadvertently pulled out at the same time one of these photographs showing the peculiar wound of entrance, I wouldn’t happen to get a glimpse of that entrance wound.”

“Well... I don’t know what he had in mind. He simply said that he didn’t think there was any use in bringing those photographs to court because I might get them confused.”

“And more than that, he asked you specifically not to bring them to court, didn’t he?”

“Well, yes.”

Mason said, “I think that’s all.”

“That’s all,” Hamilton Burger snapped.

“Just one moment,” Mason said, “if the Court please. It occurs to me there are one or two more questions I would like to ask Dr. Stirling on cross-examination. I see that he hasn’t left the court. I would like to have him return to the stand so that I may ask him those questions. I realize, of course, that this is somewhat out of order; but I think under the circumstances the Court will bear with me.”

“Very well,” the Court said. “Dr. Stirling, will you return to the stand for one or two questions, please? That’s right. You have already been sworn, Doctor. This is additional cross-examination by Perry Mason. Very well, Counselor, proceed with your questions.”

Mason said with a smile, “Doctor, you didn’t mention anything about this peculiar wound of entrance.”

“I wasn’t asked,” the doctor snapped testily.

“That’s right. I didn’t ask you about it because I hadn’t been permitted to see the body prior to the time the postmortem was performed, and of course after the post-mortem was performed an incision had then been made along the line of the neck in order to recover the bullet and the peculiar nature of the wound of entrance was not apparent. Therefore I was hardly in a position to ask you about it.”

“Well, I answered all your questions.”

“You did indeed, Doctor. You didn’t misrepresent a thing.”

“Thank you,” the doctor said with some acidity.

“But,” Mason said, “on the other hand, you carefully avoided volunteering any information on this subject. Now then, Doctor, I am wondering if the District Attorney, Hamilton Burger, told you not to mention anything about the wound of entrance.”

“Your Honor, I object to this. It is improper cross-examination,” Burger said. “It is personally embarrassing to me. It is casting an aspersion upon my professional integrity, and it seems to me to be entirely out of place. The Court would hardly permit me to inquire as to conversations which took place between the attorney for the defense and his witnesses.”

“I don’t know why not,” Mason said. “In the event I instructed a witness to suppress any fact and the witness so suppressed that fact...”

“No fact has been suppressed,” the district attorney shouted angrily.

Mason said, “If the Court please, in the event I asked a witness for the defense to suppress certain facts, I would certainly think that the district attorney would be entitled to bring out that conversation on cross-examination, not for the purpose of showing any lack of integrity on my part but merely for the purpose of showing the bias of a witness who would suppress certain facts at the request of counsel for either side.”

“I didn’t request anyone to suppress anything,” Hamilton Burger said. “Certainly not. I am talking about what would happen if I asked the witness to suppress something,” Mason said, smiling. “But I do want to establish on the record that the bias of this witness was such that when a suggestion was made by the district attorney that it would be advisable not to comment on this wound of entrance the witness acquiesced and was thereafter very careful to mention nothing about the wound of entrance.”

“I think the question as it is asked is proper,” Judge Maxwell ruled. “The district attorney of course has the opportunity on redirect examination to clarify the situation in any way that is compatible with the existing facts.”

“What did the district attorney tell you about that, Doctor?” Mason asked.

Doctor Stirling said, “He simply told me that I didn’t need to say anything about the wound of entrance unless I was asked.”

“That wound impressed you as being unusual?”

“No, sir. It did not.”

“Nothing unusual about it?”

“Certainly not. It was a very ordinary keyhole wound. You see them lots of times.”

“Do you indeed, Doctor?”

“Yes, sir.”

“Doctor, do you know what causes them?”

“It’s caused by defective ammunition or defective rifling. It may be caused by half a dozen things.”

“How many such keyhole wounds have you seen, Doctor?”

“Dozens of them.”

“How many wounds of entrance do you suppose you have seen in the last two years, Doctor?”

“I would say several hundred.”

“Now then, in those several hundred can you recall any other wound of entrance where there was this peculiar keyhole effect?”

“Yes, sir.”

“All right. What was it?”

“It was a case involving the shooting of a Negro. I have forgotten his name. It occurred about — it was around two years ago.”

“All right. We’ll consider for the sake of the argument that that comes within the province of my question. Now, what other ones?”

“Well, I — you say within two years?”

“Yes.”

“I can’t remember any others within two years.”

“Within four years?”

The doctor said, “I think there was one other — I can’t remember.”

“So when you say that you have seen dozens of them, that is somewhat of an exaggeration?”

“Well, perhaps it may have been. I don’t know.”

“But a wound of that nature is rather unusual?”

“Well, naturally it’s distinctive.”

“And it can be caused by a glancing bullet?”

“Yes. If you want it that way.”

“It’s not the way I want it, Doctor. I’m simply trying to find out the cause of this peculiar condition.”

“It could be caused by a glancing bullet, but I don’t see what difference that makes.”

“It makes this difference,” Mason said. “In one instance the fatal wound would indicate a person must have deliberately aimed at the decedent, whereas in the other instance the aim might just as deliberately have been at some other mark; but owing to a fortuitous circumstance, such as the glancing of a bullet, the bullet aimed in a different direction, still penetrated the body of the decedent.”

“I’m not going to argue that with you,” the doctor said.

Hamilton Burger said with a frosty smile, “Thank you, Doctor. I think that when counsel comes to argue that theory to the jury, he will find some very peculiar legal stumbling blocks which will prevent him cheating justice with any such...”

“That will do,” Judge Maxwell snapped. “The jurors will disregard any interchange of personalities between counsel. Are there any further questions of this witness?”

“No questions,” Hamilton Burger said.

“I have no further questions, Your Honor,” Mason said.

“Very well. The witness will be excused and at this time the Court will take a ten-minute recess during which the jurors are admonished not to discuss the case among themselves, permit it to be discussed in their presence, or to form or express any opinion as to the guilt or innocence of the accused.”