“And it is quite evident that that couldn’t have been the decedent in this case,” Mason said, getting to his feet.

  “Why not?” Judge Kippen asked.

  “Because,” Mason said, “the testimony of the prosecution shows that the pillow slip was put over the head of the decedent after he was dead.”

  “It is the contention of the prosecution that this proves the guilt of the defendant,” Judge Kippen said.

  “Exactly,” Mason said. “And it is the contention of the defendant that it proves the body could not have been that of the man at whom the defendant fired the shot.”

  “What? How’s that?” Judge Kippen asked, suddenly sitting up. ‘You contend there were two people on that road wearing pillow slip masks?”

  “Why not?” Mason asked. “Let’s let the prosecution prove its case.”

  Judge Kippen shook his head. “If this is merely a technicality,” he said, “I will hold that all of these objections go to the weight of the evidence rather than its admissibility, but if there is a definite point here—”

  “I think there is, Your Honor,” Mason said. “I would like to have the Court inspect the place where this shooting took place.”

  “What would be gained by that?” Judge Kippen asked.

  “We intend to submit a defense,” Mason said, “and I think the Court will understand the nature of that defense after it sees the premises.”

  “Now just a moment,” Geoffry Strawn said, getting to his feet, his voice tinged with anger. “It is a well-known fact that counsel stages theatrical legal pyrotechnics at the time of preliminary examination. That is not the function of a preliminary examination. Such examination is only to ascertain whether a crime has been committed and whether there is a reasonable ground to believe that the defendant committed that crime. I believe that with the evidence right in its present state the Court is bound to answer that question in the affirmative.”

  “Yes,” Judge Kippen said, “the Court is inclined to agree with the prosecutor, Mr. Mason.”

  “Exactly,” Mason said, and sat down.

  “Now just a moment,” Judge Kippen said. “I didn’t mean to preclude you from further argument, Mr. Mason.”

  “There’s nothing to argue about,” Mason said. “In the present state of the evidence it is quite evident that a man has been murdered and there is some evidence indicating that this defendant was guilty of that crime.”

  “Well then, what are we arguing about?” Judge Kippen asked.

  “Simply,” Mason said, “that I don’t propose to let the case go to the Court in the present state of the evidence.”

  “Oh, I see,” Judge Kippen said smiling.

  “Now just a moment, I object to that,” Geoffry Strawn said. “I feel that—”

  “Do you wish to preclude the defendant from putting on evidence?” Mason asked.

  “No, certainly not, but—oh, here we go again with this spectacular request that the Court view the premises. I don’t see what can be gained from viewing the premises. We have photographs here.”

  “Well, introduce the photographs,” Judge Kippen said, “and I’ll look at those. Then if I feel there’s any need to view the premises I’ll take a look at them.”

  “Do you wish me to call the photographer and identify the photographs, Your Honor?”

  “That would be the proper way, unless—”

  “Oh, we’ll stipulate,” Mason said. “We like to save time as much as counsel. If the prosecutor will give us his word that the pictures were taken under his supervision and direction by a qualified photographer, and represent a true picture of the scenes indicated therein, we’ll stipulate they may be admitted in evidence.”

  “Very well, Your Honor,” Strawn said, and then, turning to Mason with a smile, “Perhaps I was unduly critical, Mr. Mason. I appreciate your co-operation in this matter.”

  “Not at all,” Mason said. “Perhaps you’ll have reason to renew your criticism later.”

  Strawn said to the judge, “These photographs are numbered one to ten inclusive, and on the back of each photograph appears a description of what is shown.”

  “May I have copies?” Mason asked.

  “Certainly,” Strawn said, handing Mason ten eight-by-ten glossy prints.

  Mason and Neely studied the prints.

  Mason picked one photograph from the group, and, holding it in front of him, slowly arose to his feet. “Your Honor,” he said, “I would like to direct the Court’s attention and the attention of counsel to photograph number seven purporting to show, as is listed on the back of the photograph, the redwood post in which the bullet lodged.”

  “Yes, I have that photograph,” Judge Kippen said. “What about it?”

  “The Court will notice an oak tree in the background and a little to the left of that post,” Mason said. “There is a very peculiar spot on that tree about, oh, I would say some eight or ten feet from the base of the tree on the left-hand side, a little white spot with a dark center—”

  “Yes, yes, I see it,” Judge Kippen said. “What about it?”

  “It looks like a bullet hole to me,” Mason said, and sat down.

  Strawn said, “Oh, Your Honor, that is obviously some sort of a blemish either on the tree or on the photograph. This is indicative of tactics that are used for delay and to confuse the issues. It couldn’t be a bullet hole because—”

  Strawn ceased talking suddenly.

  “Why couldn’t it?” Mason asked.

  “Because,” Strawn blurted, “there were only two bullets fired from the gun.”

  “Exactly,” Mason said. “One of those bullets has now been identified as having been fired from the gun and lodged in a redwood post. My client stated to the deputy sheriff that she pulled the trigger twice, shooting at random. Now then, if it should appear that the second bullet had lodged in this oak tree, then my contention would be thoroughly established—that the body found in the canyon was that of—”

  “Oh, if the Court please,” Strawn said. “This is absurd! I don’t know whether this is one of counsel’s ingenious traps or not, but counsel had that gun in his possession. What was to have prevented him from firing one shot into the redwood post and one into the oak tree, and then claiming there was a perfect alibi for his client?”

  Mason smiled. “Simply that Sergeant Holcomb has stated that he saw this hole in the redwood post as soon as he arrived at the scene of the crime and that he arrived there before the deputy sheriffs had left.”

  “But Sergeant Holcomb didn’t say anything about the hole in the redwood post to the deputy sheriffs,” Strawn blurted.

  “Are you now attacking the veracity of your own witness?” Mason asked.

  Judge Kippen said, “Well, under the circumstances the “Court has decided to take a look at the premises. It will only take a few minutes. We’ll drive out there and counsel can point out the exact spot, and while we’re out there we’ll take a look at that blemish on the oak tree. Mr. Red-field, the Court would like to have you along to give your opinion as to the cause of that mark on the oak tree.”

  “Very well, Your Honor,” Redfield said.

  Newspaper reporters, sensing a sudden dramatic turn in what otherwise might have been a routine trial, moved toward telephones as Judge Kippen, frowning thoughtfully at the collection of pictures, adjourned court.

  Chapter 15

  The cavalcade of cars wound its way up the steep road, came to a stop at the place where the guardrail had been recently repaired.

  Sergeant Holcomb said with great importance, “The car went through right here, Your Honor.”

  “Where’s the redwood post where the other bullet was found?” Judge Kippen said, holding the photograph. “It—oh, yes, yes, I see it.”

  “And here’s the oak tree,” Mason said.

  Judge Kippen cocked a somewhat skeptical eye at the trunk of the oak tree, then began to show increased interest.

  “Something has chipped off the bark there very recently,” he said. “It looks as though a bullet had—well, I won’t reach any hasty conclusions. Let’s see what caused that mark.”

  Sergeant Holcomb excitedly drew Strawn off to one side.

  Strawn said, “Your Honor, we don’t want to conceal any facts, but we certainly aren’t going to be bound by any bullet hole unless we can show when the bullet was fired into the tree and by whom.”

  “Well,” Judge Kippen said, “if you want to be technical in the matter, Mr. Strawn, I noticed that Sergeant Holcomb stated he had taken personal responsibility for searching the premises for bullets and that he found this bullet in the redwood post and then had ceased to search because two bullets had been fired and he had then accounted for two bullets. That seems to me to be poor investigative technique. I think the premises should have been searched thoroughly so the officer could have said definitely there were no other bullets or marks of bullets readily visible before he terminated his search.”

  “Well, of course,” Holcomb retorted. “I can’t keep anyone from coming out here and firing bullets all over the place—”

  “That will do, Sergeant,” Judge Kippen said tartly. “If there had been proper investigative technique at the time in regard to those bullets, we would have known whether bullets had been subsequently fired or not. Now let’s get a ladder and get up that tree and see what that thing is up there.”

  “I think there’s a ladder up at the house where there’s an archway over the gate. I believe an artist lives there, a woman who—Here she comes now.”

  A tall, slender woman with white hair, long nose and a firm, pointed chin, came moving slowly down the walk.

  “What’s all this?” she asked.

  Judge Kippen smiled and said, “This is an investigation into the shooting which took place up here, madam. I am Judge Kippen and—”

  “Oh, yes, yes,” she said, smiling. “And I am Mary

  Eunice. I’m an artist, living up here in retirement, Judge, and—”

  Judge Kippen intervened in what threatened to be the start of a long-drawn, rapid-fire explanation. “Mrs. Eunice, we’re trying to get at a place on this oak tree about ten feet up where you can see something that looks like a score in the tree. We want to see if that was made by a bullet. Do you have a ladder at your place?”

  “Yes, indeed I have,” she said. “I’ll be only too glad to loan it to you. And if you’re looking for bullets I can give you another one.”

  “What?” Judge Kippen exclaimed.

  “Yes,” she said. “It happened that night when we had all the excitement up here. I thought I heard something strike the house and I thought there was the tinkle of glass. But I really didn’t think much of it. Birds sometimes fly against the house. It wasn’t until this morning that I noticed one of the attic windows has a neat little bole in it, and a spent bullet is partially embedded in one of the rafters.”

  “That happened the night of the shooting?” Judge Kippen asked.

  “Yes, Judge.”

  “When? What time?’’

  “Well—it was after dark, but very early in the evening”

  “Did you hear a shot—or shots?”

  “No, I didn’t. There was a wind blowing, and, of course, a body always hears cars backfiring going down this grade. The exhaust seems to go put … put … put … bang! A body gets so she doesn’t pay any attention to those sounds. All I want, Judge, is to live up here and be left alone. I think there’s a great deal of inspiration living that way, calling upon the inner silence, the reserves of the spirit so to speak. I—”

  Judge Kippen said, “Madam, if you’ll be so kind as to escort us to your house I would like very much to see that bullet. And while we’re up there, Sergeant Holcomb, I suggest that you get the ladder and put it in place against this tree. Then Mr. Redfield can go up and take a look. Now, mind you, Sergeant, I want Mr. Redfield to be the one to recover any bullet if there’s a bullet in there.

  “Now, Mrs. Eunice, if you’ll be so kind, please.”

  They followed her back up the hill, a compact group of lawyers and court attendants, with gleeful newspaper photographers exploding flash bulbs from time to time.

  Mrs. Eunice moved along at the head of the procession with stately dignity, her long legs carrying her up the steep grade as though it were level. She led the way through the arched gateway, up a steep driveway to the garage, then up steps, into a house which was redolent with the smell of paint, upstairs to a seldom-used attic, and pointed out the hole in the window and the partially embedded bullet in a nearby rafter.

  In the attic Redfield promptly took charge. “Just a moment,” he said. “Let’s be very careful here. That’s a round hole in the window and this bullet is lodged in the rafter. By sighting from the location of the bullet through that hole we can tell almost exactly the position from which the shot was fired.”

  Redfield placed a piece of string at the location of the bullet, stretched the string to the hole in the window.

  Judge Kippen said, “That’s the direction all right.”

  Redfield studied the scene. “The bullet broke that pane of glass and then embedded itself in the rafter. It had, of course, traveled over a hundred and fifty yards.”

  Strawn looked through the hole in the window, then sighted along the string, said, “Well, it would seem to be—of course, Your Honor, we’re not accepting any responsibility for this bullet.”

  “I’m not asking you to accept any responsibility for any bullet,” Judge Kippen snapped, “but I certainly do think that the police should accept the responsibility for a thorough investigation.”

  “Of course, the police didn’t have the sole responsibility. At first it was assumed it was in county territory,” Strawn said, “and—well, then the city police took over and—”

  Judge Kippen interrupted, “The law is the science of applying justice to facts which have previously been determined and which are properly adduced in a court of law. When those facts haven’t been properly collected the law is groping in the dark. That’s why we have cases involving a miscarriage of justice.

  “Whenever that happens public opinion blames the law. Actually the law isn’t at fault. It’s incorrect, sloppy investigative technique that’s at fault. Now I want this case thoroughly investigated. I’m going back to my chambers and I’ll reconvene court at three o’clock this afternoon. That should give you an opportunity to have this matter properly and thoroughly investigated—at least to the extent of evaluating this newly discovered evidence.”

  Strawn said, “I’m sorry, Your Honor. Officers talked with Mrs. Eunice before, asking her if she’d heard any shots, and at that time she didn’t tell them about the bullet and—”

  “Because I didn’t know about it,” Mrs. Eunice snapped. “I just found out about it this morning. What do you think I am? A mind reader or something? And besides, no one asked me about a bullet. They didn’t ask me to look the house over to see if any bullets had struck it. They only asked me about the sound of shots. Don’t you go trying to make me responsible for this, young man.”

  “No, no,” Strawn said hastily. “You misunderstand me.”

  “Well, there’s no reason for you to misunderstand me,” she retorted.

  “Indeed there isn’t,” Judge Kippen announced with a smile. “I’ll reconvene court at three o’clock this afterroon. At that time we will resume the case where we left off this morning.”

  Chapter 16

  Word had spread like wildfire and when Court reconvened at three o’clock, standing room in the courtroom was at a premium.

  Hamilton Burger, the big, barrel-chested, bull-necked district attorney had entered the case personally, and was seated beside Strawn, his manner that of a man who is not going to be trifled with.

  Judge Kippen emerged from his chambers promptly at three o’clock. Court was called to order and Judge Kippen, in a deceptively mild voice, said, “People versus Evelyn Bagby. Preliminary hearing. Are the parties ready?”

  “Ready,” Strawn said.

  “The defendant is ready,” Mason said.

  “Now the Court would like to know generally, in order to understand the evidence, what you have discovered out there at the scene of the crime, Mr. Prosecutor.”

  Strawn said, “In addition to the bullet which was in the house of Mrs. Eunice, and on which we want to question Mr. Redfield, there was another bullet in the oak tree. That bullet also was removed by Mr. Redfield, and we want to question him on that point.”

  “Very well, go ahead,” Judge Kippen said. “Mr. Red-field was on the stand and the question before the Court at the present time is whether the weapon, claimed by the prosecution to be the weapon with which the shooting was done, is to be admitted in evidence. Mr. Redfield, take the stand. You’ve already been sworn and you have qualified as an expert.”

  “Now then,” Strawn said, getting to his feet, “I want to ask you about the oak tree and the bullet—”

  “Now let’s get these straight,” Judge Kippen interrupted. “Let’s call the fatal bullet, Bullet Number One. Let’s call the bullet from the redwood post Bullet Number Two. Let’s call the bullet from the oak tree Bullet Number Three, and the bullet from the house of Mrs. Eunice, Bullet Number Four. Is that satisfactory?”

  “Quite,” Strawn said.

  “Very satisfactory, Your Honor,” Mason said.

  “Very well. Let’s have them so designated. You are now referring to Bullet Number Three, the one that was found in the oak tree, Mr. Redfield.”

  “That’s right.”

  “What did you find there?” Judge Kippen asked, taking the questioning away from the deputy district attorney.

  “Well, Your Honor, I found that there was a bullet embedded in that tree. It had entered on an angle and had chipped off a piece of bark. I found that that bullet had been fired from the revolver in question, the one that it appears the prosecution is seeking to have introduced in evidence. It is marked for identification Exhibit A.”

  “No question about that bullet having been fired from that gun?”

  “No, Your Honor.”

  “Then that would make three bullets fired from that gun, with only two empty shells in it,” the judge said.