The Bigger They Come

by Erle Stanley Gardner

  The sheriff said, ‘By God, I believe you, Lam.’

  The district attorney said, ‘Wait a minute. That would mean the gun was fired twice.’

  ‘Sure, it was fired twice,’ I said.

  ‘What became of the first bullet?’

  ‘How the hell do I know? It’s stuck in something.’

  ‘The gun couldn’t have been fired twice,’ one of the Los Angeles officers said. ‘The magazine holds seven shells. There were six shells in the gun when the boys from Homicide found it.’

  I said, ‘I’m telling the truth. I can prove it. I loaded that gun myself. I put seven shells in the magazine, then I jacked one up into the barrel. Then I took the magazine out again, and put an extra shell in. That made eight shells. You get the box of shells in the bureau drawer of room 620 in the Perkins Hotel, and you’ll find there are eight shells gone from the box.’

  The sheriff said, ‘He’s right. That accounts for that extra empty cartridge they found in the room.’

  The two men from California got up. ‘Well, Donald,’ one of them said, ‘you’re going back with us. Get your things, and we’ll start now.’

  ‘I don’t want to start now,’ I said. ‘And I don’t have to.’

  ‘What do you mean?’

  ‘I’m in Arizona,’ I told him. ‘I don’t like California. It’s too damn hot going across the desert. I’m getting along fine here. I like the jail, and I like the treatment. You give me the dose here and I’ll take it.’

  ‘Surely, Donald, you aren’t going to make us go to the bother of getting extradition, are you?’

  ‘I’m not going to leave here.’

  One of the cops moved forward belligerently. ‘Why, you dirty—‘The sheriff put a hand on his arm. ‘Not here, buddy,’ he said in a slow drawl that packed plenty of authority.

  The district attorney said to the jailor, ‘Take him back to his cell. We’ve got some telephoning to do.’

  ‘I want a paper and a pen,’ I said.

  They exchanged glances, then the sheriff nodded. ‘The jailor will bring them to you.’

  I went back to my cell. It was so cold I could hardly keep my knees from knocking together, but I sat there with chattering teeth and wrote by the dim light of a jail incandescent.

  After an hour they came back for me. The sheriff said, ‘The stenographer has written out the confession you made. We want to read it to you, and if it’s correct, we want you to sign it.’

  ‘Sure,’ I said, ‘I’ll sign it, but here’s something that I want filed.’

  ‘What is it?’ he asked, looking at the scrawled pages.

  ‘That,’ I said, ‘is the application of Donald Lam, also known as Peter B. Smith, for a writ of habeas corpus.’

  The sheriff said, ‘Donald, you must be crazy. You’ve confessed to cold-blooded, deliberate, premeditated murder.’

  ‘Sure,’ I said. ‘I killed a rat. Are you going to file this application for habeas corpus, or do I refuse to sign the confession?’

  ‘I’ll file it,’ he said. ‘I thought you were just a stir-crazy punk. Now I know you’re nuts.’

  Chapter 13

  THE COURTROOM was packed with sweltering humanity. Outside, the sun was melting the pavement in the streets. It was ten o’clock in the morning, but it was already hot. Out in the open air, the heat was dry and easy to bear. Inside the crowded courtroom, the air was soaked with the perspiration of curious spectators.

  Judge Raymond C. Oliphant came in and took his seat on the bench. The bailiff called the court to order. The judge looked down at me with curious but kindly eyes. ‘This is the time heretofore fixed,’ he said, ‘for hearing the application of Donald Lam, also known as Peter B. Smith, for the writ of habeas corpus. Are you ready, Mr. Lam?’

  ‘Yes, your honor.’

  ‘Have you a lawyer to represent you?’

  ‘No.’

  ‘Do you intend to secure one?’

  ‘No.’

  ‘I believe you have some funds, Mr. Lam?’

  ‘Yes, I have.’

  ‘You’re able to hire an attorney if you want one?’

  ‘I am.’

  ‘And you don’t want one?’

  ‘No, your honor.’

  The judge turned to the district attorney.

  ‘Ready for the state,’ the district attorney said.

  ‘You have filed a return to the writ?’ the judge asked.

  ‘We have, your honor. It sets forth that the defendant is being? held in custody by virtue of a warrant for his arrest for first-degree murder issued in the State of California. Extradition proceedings are being taken, and we expect at any moment to have the requisition flown to Phoenix by plane, and have a writ of extradition issued by the governor of Arizona. I believe I am j safe in assuming that this will be done within a matter of :’ hours.’

  ‘And that is the only reason that the defendant is being held?’ Judge Oliphant asked.

  ‘Yes, your honor.’

  ‘There is no doubt as to the identity of the defendant?’

  ‘No, your honor.’

  ‘Very well, put on your evidence.’

  The district attorney called the sheriff. The sheriff related the circumstances of my arrest. He called the court stenographer, and the stenographer read my statement into evidence.

  Judge Oliphant looked down at me rather kindly. ‘I think,’ he said, ‘that this is enough proof. You seem, Mr. Lam, to have confessed to what may or may not be first-degree murder. At any rate, it is homicide. The question of degree, the malice, and the amount of premeditation will have to be determined by the California courts. But it is apparent to this court that you are guilty of either first— or second—degree murder. It is, therefore—’

  Thanks to the activities of the grievance committee, most of my legal experience had consisted of following involved legal doctrines through the intricacies of a law library. My courtroom experience had been very limited, and my knees were rather wobbly as I got to my feet. But I was mad enough to keep my voice from quavering as I interrupted him.

  ‘Is it the custom, your honor, to decide a case before the petitioner has had an opportunity to make any showing?’ I asked.

  He frowned, and said, ‘I was trying to be easy on you. Go ahead and put on your case if you want to. You’ll just give the California authorities more— I think you should have a lawyer, Mr. Lam.’

  ‘I don’t want any lawyer,’ I said, and called the officer who had taken me to Yuma as my first witness.

  ‘What’s your name?’ I asked.

  ‘Claude Flinton.’

  ‘You are an officer of this state?’

  ‘Yes.’

  ‘And you brought me to Yuma?’

  ‘That’s right.’

  ‘From where?’

  ‘From El Centro.’

  ‘Did I leave El Centro voluntarily?’

  He laughed and said, ‘You did not. The sheriff of El Centro and I dragged you out and put you in a car, and it was a hot job.’

  ‘Under what authority?’

  ‘Because I had a writ of extradition and a warrant of arrest on a felony embezzlement charge with a count of obtaining property under false pretenses.’

  ‘What did you do with me?’

  ‘Took you back to Arizona and lodged you here in jail in Yuma.’

  ‘Did I accompany you of my own free will?’

  He grinned and said, ‘You did not.’

  I said, ‘That’s all.’

  The judge asked in icy tones, ‘Have you any more witnesses, Mr. Lam?’

  ‘None, your honor.’

  ‘Very well. I shall now decide the case.’

  ‘Will I have an opportunity to argue it?’

  ‘I fail to see where you can say anything which will affect the ruling of the court.’

  I said, ‘There is plenty to be said, your honor. The State of California wants me back. A few hours ago, the State of California didn’t want me within its borders. The State of Californ
ia turned me over to the State of Arizona against my will and wish. I was dragged into the State of Arizona. There can be no question of that.’

  ‘But what does that have to do with it?’ the judge asked. ‘You have admitted killing a man in California.’

  ‘Certainly, I killed him. He deserved to die. He was a rat and a double-crosser. But that isn’t the question before this court. The question before this court is whether I can be extradited to California. I can’t be extradited to California. The only authority which one state has to take prisoners from another state comes from the organic law which provides that fugitives from justice may be extradited from one sovereign state to another. I am not a fugitive from justice.’

  ‘If you’re not a fugitive from justice, I don’t know what you are,’ Judge Oliphant said.

  ‘I don’t need to argue the matter,’ I retorted, ‘for two reasons. One of them is that your honor’s mind is evidently made up, and the other is that better legal minds than I have already wrestled with the problem. The fact remains, however, that a man is not a fugitive from a state unless he flees from that state. He doesn’t flee from that state unless he does so voluntarily and in order to avoid arrest. I did not flee from California. I was dragged from California. I was taken out under legal process to answer for a crime of which I was innocent. I claimed that I was innocent. I came to Arizona and established my innocence. Any time I get good and ready to go back to California, California can arrest me for murder. Until I get good and ready to go back, I can stay here and no power on earth can make me budge.’

  The judge was looking interested now. ‘When you mention that more learned minds than yours have considered the question, are you, by any chance, referring to some judicial precedent?’

  ‘I am, your honor. The case of In re Whittington, 34C.A.334, is a leading case and absolutely in point. I can also refer you to the case of People vs. Jones, S4C.A.423. The California doctrine has been succinctly expressed in Volume 12 California jurisprudence, page 398, as follows: “Where it appears that the presence of the accused in the state of refuge is not due to any voluntary act of his own, but to legal or illegal compulsion, he is not a fugitive from justice and cannot be extradited as such. Thus where it is shown that his presence in the state of refuge is due to extradition proceedings instituted by that state itself for a previous crime and honored by the state now demanding his return, he cannot be extradited by the latter, both because he did not flee from it, and because, by honoring the first requisition, it waived any right to prosecute him for the offense committed against its laws.” ’

  The judge sat staring at me incredulously. The district attorney got to his feet, and said, ‘Surely, your honor, that cannot be the law. If such were the law, any man could commit murder, with malice aforethought. He could coldly, deliberately, and feloniously kill another human being; then, by taking advantage of a legal loophole, avoid any punishment.’

  Judge Oliphant said slowly, ‘And apparently that is exactly what the petitioner in this case has done. It needs no great imagination to realize that, step by step, he had embarked upon a course of carefully planned murder with diabolical ingenuity. If this is the law, this man has committed the perfect crime, not as it is usually planned, with such subtlety that the clues are completely concealed, but with such ingenuity that he cannot be punished. It is to be noted that the petitioner has memorized the text of that portion of California jurisprudence dealing with the point he is making: It is, therefore, readily apparent that the full possibilities of the situation have been carefully thought out by him well in advance. The entire history of this case indicates that the petitioner is possessed of an astute legal mind which, unfortunately, is not balanced by a corresponding sense of legal ethics. However much the court may deplore the latter, it cannot ignore the consummate brilliance with which this petitioner, frail in his physical appearance, apparently young, innocent and inexperienced, has jockeyed the authorities of two states into such a position that they are apparently powerless to punish him for a cold-blooded, premeditated, and deliberate murder, his part in which he has brazenly admitted. It is an astounding situation. To some extent, the defendant’s moral and legal lapse is atoned by his confession which has enabled the California authorities to arrest the petitioner’s accomplices. However, the fact remains that the petitioner at bar, despite his very apparent youth and inexperience, has the ability to discover, and the ingenuity to carry into execution, a scheme by which he has adroitly outwitted the sovereign authorities of two states. It is a most astounding situation.

  ‘The court will take a thirty-minute recess during which the court will endeavour to consider this matter with a fair and impartial mind. However, the court cannot remain unaware of the seriousness of leaving such a legal loophole in our social and legislative structure. The court will not construe the organic law cited by the petitioner in the light of the petitioner’s contention unless it appears that the State of California has stopped itself from asking for a different construction by a decision which is plain and unequivocal in its language.’

  Judge Oliphant got up and walked gravely into chambers. I sat there waiting in the courtroom. After a few moments, the sheriff said, ‘This way, Donald.’

  He took me into his office. I sat there waiting. The district attorney came in and looked at me as though I was something other than human.

  At the end of half an hour, the sheriff took me back into court. Judge Oliphant came in and took his seat on the bench. His shoulders were sagging. He looked down at the district attorney, and said, ‘The court has no other alternative. The law in this case is exactly as contended by the petitioner. Under this law a man could-and has-committed a cold-blooded murder with complete legal immunity. Posing as a not-too-bright young criminal, he has victimized the law itself. There can be no question in the mind of the court but what the shrewd and unscrupulous intelligence of the petitioner in this case has carefully planned each step in a well-laid campaign. However, there is no legal proof before the court indicating that such is the case. The California decisions cited by the petitioner are absolutely in point. In view of the interpretation which has been placed upon the law by the courts of California, it would be idle to contend for any other interpretation. California has passed upon the matter, and the California courts have precluded themselves from seeking any other interpretation of the law. California cannot extradite this man. The petitioner is discharged from custody, much as the court regrets the necessity of making such a decision.’

  The district attorney said, ‘Your honor, we don’t need to believe his story. We can hold him for further developments. Perhaps he—?

  ‘Apparently you don’t appreciate the diabolical ingenuity of the petitioner’s position,’ Judge Oliphant said. ‘He can’t be extradited from Arizona. He isn’t a fugitive from justice-not from California at any rate. I doubt if there is enough evidence to connect him with this Kansas City crime. If there is, there will be little difficulty in finding the petitioner. He certainly is not going to leave the State of Arizona. Here he enjoys legal immunity. Elsewhere, he would not, and the perspicacity of this petitioner is such that he not only realizes that fact but will take full technical advantage of it. I even doubt if he could be extradited to Kansas City. The petitioner is discharged.’

  A slow murmur grew in volume from the crowd in the courtroom. It was not a hostile murmur. It was a murmur of surprise and of interest. Had an attorney been representing me, I probably would have been lynched. As it was, I had been the underdog, standing alone and unaided at the bar of justice. I had forced the judge to accept my interpretation of the law and had whipped the astounded district attorney to a standstill.

  Someone applauded.

  Someone laughed.

  The judge ordered the courtroom cleared, and then adjourned court.

  Chapter 14

  THE CLERK at the Phoenix Hotel said, ‘Mrs. Cool arrived by airplane from California. She had rather a rough trip and was quite upset
. She left word that under no circumstances was she to be disturbed.’

  I showed him the telegram she’d sent. ‘I’m the one she came to see,’ I said. ‘Here’s her telegram telling me to meet her here at the earliest possible ,moment.’

  The clerk hesitated a moment, then nodded to the telephone operator. ‘You may ring,’ he said.

  A moment later, the operator said, ‘You may go up, Mr. Lam. Room 319.’

  I took the elevator to the third floor, knocked on the door of 319, and Berths Cool said, ‘Come in. God damn it, don’t stand out there making a racket.’

  I turned the knob and opened the door. She was propped up in bed. A wet towel was wrapped around her forehead. There was no make-up on her face. The muscles sagged down, pulling her lips down at the corners, emphasizing her battleship jaw.

  ‘Donald,’ she asked, ‘did you ever ride in an airplane?’

  I nodded.

  ‘Did you get airsick?’

  ‘No.’

  ‘I did,’ she said. ‘My God, I thought that damn plane would never get here. Donald, my love, what the hell have you been doing?’

  ‘Various things,’ I said.

  ‘I’ll say you have! You’ve been giving the agency a lot of publicity.’

  I found myself a chair and dropped into it.

  ‘No, not there, Donald. It hurts to turn my head. Come over here and sit on the foot of the bed-there, that’s better. Donald, are you in love with that girl?’

  ‘Yes.’

  ‘Did you do this because you loved her?’

  ‘Partially,’ I said, ‘and partially because I couldn’t resist the temptation to blow up some of the smug legal theories entertained by a lot of mossback lawyers. The grievance committee said my idea a bombproof murder could be committed was an indication I didn’t have a very good foundation in my legal education. They didn’t bother to find out what the scheme was, but, just because they thought a man couldn’t commit a murder and beat the rap legally, they figured I was wrong in saying he could. I wanted to show ‘em. If they hadn’t suspended me from the bar, I’d have made a name for myself before this.’