STATE
vs. HAUPTMANN
January
8, 1935
[471]
ARTHUR KOEHLER, sworn as a witness
on behalf of the State:
Direct Examination by Mr. Wilentz:
Q.
You live where, Mr. Koehler? A. In Madison, Wisconsin.
Q.
And you are connected with the United States Government in what capacity? A. I
am wood technologist in the forest service, which is part of the U. S.
Department of Agriculture.
Q.
Now on various occasions since this Lindbergh case, have you had—have you
received from Captain Lamb this ladder? A. I have.
Q.
And, by the way, will you tell us what is this cut that has been pointed out on
No. 2, on section marked No. 1 with this little thumb-tack? I notice a cut
there. Did you make that cut? A. I did.
Q.
This piece of what appears to be a new piece of wood, as compared with the
other, did you have that affixed? A. Yes.
Q.
You did, sir. And when you got through with it, did you return it to Captain
Lamb? A. I did.
Mr.
Wilentz: That is all. Any questions?
Mr.
Reilly: May we have him later on?
Mr.
Wilentz: Surely.
Mr.
Pope: Just a minute.
[472]
Cross-Examination by Mr. Pope:
Q.
Where that light portion of wood is fastened to the side of the section of the
ladder, you say you put that on there? A. I helped in putting it on.
Q.
Why did you put it on there? A. That rail was cut in two, and it was put
on to bring them back into their original position.
Q.
Who cut it in two? A. I don’t know.
Q.
Was it cut in two when it was brought to you? A. Not the first time, but subsequently
it was.
Q.
Was it cut in two while it was in your possession? A. No.
Q.
Or in your department? A. No.
Q.
What do you mean when it was brought to you the first time? A. Well, the
first time I examined the ladder, that rail was not cut in two.
Q.
When was that? A. That was the latter part of February, 1933.
Q.
And where? A. At the New Jersey State Police Training School.
Q.
Then you did not see it again until about June 1932 or ‘33? A. Why, I saw
it off and on then for about six weeks, and saw it again the next Fall.
Q.
Well, when was it brought to you with one side cut in two? A. When I came
back here in the Fall of 1932, one of the rails had been cut in two.
Q.
While the ladder was in your possession, did you remove any of the nails? A. Yes.
Q.
And did you remove any of the cleats? A. Yes.
Q.
Did you take the ladders apart? A. Yes.
Q.
And then did you put it together again? A. I helped in putting it
together, I supervised it and did part of the work ourselves, two of us did it.
Q.
Did you use the same or different nails? A. Used the same nails—I had
turned over the nails to someone else and he turned them back to me as the [473]
same nails.
Q.
As the same nails? A. Yes.
Q.
Then you don’t know whether they were the same nails or not, do you? A. I didn’t
follow them through his hands.
Q.
So that you are unable to testify positively that the nails that now appear in
the ladder are the nails that were taken out by you? A. Not from personal
knowledge.
Q.
Now while you were examining the ladder and experimenting with it were any of
the cross rounds broken? A. There was a piece split off several of them
from one corner.
Q.
And was that split off accidentally or intentionally? A. It was that way
when I first saw the ladder.
Q.
Who delivered the ladder to you? A. Captain Lamb.
Q.
Where? A. First time at a State police training school near West Trenton.
Q.
And what did you do with it? A. I examined it carefully, took it apart.
Q.
Then did you turn it back to Captain Lamb? A. Yes.
Q.
And when did you next receive it? A. As I said I—
Mr.
Wilentz: When?
A. Well,
the next period in which I received it was in the fall of 1933. I don’t
remember the exact date, but it was about the first week in November.
Q.
When was that—about the first week in November? A. Yes.
Q.
1933? A. Yes.
Q.
Where did you receive it then? A. At the same place at the training
school.
Q.
From whom? A. From Captain Lamb.
[474]
Q. And did you remove it from that location? A. No.
Q.
Did you ever have it down to Washington? A. I didn’t, no.
Q.
Was it ever there? A. I understand it was.
Q.
Well, don’t you know? A. No, I didn’t see it in Washington.
Mr.
Wilentz: Any other questions? I offer the ladder, if your Honor please; S‑32
for Identification is offered in evidence.
Mr.
Pope: Well, of course, we object to the reception in evidence of this ladder at
this time for the same identical reasons which we offered and placed in the
record when it was first offered by the Attorney General, and for the
additional reason that it now appears from the testimony of this witness that
he took the ladder apart, that the nails were withdrawn, and that they were
handed over to someone else; that after he did his experiment or inspection he
helped put the ladder back together again, and that he used nails that were
handed to him by someone else; that he does not know whether they were the same
nails that came out of the ladder or not.
It
also appears from the testimony of this witness that a saw-cut has been made in
one of the rounds of the ladder, which was made by him. It also appears from
his testimony that between the time he thus sawed this ladder and the time it
was brought to him again, one of the uprights had been sawed in two, so that it
was necessary to attach a small piece of light-colored board to it in order to
hold it together. The ladder, therefore, is not in the same condition, that it
was or in approximately the same [475] condition, and it is not shown to be in
the same condition it was when it was discovered, as is testified here, on the
Lindbergh estate. It has been taken apart, put together again; nails that may
play a very important part in this case have been drawn out of it, and the
gentleman says he does not know whether the same nails were put back together,
or whether they were put back in identically the same holes that they came out
of.
In
addition to that, sir, it appears from this witness’s testimony that the ladder
has been in Washington, that somebody else has had possession of it; that it
has been here, there, and at various places, and its course has not been
traced, nor have we had an opportunity to examine as yet all of the men that
have had the custody and the handling of this ladder between the time it was
found and today when it is being offered into evidence.
And
there is still another reason, and a very great reason, and a very strong
reason.
And
there is still another reason, and a very great reason, a very strong
reason—there is absolutely no connection, either by circumstance or by direct
evidence between this ladder and the accused, and until this ladder has been
placed in the possession of the accused, or until there is some evidence in
this case which would tend to show or which would be sufficient to go to the
jury, to have them consider whether or not the ladder was ever in the
possession of the accused, this ladder is not evidential against this accused.
I
submit that it is well-established law that wherever any, whenever any, where
any article, whenever any article or personal property is desired to be
introduced in evidence as evidence [476] against an accused, there must be some connection
established, be it slight, between the personal property and the accused before
it can be admitted in evidence.
It
may be admitted for identification until that proof is complete, but until
there is something in this case to show that Mr. Hauptmann, the defendant, was
in some way either directly, immediately or remotely connected with this
ladder, it is not evidential and should not be admitted in evidence.
Mr.
Wilentz: Your Honor please, taking the last suggestion of counsel and reason
first, we represent to the Court and to our adversaries that we will connect
this ladder with Mr. Hauptmann, but that is beside the point altogether. We
have already connected it so far as the scene of this crime is concerned and as
being the ladder and it is certainly evidential as to that.
My
understanding of the objection the other day was that the only thing that was
left was the question of connecting up the custody of this ladder and to whose
custody it was in. We have now proven that and counsel has shifted on the
theory that someone said it had been in Washington at one time, and if your
Honor may remember, I will call it to counsel’s attention, that while Trooper
Kelly was on the stand he said that that ladder was in his custody
continuously, that during that time he took it to Washington for tests, but he
was there, locked it in a safe at night and took it out in the morning and then
brought it back and in June he delivered it to Captain Lamb. Now we produce
Captain Lamb and we connect the possession of the ladder with Captain Lamb for
the [477] entire period except for those periods that the Government agent had
it in his custody when he performed on it in such manner as he will testify at
a later time.
Mr.
Wilentz: So that we have proved the custody. Now there is some objection about
the nails. I take it after all that this is not a cross word puzzle, that we
are all supposed to be of average intelligence and if these are not the same
nails, that will develop. May I say to your Honor and to counsel that we
promise your Honor that we will show everything there is to be shown about the
nails too. But this is the ladder that was on that scene according to the man
that was there. We have connected it step by step into the hands of this man
and back to Captain Lamb for three years and we will run it right into
Hauptmann. Now if that is what they want I promise your Honor that it is
certainly evidential.
Mr.
Pope: I do not want to prolong the argument, if your Honor please, but we are
not willing to accept that promise because we do not know what they think or
consider or believe in their own mind to be in the nature of circumstances
which may connect this ladder with the defendant. We are here defending a man
for his life and his every right must be and will be protected by this Court,
and we insist that this ladder shall not be admitted in evidence in this case
as evidence against him until he is shown to have been connected with it in
some way. Now my objection to the ladder goes further than the Attorney General
seems to think it does. Our objection is, of course, that it has not been shown
who had possession of this [478] ladder and what each person did with it every
time it passed from one hand to another. Kelly didn’t say who had it or who
used it or what they did with it in Washington.
We
don’t know what has been done to this ladder until we have the witnesses on the
stand and are permitted to cross examine them and find out what they did with
it. For instance, it was testified here this morning that this ladder was, I
think, examined by the Lochard process by somebody, for the purpose of
developing latent fingerprints on it. We want to know who that man was. We want
him on the stand; we want to find out what he did with that ladder when he had
it. We have a right to know what he did with it. We want somebody to swear what
happened to that ladder when it was in the possession of this man, Dr. Hunter I
think it was, or whatever his name was.
And
so with each and every man who has had this ladder, who has experimented with
it, who has done something to it, who has taken it apart, who has changed this
ladder from the time it was found down to the present day.
Our
objection is also that the ladder is not in the same condition that it was
found, that it has been changed. They have sawn pieces of wood off of it, and
they have sawed it in two, and they have taken it apart, and they have tried to
put it back together again,—and with what nails, we don’t know where the nails
came from or who put them there. It is all very well for the State to say “We
are going to connect up this ladder with the defendant;” but our duty and our
obligation to a man on trial for his life is to see that the ladder is
connected up and brought home to him before it is permitted to go in evidence
in this case, and that [479] is what we appeal to your Honor to help us do.
The
Court: This ladder has already been marked, I think, for identification. I do
not seem to have much doubt in my own mind at the moment that certain parts of
this ladder certainly are now admissible in evidence; the framework of it,
especially such parts of the framework as do not appear to have been
disturbed—I think that they are admissible in evidence. There are certain
phases, changes, admitted changes, that perhaps ought to be or will be further
developed as the case proceeds; and then, too, there is the question of nails.
I do not know what figure nails cut in this case, but counsel seem to have some
ideas upon that subject. Now perhaps that ought to be the subject matter of
some further examination; and for the purpose of allowing those phases of the
matter to develop, following the plan suggested by the Attorney General, that
he defer his motion for the admission of this ladder as the thing now stands,
as a whole, until later, when there has been an opportunity to inquire more
minutely into these changes which have been referred to. So that for the moment
I think that I will defer the admission of this ladder in evidence.
Mr.
Wilentz: All right. Mr. Koehler, will you step down.
STATE
vs. HAUPTMANN
January
23, 1935
[2197]
ARTHUR KOEHLER, sworn as a witness
on behalf of the State.
Direct Examination by Mr. Wilentz:
Q.
Mr. Koehler, will you please tell us where you live and what your business is?
A. I live at Madison, Wisconsin, and I am employed there at the United
States Forest Products Laboratory.
Q.
Do you mean that you are employed by the United States Government? A. I
am.
Q.
And what does the Forest Products Laboratory work consist of? A. The work
of the Forest Products Laboratory consists of making tests and investigations
on wood.
Q.
Tell me whether or not you are the wood [2198] expert of the United States
Government? A. I am the expert on the identification of wood for the
Government.
Q.
Are you in charge of the Department? A. I am.
Q.
With officers in Madison, Wisconsin? A. Yes.
Q.
Now, in that connection, for how many years have you done this work? A. 21
years.
Q.
How many pieces of wood do you examine a year for the Government? A. Each
year there are submitted from 2,000 to 3,000 samples of wood for identification
which I handle.
Q.
In your capacity with the United States Government and in your particular
field, has it become necessary for you to testify in court? A. Yes, I have
at various times testified in court.
Q.
Will you tell us some of the cases you have testified in. A. May I refer
to some notes; I can’t remember the names.
Q.
Yes. A. And dates.
Q.
Pick out the best known. I don’t want to limit you, however. You give whatever
you think is proper. A. In 1923, I testified as an expert witness in the
case of State of Wisconsin vs. one John Magnuson.
Q.
Is that a murder case? A. That is a murder case.
Q.
Yes, sir. A. In 1925, I testified in some hearings before the Federal
Trade Commission vs. The Indiana Quartered Oak Company relative to the proper
names to use for so-called Philippine Mahogany. In 1929, I testified before the
Federal Trade Commission vs. The California White & Sugar Pine
Manufacturers relative to the proper names to use for so-called California
White Pine.
Q.
You mean by proper names the proper [2199] identification and classification of
lumber? A. Well, it is simply a matter of what name to use, what is the
correct name for it.
Q.
Well, do you determine that by knowing the classification and identification of
lumber? A. Yes.
Q.
All right, sir. A. In 1932, I testified in Lake Charles, Louisiana, in the
case of Olivier & Son vs. The Board of Commissioners of the Lake Charles
Harbor and terminal distict relative to the quality of some piling which had
failed shortly after they were driven. In 1933, I testified in Toledo, Ohio, in
the case of Vienhage vs. The Consolidated Pump & Ladder Company. In that
case two painters were injured as a result of the fracture of a rung in a ladder,
and I testified as to the quality of that rung which broke.
Q.
Now, the first case you gave, as long as you have given us an indication of
what the cases are about, what was that, the name of the first one?
A. State of Wisconsin vs. Magnuson.
Q.
Did that involve the make-up of a bomb? A. Yes.
Q.
And particularly did it involve the history of a piece of wood that was a part
of that bomb? A. Yes.
Q.
Did you testify as to the history of that wood in that case? A. I did.
Q.
All right. In addition to your experience in the manner you have just
indicated, have you had experience as a carpenter? A. Why, I have worked
on a number of carpenter jobs. My father was a carpenter by trade, had a large
assortment of tools, and I have worked on the construction and repair of
buildings and on cabinet work.
Q.
All right, sir. Now, in the capacity in which you have been employed, will you
tell me [2200] whether or not you came into the Lindbergh case at the request
of the Government and the State of New Jersey. A. I did.
Q.
And in that connection you have, have you not, inspected and examined this
ladder, S‑211, on many occasions? A. I have.
Q.
I want to call your attention first particularly to what has been referred to
as rail 16—what is it, 16 or 19? A. 16.
Q.
Did you take off this rail 16, a part of Exhibit S‑211, for the purpose of
investigation in the attic of the Hauptmann home? A. I did.
Q.
When did you do that? A. I made that investigation on October 9th, 1933,
the first time.
Q.
Having taken off this section rail 19, what did you find. A. I found that
the nail holes in it corresponded exactly with four nail holes in the joists in
that attic and the grain of the wood in that rail corresponded exactly with the
grain of wood of the board next to it.
Q.
Now, let me ask you, before you get to that—you have also seen this exhibit,
have you not? A. I have.
Q.
And did you see that in the attic? A. Yes.
Q.
Tell me whether or not there is any relationship, in your opinion, between rail
19 and exhibit S—what is the number-226?
Mr.
Pope: I object to the question. I object to the expression “in your opinion” by
the witness.
Mr.
Wilentz: Will you tell me what the number is?
The
Reporter: [226.
Mr.
Wilentz: How is it marked, by ink?
[2201]
The Reporter: No. With lead pencil. It wouldn’t take ink. [226.
Mr.
Wilentz: Will you repeat the question.
The
Court: The witness will not answer until I hear Mr. Pope’s objection.
Mr.
Wilentz: I will withdraw the question.
By
Mr. Wilentz:
Q.
Tell me whether there is or whether there is not a relationship between S‑226,
this piece of lumber here, and Rail 19.
Mr.
Pope: Object to the question. That isn’t any different from the last one. The
only difference is he leaves out the word “opinion,” and the witness cannot say
whether there is any relationship except by expressing his opinion, and we say
that this witness is not qualified to express an opinion regarding wood.
The
Court: Do you say that he is not qualified as an expert on wood?
Mr.
Pope: We say that there is no such animal known among men as an expert on wood;
that it is not a science that has been recognized by the courts; that it is not
in a class with handwriting experts, with fingerprint experts or with ballistic
experts. That has been reduced to a science and is known and recognized by the courts.
The [2202] witness probably may testify as an experienced carpenter or
something like that, but when he attempts to qualify and express opinions as a
wood expert, that is quite different.
The
Court: Well, of course, the term “wood expert” is a broad term. It might very
well be limited so far as this case is concerned. What I am trying to find out
is the basis of your objection. Do you object to his qualifying as an examiner
of wood and to finding out the history of that wood? Do you object to that?
Mr.
Pope: Yes, certainly we do, and that he is not qualified to express an opinion.
For instance a physician examines a patient and he finds certain symptoms, he
expresses an opinion. He is qualified because he represents a science. A
fingerprint expert examines finger prints, he makes measurements and
comparisons. He expresses and opinion because that has been reduced to a
science and has been recognized by the courts, but this is no science, this is
just merely a man who has had a lot of experience in examining trees, who knows
the barks on trees and a few things like that. He may come into court and he
may tell what he did and what he saw, but when it comes to expressing an
opinion as an expert or as a scientist, why that is quite different indeed. We
say that the opinion of the jurors is just as good as his opinion, that they
are just as qualified to judge whether there is any relationship [2203] between
those two pieces of board as this man of experience as he terms himself.
The
Court: I think the witness is qualified as an expert upon the subject matter.
Mr.
Pope: May we cross-examine him on that subject and see?
The
Court: You surely may.
Mr.
Pope: And see what his qualifications are.
The
Court: You surely may.
Mr.
Wilentz: If your Honor please, may I suggest now, of course I have no
objections to cross-examination as to qualifications at this time, but it seems
to me that properly comes before the witness starts his testimony as to the
matters before the Court. Now, we have qualified him and there was no objection
to it. However, I will withdraw. I only want to—
The
Court: I don’t want to stand on form, Mr. Attorney General, and I don’t think
you do.
Mr.
Wilentz: No, sir.
The
Court: You may cross-examine him, Mr. Pope.
Mr.
Wilentz: Before he does, may I ask that the counsel’s observation about there
[2204] being no such animal as a wood expert, be stricken out; I am sure he
didn’t intend it.
Mr.
Pope: I will withdraw it. It is just a homely expression, not meant with any
reflection at all.
The
Court: Now, Mr. Pope, suppose—you want to ask this gentleman some questions to
ascertain whether or not he is an expert?
Mr.
Pope: Yes, sir, I would like to go into it quite thoroughly. May we do that
after recess?
The
Court: Well I suppose—
Mr.
Pope: We couldn’t possibly finish it in five minutes.
The
Court: I suppose you may. The Court will take a recess now until 1:45. The jury
may retire. The people will remain where they are. Do you people that are
rushing for the doors hear what I am saying to you? I tell you to stay where
you are until this jury has retired.
(The
jury retire at 12:27 P. M.)
The
Court: The Court will now take a recess until 1:45.
(Whereupon
at 12:29 P. M. a recess was taken until 1:45 P. M.)
AFTER
RECESS
[2205]
(1:46 p. m.)
(The
jury was polled and all jurors answered present.)
ARTHUR KOEHLER resumed the witness stand:
Direct Examination (continued) by
Mr. Wilentz:
Mr.
Wilentz: Mr. Pope, I will make an effort to qualify Mr. Koehler, if there is
any question about it.
Q.
Mr. Koehler, are you a graduate of any university? A. Yes.
Q.
Will you tell us what university, when you graduated, and the course you
pursued there. A. I graduated from the University of Michigan in 1911,
where I pursued the course in forestry. Later on I took some post-graduate work
at the University of Wisconsin in forest products and received the degree of
Master of Science at the University of Wisconsin in 1928.
Q.
Have you devoted your entire adult life to this work? A. I have.
Q.
Are you the author of any papers on the subject, and books? A. Yes, I have
written a number of government bulletins and a book.
Q.
Have you some of these bulletins and books here? A. I have.
Q.
Will you please get them for us? A. Yes. I have here a number of bulletins,
reprints, a book and a list of publications other than these.
Q.
You are giving to me then a book published by the McGraw, Hill Book Company
entitled “The Properties and Uses of Wood” and this Koehler referred to here is
yourself, is that so? A. Yes.
[2206]
Mr. Wilentz: I offer the book.
Q.
Can you read for us the list of publications of which you are the author so as
to avoid the necessity of presenting all the papers except for the defense?
A. There are a large number here, 52 altogether.
Q.
All right. Tell us all of them. A. “An Improved Method of Infiltrating
Wood with Cel-loidin,” “Our National Forests,” “How Taste of Wood Affects its
Use,” “How the Odor of Wood Affects its Use,” “What Makes Wood Float,” “The
Burning of Wood,” “How a Tree Grows,” “Forest Trees as Sources of Food,” “What
Wood is Made of,” “A Visual Method of Distinguishing Long Leaf Pine,”
“Identification of Oak Woods,” “Woods Older than the Hills,” “Native Woods as a
Passable Substitute for Boxwood,” “Guide Book for the Identification of Woods
used for Ties and Timbers,” “A Plea for a Closer Discrimination in the use of
the words ‘Grain’ and ‘Texture’ with Respect to Wood,” “How to Distinguish
Douglas Fir from Sitka Spruce,” “Information for Inspectors of Air Plane Wood.”
“The Grain of Wood, With Special Reference to Direction of its Fibres.” Also
part of the “Inspection Manual of the Bureau of Aircraft Production.” “American
Substitutes for Boxwood.” “Relation of Moisture Content and Drying Rate of Wood
to the Humidity of the Atmosphere.” “Factors Affecting the Strength of Wooden
Members.” “Selecting Wood for Airplanes.” “How to Tell Birch, Beech and Maple
Apart.” “Shrinking and Swelling of Wood.” “Identification of Mahogany.”
“Defects Found in Lumber.” “Handbook of Box and Crate Construction,” of which I
wrote the part on “Identification.” “Lumber [2207] used in Motor Vehicle
Manufacture.” “Distinguishing Characteristics of Mahogany.” “The Identification
of True Mahogany and Certain So-Called Mahoganies.” “Identification of Pulp
Woods.” “Identification of Douglas Fir Wood.” “What Makes Lumber Sell.”
The
Court: Let me interrupt for a moment. Mr. Pope, do you still want to question
this witness as to his expert qualities?
Mr.
Pope: Just a second, sir. Will you allow us to confer?
The
Court: Sir?
Mr.
Pope: Will you allow us to confer?
The
Court: Yes.
Mr.
Reilly: May we preserve our rights to this extent, and have the Court pass upon
the witness’s qualifications, as to whether the Court thinks he is qualified or
not.
The
Court: Yes. I would say to counsel now that I deem this witness to be qualified
as an expert.
Mr.
Reilly: And then in order to protect the rights of the defendant, may we have
an exception?
The
Court: You may have an exception.
[2208]
(Exception allowed, and the same is signed and sealed accordingly. THOMAS W.
TRENCHARD {L.S.} Judge.)
By
Mr. Wilentz:
Q.
And some other publications that you haven’t mentioned? A. Yes.
Q.
Will you tell us, please, what your duties are at the Forest Products
Laboratory? A. One of my duties is to take charge of the identification of
wood sent to the Federal Government for identification, whether they are sent
to Washington or San Francisco or Madison; if they are sent to a Government
office, they are supposed to be referred to Madison where I have charge of
their indentification.
Q.
Am I to understand then that if there is some dispute with reference to wood
that is sent to the United States Government, whether it is sent to Washington
or some other point, it comes to you for disposition? A. Yes.
Q.
All right, sir, is that the situation with reference to 2,000 or 3,000 samples
you testified to this morning? A. Yes.
Q.
What ordinarily causes the submission to you of these pieces of wood?
A. Why, we receive samples from the public for a great variety of reasons.
There may be a dispute between buyer and seller as to the identity of a car
load of lumber.
Q.
When you say “the identity” I take it you mean whether or not it is one type of
wood. A. Yes.
Q.
Or another. A. Yes.
Q.
One quality of wood or another. A. Yes.
[2209]
Q. What else? A. A manufacturer gets hold of a piece of wood which he likes particularly, but he doesn’t know what kind it is, and he sends it in to the laboratory at Madison to have it identified. Once in a while a piece of wood goes wrong in services, gives trouble, and they want to know what kind of wood it is. That is one of the first requirements. In the case of old surveys it has been customary to mark witness trees and those witness trees have died and even decayed partly, but maybe part of the stump or root is left and they want to know whether that is the same tree as was originally marked as a witness tree.
Q. What else? A. A manufacturer gets hold of a piece of wood which he likes particularly, but he doesn’t know what kind it is, and he sends it in to the laboratory at Madison to have it identified. Once in a while a piece of wood goes wrong in services, gives trouble, and they want to know what kind of wood it is. That is one of the first requirements. In the case of old surveys it has been customary to mark witness trees and those witness trees have died and even decayed partly, but maybe part of the stump or root is left and they want to know whether that is the same tree as was originally marked as a witness tree.
Q.
You mean by that, sir, that in the old surveys where lime proceeds to a tree at
a certain point— A. That the neighboring trees to that point are usually
marked as witness trees to establish the location of that point.
Q.
And you identify the stump or whatever is left of it as the point for the
survey? A. Yes.
Q.
What else? A. Well, occasionally law suits arise as to where the identity
of wood comes in or the quality of wood and such questions are referred to me
to pass upon.
Q.
Do your duties also include the identification of wood in connection with
crimes committed? A. Yes.
Q.
All right, sir. Now, let me ask you again, sir,—I show you State’s Exhibit S‑226
and I show you rail 16 of State’s Exhibit S‑211, and I ask you what, if any, is
the relationship between that rail and the exhibit just referred to. A. As
a result of a careful study of the two, I have come to the conclusion that
those two pieces at one time were one piece. They have been cut in two.
Q.
Now, will you please come down here and show the jury just about where it is
your opinion they were cut. Take all the time you want to, [2210] Mr. Koehler,
that is necessary. A. Hold that up there, please.
Q.
Is this the right end? A. Yes. These two pieces of wood at one time were
one piece. A little gap has been cut out. That was about their relative
position in the original piece (illustrating).
Q.
Why do you say that they are the same piece, they were originally the same
piece, and have been separated? A. Well, there are a number of points of
similarity between the two that make me believe that they were one, were one
piece.
Q.
Just take the stand for a minute now. (The witness resumed the stand.) Can you
better show them with some photographs taken by yourself? A. Yes.
Q.
Have you got one here? A. (A large photograph is exhibited on the easel.)
To begin with, this photograph—
Q.
That is, referring to S‑228? A. I personally took this rail, 16, from this
ladder, which is the left-hand rail of the top section, and inserted cut nails
into the nail holes that are in this rail.
Q.
Will you show the jury the nail holes in that section of the ladder, Section
16? A. I will put the nails in them; then they can see them better.
Mr.
Pope: Just a moment. I understand nobody yet has testified that these were the
nails that were originally in those holes, and unless there is some proof that
they are the nails that were originally in those holes we object to it.
Mr.
Wilentz: I have no—if counsel objects to it we will do without the nails then.
[2211]
By Mr. Wilentz:
Q.
Show the jury the section of the ladder where the nail holes are, without using
the nails, if there is some objection to it. A. This rail here, you can
see one nail hole there (indicating).
Q.
Indicating one nail hole near the first rung of the ladder, as you are holding
it up: is that it? A. Yes, sir; near the top rung, yes. Another one there,
and two of them over here.
Q.
You are indicating four nail holes then: is that it? A. Yes.
Q.
On rail known as Rail 16? A. Yes.
Q.
All right. Now, what about them? A. I took—those are cut nail holes—I took
some cut nails, the cut nails which were removed from this board in the attic
that has already been referred to.
Q.
That is S‑226? A. Yes; yes, and placed them into the nail holes in this
rail, and those nails fit perfectly.
Q.
Let me understand. You mean you took nails out of a part of the floor—
A. Yes.
Q.
—which is here in evidence, S‑226— A. Yes.
Q.
—those very nails— A. Yes.
Q.
—and you then put them into those holes in this rail here, known as 16?
A. Yes.
Q.
Tell us about that then. A. Well, they fit in there perfectly. Then with
those nails in those holes and projecting from the lower side, I took that rail
and laid it over the joist in this portion of the picture shown in this Exhibit
S‑215.
Q.
Let me ask you something: when you say “joists” do you mean those—
Mr.
Pope: Joists.
[2212]
Mr. Wilentz: I take it he means joists.
Q.
What are these parts as distinguished from the flooring? A. Joists.
Q.
When you say laid them on the joists, you mean just as they were there as a
part of the floor? A. Yes.
Q.
Go ahead. A. There were nail holes in these joists along the south side of
the floor and the west half of the floor and I found that these protruding
nails stuck into this rail fit exactly in the four nail holes which were in
those joists. Now that indicated to me without any doubt—
Mr.
Pope: I object to what is indicated to the gentleman. He may testify as to what
he found, what he saw, and the jury will determine what it indicated.
The
Court: He may testify as to his opinion, he may be asked as to his opinion.
By
Mr. Wilentz:
Q.
All right. Tell us what your opinion is?
Mr.
Pope: May we have an exception?
The
Court: Take your exception, yes.
Mr.
Pope: Thank you.
(Exception
allowed, and the same is signed and sealed accordingly. THOMAS W. TRENCHARD
{L.S.} Judge.)
[2213]
A. In my opinion that rail had at one time been nailed down there on those
joists, because it would be inconceivable to think—
Mr.
Pope: That is argumentative. We object to it.
The
Court: Well—
By
Mr. Wilentz:
Q.
Well, what is your reason for the opinion? Give us your reason for the opinion.
The
Court: He has a right to.
Q.
All right, let’s have it. A. There are four nail holes a certain distance
apart and a certain direction from each other and in my opinion it wouldn’t be
possible that there would have been another board somewhere with cut nail holes
in them, spaced exactly like these nail holes are in the joists, the same
distance apart, the same direction from each other.
Q.
Now, let me ask you, Mr. Koehler, the distance between the nail holes on rail
16, between hole No. 1, as you have indicated it, and hole No. 2, is it the
same distance between 1 and 2, and 2 and 3, and 3 and 4, or are they different
distances? A. They are different.
Q.
Are they in different directions? A. Yes.
Q.
That is, as my finger goes from No. 1 to 2, across there? A. Yes.
Q.
And then down here to No. 3, and across to No. 4, as you call it? A. Yes.
Q.
And is that the same way that the holes were in the joist that you have talked
about? A. Exactly.
[2214]
Q. Did it require any manipulation at all, or did they fit perfectly? A. They fit perfectly.
Q. Did it require any manipulation at all, or did they fit perfectly? A. They fit perfectly.
Q.
All right, now— A. Not only as to the direction and spacing, but slant.
One of these nail holes in here particularly is slanting, and the nail hole in
the joist had the same slant.
Q.
Now, is that the only reason that you determine and you give as your opinion
the fact that rail 16 and S‑226 were at one time the same piece of lumber,
before it was separated? A. No.
Q.
What other reason? A. Because these nails were inserted in the joist, with
that rail, the edge was perfectly parallel to the adjoining board. Now, if that
had been an accident, that those four nail holes were the same distance apart
and the same direction, it would not be expected that that board would
necessarily be parallel to the boards in that floor.
Q.
How do you explain the fact that when you put S‑226-- No, when you put rail No.
16 on the joist, as you have indicated, while S‑226 was still a part of that
floor, before it was removed, how do you explain the fact that there is a
little distance, one witness said a half an inch, between the two? A. That
piece had been cut off—
Mr.
Pope: Now, I object to that.
Q.
What is your opinion?
Mr.
Pope: He can’t tell whether that has been cut off or not.
The
Court: He may tell if he knows.
Mr.
Pope: If he knows, yes.
The
Court: Let him ask him if he knows.
[2215]
A. In matching up the grain between those—
Q.
Was it cut off? A. Yes.
Q.
All right. Now, tell us why you say so—This photographic reproduction, is it a
correct photographic reproduction of one part of S‑226, that is, this piece
here’? A. Yes, that is one end of it.
Q.
And is this piece opposite it with some space between, is that a correct
photographic reproduction of section, of rail 16 of the ladder? A. Yes, it
is this end.
Q.
Yes, sir. A. Where you can see the running recess corresponding with that
one there and that nail hole right there.
Q.
That is one of them and does this picture correctly portray the position of
those pieces as they were upon that floor when you made your test? A. Yes.
Q.
Distances and all? A. Yes.
Q.
Are these the very same pieces of wood? A. Yes.
Q.
And are the other pieces that adjoin them there on that floor a part of that
attic and adjoined in that very same manner? A. They were.
Q.
Therefore, does this correctly portray that part of the attic where the two
boards that I just referred to were placed and where the others were there
before you got there? A. Yes.
Q.
Will that better help explain your reasons and opinion? A. Yes.
Mr.
Wilentz: I offer it in evidence.
Mr.
Pope: Just a moment. I may not have any objection to it. May I ask a question
or two?
[2216]
The Court: Certainly.
By
Mr. Pope:
Q.
Referring to the board shown at the top of the portrait and to the left, I see
some lead pencil marks on there. Were they on there at the time you took the
photograph? A. Yes.
Q.
And had that board been removed from the flooring before you took the
photograph? A. Yes.
Q.
And then put back? A. Yes.
Q.
So that before you took the photograph and before you arranged these two boards
with the opening between, this particular board to the top and to the left had
been removed from the floor? A. Yes.
Q.
And put back? A. Yes.
Q.
And this one to the right which you have referred to as one of the rails of the
ladder had been removed from the ladder when it was disassembled? A. Yes,
and taken to this house in the Bronx and put down on the floor.
Mr.
Pope: We object to the photograph.
By
Mr. Wilentz:
Q.
Just one other. The name that you see on there is a correct reproduction of the
name as it is on there, isn’t it? A. Yes.
Mr.
Pope: That isn’t the point I am making.
Q.
And the nail taken off the ladder, Mr. Pope refers to, I think he said in
assembling—did you take that rail off yourself, off the ladder? A. I did.
[2217]
Mr. Pope: I object to the photograph, not because of the pencil markings on it,
your Honor. I object to the photograph because it does not depict a true,
natural condition. It depicts a condition that was made up, may I say,
maneuvered, or experimentally, or whatever phrase you want to attach to it. It
was a condition that was really made up by this witness and others and then,
having been made up, it was photographed. It does not attempt to pretend to
depict a natural condition which he saw there when he went to the house. Before
he could take the photograph he had to place these boards in the position in
which they are.
The
Court: Does the photograph purport to be a correct picture of certain boards
and flooring and the like? I haven’t seen it.
Mr.
Pope: After they have been placed in a position which the witness wanted to
place them in, yes.
The
Court: Yes. And his placing of them in that position has been explained, has it
not, and you have cross-examined him on that.
Mr.
Pope: Yes, sir.
The
Court: Well, now, the fundamental question would seem to be as to whether or
no, for the purpose of exhibiting these boards and flooring and the like, this
picture, which the witness says is a correct [2218] picture of that flooring
and boarding and the like—boards and flooring and the like—whether or no that
is incompetent evidence.
Mr.
Pope: No, I think not, because, first, we have the flooring here,—the flooring
itself; second, we have the—I think they call it the rails, of the ladder here.
This is a part of the ladder. The jury can certainly take the two and they can
make any comparison with the two original objects themselves that they wish to
make in the jury room.
Our
objection to this photograph is, and we distinguish, if your Honor please,
between a photograph of a natural condition, which of course is always
admissible evidence, if it is testified that it truly represents the condition
as the witness found it or as it existed at the time.
And
a photograph of a maneuvered or a manipulated condition, which has been
manufactured, so to speak by a witness for showing certain things which he
wants to show. One is a natural photograph of a natural condition and one is a
photograph of an unnatural condition. The latter, we think, is not admissible
in evidence.
The
Court: The photographs are not admissible in evidence, you think?
Mr.
Pope: Yes, sir; for that reason.
The
Court: Has it been marked for identification?
[2219]
Mr. Wilentz: No, if your Honor please. We want to not only mark it for
identification but we propose to use it now if it is admissible.
By
Mr. Wilentz:
Q.
Who took the picture’? May I just interrupt a minute? Did you take that
picture? A. I didn’t take the picture. I was present when it was taken.
Q.
Did you supervise its being taken? A. Yes.
Q.
Is it a picture of the same scene that is shown by Exhibit S‑228? A. Yes.
Q.
With the same boards in there, exactly as that is shown there? A. Exactly.
Q.
Does it, except that it magnifies the few pieces of lumber that are there—
A. Yes.
Q.
Is it exactly the same as you see it on S‑228? A. Exactly.
Q.
Except that it shows the distance between the rails and those other things in
greater proportion, is that so? A. Yes.
Q.
For the purpose of clarity? A. Yes.
The
Court: Now you offer it, do you, Mr. Attorney General?
Mr.
Wilentz: Yes, sir, if your Honor please, we offer it in evidence.
The
Court: It may be admitted.
Mr.
Pope: May we have an exception?
The
Court: Take your exception.
[2220]
(Exception allowed, and the same is signed and sealed accordingly. THOMAS W. TRENCHARD
{L.S.} Judge.)
The
Reporter: S‑229.
(Large
photograph received in evidence and marked State’s Exhibit S‑229.)
Mr.
Wilentz: S‑229.
The
Reporter: S‑229.
Q.
Now, I think—will you explain to us further now as you see it there, why you
have stated that the two upper boards representing S‑226 to my left and the
latter rail referred to in here as rail 16, were at one time together in one
board?
Mr.
Pope: Well, I object to that because manifestly that is a matter of speculation
and a pure guess on the part of the witness. It can’t be otherwise. I don’t
know that his guess is any better than the guess of the jury.
The
Court: What is the question? (The pending question was repeated.)
The
Court: He may answer the question.
Mr.
Pope: May we have an exception. The Court: Take your exception.
[2221]
(Exception allowed, and the same is signed and sealed accordingly. THOMAS W.
TRENCHARD {L.S.} Judge.)
Q.
Answer the question, please. A. For one thing, this picture shows it to be
found in the attic, that a sawcut had been made at the end of this board.
Q.
Will you indicate where the mark of the saw on the board is. A. Yes; in
the adjoining board is a little cut right in line with the end of this board.
Q.
Have you a photograph that will show that cut later on in better proportion?
A. No.
Q.
All right. Proceed. A. Furthermore, there was sawdust on the lath and
plaster of the ceiling below, right underneath the end of this board.
Furthermore, this board projects over the joist. Now, a carpenter wouldn’t let
the end of a board lap over like that and hang free, he would put the joint
right on the joists there, which also indicates that that was not the original
condition.
Furthermore,
by matching up the grain in this board in the floor and this rail from the
ladder—
Q.
Ladder rail? A. —I find that the grain matches practically perfectly,
considering the gap that is between the two.
Q.
Have you got a picture here which shows the grain and what you call the
matching of the grain? A. Yes.
Q.
Is this the one (enlarged photograph)? A. Yes.
Mr.
Wilentz: Will you please mark this for identification, telling me the number?
[2222]
(Photograph marked State’s Exhibit S‑230 for Identification.)
Q.
S‑230. I want you to look at Exhibit S‑230 for Identification and I ask you
whether or not this correctly shows the grain of the ladder rail No. 16, and
the board from the attic floor referred to as S‑226. A. It does.
Q.
That is the two lower pieces? A. Yes, sir.
Q. What does this indicate? A. Other pieces of lumber for comparison.
Q. What does this indicate? A. Other pieces of lumber for comparison.
Q.
Not connected with the ladder or the ladder rail? A. No.
Q.
But for the purpose of comparison with the grain of the ladder rail and the
floor? A. Yes.
Q.
Is it necessary to have these comparisons in order to intelligently explain the
connection between the ladder rail and the board from the attic floor?
A. It is in my opinion.
Q.
Will it serve you best to have it that way? A. Yes, it would.
Mr.
Wilentz: We offer that as S‑230 in evidence.
Mr.
Pope: We have no objection to the General using any photograph which he says
will help him show the identity of the grain in the end of the ladder rail and
in the end of the board taken from the attic floor, but we do most strenuously
object to his showing photographs of other pieces of lumber entirely
unconnected with this case, which were not taken from this attic, which were
not taken from the ladder and which had no connection whatever, either with the
house or the ladder or the kidnapping or anything else, and introducing some-
[2223] thing entirely foreign to this case, in this case, even though it is
only done for the sake of comparison; because we submit that there can be no
such thing as a comparison of a piece of lumber that was taken from that attic
floor or from that ladder, with a piece of lumber that was found out in
Michigan or some other place in the United States until it is identified as a
part of the same board.
The
Court: What do you say about that?
Mr.
Wilentz: If your Honor please, the purpose of this exhibit has already been
indicated and I think nearly every exhibit has some identity because of a
comparison —a man is shorter than another man, or he is taller, or he is
heavier or he is lighter; a shoe is larger or it is smaller, it is wider or
otherwise; one piece of wood is darker or lighter—and everything, it seems to
me, is identified only because there may be a comparison.
Now,
it is not very essential, we probably can make this exhibit without it, but it
occurs to me, if your Honor please, that after all we are not limited in a
court of law, which is after all a court of justice, by being limited to one
piece of wood, if bringing another piece for comparison will help.
It
cannot at all prejudice the defendant or defense counsel. As a matter of fact,
it will help them. Now if your Honor should conclude that this is more helpful
as we very respectfully submit to you, since it [2224] is explained it has no
other purpose except for comparison, so that this witness may be able to tell
the real significance of the grains in the ladder rail and the attic floor,
just as the handwriting expert can come down and say “This is the ‘e’ on the
note and this is a different ‘e’ “ for comparison —since it can only serve a
helpful and useful purpose, if your Honor please, we submit it is admissible.
The
Court: Well, my present impression is that the photograph might well be marked
for identification. It may be that in your examination of the witness you will
show conditions which will render it evidence; that a piece of wood, let us
say, was grown in California, might be helpful in determining the question of
the identity of certain woods that are factors in this case. I do not know
where that will lead you to, but for the moment I do not see that I ought to
admit the entire photograph. It will be marked for identification and you may
proceed with your examination.
Mr.
Wilentz: Yes, sir.
The
Court: And then we can determine later as to what we will do about it.
(Photograph
referred to was previously marked S‑230 for Identification.)
Mr.
Wilentz: Counsel thanks the Court for the suggestion.
By
Mr. Wilentz:
[2225]
Q. Now, have you the two bottom pieces to which counsel says he has no
objection, separate from this photograph? A. Yes, I have a separate
photograph.
Q.
Now we will take down S‑230 for the moment and will you get those two pieces?
Mr.
Wilentz: Excuse me. Will you mark this S‑231 for Identification, is that it?
The
Reporter: Yes, it is.
Mr.
Pope: Mark it in evidence.
Mr.
Wilentz: We offer it in evidence and if there is no objection, will you permit
it?
(Photograph
received in evidence and marked State’s Exhibit S‑231.)
Mr.
Pope: That is a photograph, as we understand it, of two ends?
Mr.
Wilentz: We will explain it in a moment.
Q.
S‑231 is a photograph of the grain of the ladder and of the two pieces that we
have been talking about, is that so, A. Yes.
Q.
Tell us the relationship between the two. A. That lower picture is a
photograph of this end of the floor board and you can see this big streak that
is on the board on the picture, and you can see, I think, that the grain curves
with the convex side up. And we have the same thing there.
[2226]
Q. Let me ask you just before you proceed, Mr. Koehler, that picture—
Mr.
Pope: May I, just a moment, may I place on the record, sir, “there” doesn’t
mean anything. May we place on the record exactly what that means, the convex
referring to the bottom picture on the board.
Q.
The bottom of the board?
Mr.
Pope: Yes.
Q.
As the jury looks at the board from the attic floor, which is indicated by
those words on there, they are looking at this part of S‑226, are they not?
A. Yes.
Q.
In exactly the same position as I am indicating to the jury now? A. Yes.
Q.
And that is—what do you call this? A. The pitch streak.
Q.
A pitched streak? A. Yes.
Q.
And the pitched streak you refer to as indicated on S‑226 right at the bottom
where I have my finger, is that so? A. Yes.
Q.
That is connected with a—what do you call that, a knot? A. That is a knot.
Q.
So that the pitched streak, since the knot does not show, leads from the knot
on S‑226 to this portion of the board from the attic floor. A. Yes.
Q.
All right. Now, you started to tell us about the grain and the convex what?
A. The convex side of the annual rings is up here.
Q.
All right. Now proceed with your description. A. In order to get a picture
of the two [2227] adjoining ends it was necessary to tip the rail back and
over.
Q.
Which rail? A. Rail 16.
Q.
The ladder rail A. Yes.
Q.
Just refer to it as the ladder rail. A. The ladder rail, to turn it back
over on top of the floor board so that they could take a picture of the two at
the same time, and that accounts for the fact that the rings seem to curve in
the other direction in this ladder rail, but that is just because it has been
turned over on its back.
Q.
Yes, sir. A. Now, I want to point out the similarity between those two
photographs, that is the photograph of the ladder rail, the end of the ladder
rail, and the end of the floor board. You will notice that in general, these
curved lines here, those are the annual rings.
Q.
Annual, do you call them? A. Annual rings,—a tree each year produces a
layer of wood under the bark and those are known as the annual rings, and it is
by means of those rings that the rate of growth and the age of the tree can be
determined, and that is, naturally they have to be curved because they go
around the tree. There are the same number of annual rings in the floor board,
counting it across it the most direct manner, as there are in the rail.
Q.
Does that indicate that the two boards are of the same age? A. That
indicates that it took the same number of years to produce that much growth.
Furthermore than that, the variation in the width of the rings is the same. You
will notice that there are three narrow rings right from in here where I point
with my pencil—I will mark them (Witness marks exhibit) and toward the lower
side, the next two are heavier and on the upper side the next two are heavier.
Now, in this other picture of the end of the rail [2228] we also have three
narrow annual rings following each other and the next two rings on the convex
side in the bottom in this case, and is in the top on the floor board are
wider. And the two rings on the other side or concave side of the narrow ones are
wider again, just as we have in this floor board. There is one apparent
inconsistency. In this portion of the floor board to the right the wings are
wider and distorted than they are in this piece, this end of the ladder rail;
but that is due to a knot.
Q.
Just wait a minute now. That knot isn’t in evidence. Is that best shown on the
next—
Mr.
Wilentz: S‑231, we will say, for Identification?
The
Reporter: It is in evidence.
Mr.
Wilentz: I know, but I am offering another one. What number will you give it?
The
Reporter: S‑232 for Identification.
Q.
Can you show it on S‑232 for Identification? A. Yes. This is the knot
right here, at that end of the floor boards.
(Photograph
marked State Exhibit S‑232 for Identification.)
Q.
And that is the knot you are talking about? A. Yes, sir.
Q.
Proceed from there, please. A. Knots distort the grain and the closer you
get to the knot, the more the grain is distorted, hence the grain [2229] is
greatly distorted in this corner of the floor board. You will notice, however, that
the annual rings on this corresponding corner of the rail are also wider,
showing that there was some factor influencing their growth right there. Now
that in my opinion is the influence of this knot extended over into the end of
the rail, but the grain is not distorted so much in the rail, because it was
farther away from the knot there.
By
Mr. Wilentz:
Q.
Now, will you show us how the grain joins there, how in your opinion that grain
was joined: have you got an exhibit for that purpose? A. I will use this
right here.
Mr.
Wilentz: Counsel consents to S‑232 for Identification being in evidence.
(Photograph
of knot in board, heretofore marked State Exhibit S‑232 for Identification, now
received in evidence and marked State Exhibit S‑232.)
A. (continued.)
I can make this a little clearer if you want me to.
Q.
I want you to. Please don’t let me hurry you. If I miss something I want you to
tell me about it. A. To bring out more clearly the similarity between these
growth rings in the rail and in the floor board I will take another photograph,
which is a duplicate of that, made of the same negative and to the same scale
and show you that that can be matched up with this one perfectly.
Mr.
Wilentz: We offer it. You say it is—
[2230]
Mr. Pope: No different?
The
Witness: No different. Made of the same negative and the same scale.
By
Mr. Wilentz:
Q.
Why do you need two? A. I want to superimpose part of one over the other.
Q.
What is the difference between S‑231 and what I am offering now? A. The
same thing.
Q.
Well, one seems to be a little larger. I mean— Are they the same? Oh, they are
the same thing.
Mr.
Wilentz: Well then, we offer it, it being the same as S‑231.
(Photograph
of board received in evidence and marked State Exhibit S‑233.)
The
Court: There being no objection, it is admitted in evidence.
Mr.
Pope: No; none.
By
Mr. Wilentz:
Q.
Now, Mr. Koehler, will you explain the purpose of this last exhibit.
Mr.
Pope: You are not going to destroy the exhibit, are you, by cutting it?
The
Witness: I have to do that for this purpose—
Q.
When you start operating on this you must [2231] tell us what it is all about.
You are cutting off no part of the ladder, are you, or no part of the wood?
A. Yes. I want to cut off a piece of this picture and superimpose it on
that.
Q.
All right. Now, in order to make this explanation, is it necessary for you to
cut Exhibit S‑233, of which we have S‑231, an identical copy? A. There is—
Mr.
Wilentz: Is there any objection?
Mr.
Pope: Let him go ahead until I see what he is going to do. Then if I want to
object, I will do so.
(Witness
proceeds to demonstrate by cutting exhibit.)
A. I
will take this picture of the end of the rail and cut it through the middle.
Now I will take a portion of this picture and superimpose it upon the floor
board.
Q.
Take your time. What do you want? A. Thumbtacks.
Court
Crier Hann: Here are some.
A. Now
by taking these three narrow rings on this picture of the rail, and
superimposing them over the three narrow rings of the picture of the floor
board, you will see there is a practically perfect match.
Mr.
Wilentz: Can your Honor see this?
The
Court: Yes, I see it.
Mr.
Wilentz: All right, sir.
[2232]
A. (continuing.) Now that to my mind in itself proves conclusively that
these two pieces of wood were at one time one piece, on account of the
practically perfect match you can get between the two.
Q.
Will you just come over here a little bit please? Right there, I think, will be
all right. Now will you follow the grain from the board from the attic floor on
S‑231, and show us what you consider to be the perfect match as the grain
proceeds into S‑233, the one being the board from the attic floor, the other
being the board from the ladder rail; follow it with a pointer for the jury.
A. Here are the three narrow annual rings in the floor board that I
referred to. These are the corresponding annual rings that I have marked over
here. (Indicating.) Now you can see how not only the curvature but the width of
the rings follow right through from one to the other. You can see how these two
wider rings below these three narrow ones are also found in the ladder rail.
Q.
How do you explain the difference in color? There seems to be a difference in
the color. A. This ladder rail had been processed for finger prints and
some of the liquid ran into the end grain of the wood.
Mr.
Pope: Do you know that?
The
Witness: I saw the material on it, that is the silver nitrate stained on it.
By
Mr. Wilentz:
Q.
Just a minute. Do you know the effect of silver nitrate upon wood, this type of
wood? A. Yes.
[2233]
Q. Does it discolor it somewhat? A. Yes.
Q. Does it discolor it somewhat? A. Yes.
Q.
To a darker hue or lighter hue? A. Darker.
Q.
Would that explain the difference between the two? A. Yes.
Q.
All right. Have you completed your comparison of the grain, the following of
the grain of one into the other or do you want to proceed further? A. I
now will show you how that same grain connects up on the top surface of these
two boards. As I said before, there was a piece missing between the two, about
an inch and a quarter wide, but I can connect up the corresponding grain.
Mr.
Pope: I object to this unless the gentleman saw the missing piece that was
about an inch and a quarter wide or can account for it. I object to his
testifying that there is any matching of the grain between these two boards. It
seems quite obvious that you could take almost any piece of North Carolina pine
showing that general grain and draw them far enough apart and together and
manipulate them so you might get a comparative continuity of grain. It is that
missing piece, sir, that we object to.
The
Court: Well, perhaps the witness is going to testify about that. I don’t know
what he is going to testify to.
Mr.
Pope: Then I think he should testify to that first.
By
Mr. Wilentz:
Q.
Tell us how you connect those two pieces, [2234] how you explain— I withdraw
that. You have testified that in your opinion that was, at one time, one and
the same piece of lumber. A. Yes.
Q.
Now, you indicate to us just about the relative positions with a piece missing.
A. Yes.
Q.
Can you explain to us how those pieces were connected? Do these boards indicate
it to you?
Mr.
Pope: Well, I object to that.
Q.
Does your experience tell you how they were connected? A. Yes.
Mr.
Pope: I object to any expression of opinion as to whether or not these two
boards were at one time a part of one board, unless the gentleman will tell us
what he knows about the missing piece an inch and a quarter wide.
Mr.
Wilentz: Well, we will, if you will let us.
Mr.
Pope: Let him tell us.
Q.
Do you know how they were connected? A. Yes.
Q.
All right, tell us. A. That is obvious.
Mr.
Pope: No, first off, I want to know about the missing piece, your Honor.
Mr.
Wilentz: Oh, now, just a minute.
The
Court: He is telling you that they were connected originally and I suppose he
is probably going to be interrogated as to [2235] the sort of missing link
there is between the two boards.
Q.
Do you know how they were connected, A. Yes.
Q.
All right; tell us.
Mr.
Pope: May I ask him just one question,
The
Court: Yes, you may ask him.
By
Mr. Pope:
Q.
Did you ever see the missing piece that is unaccounted for?
Mr.
Wilentz: Well, of course—
A. No.
Q.
You never saw it? A. No.
Mr.
Pope: Then I object to it.
The
Court: My suggestion is that the witness may be interrogated as to whether or
no he knows that there was a missing link there originally.
By
Mr. Wilentz:
Q.
From your experience, from your investigation and examination of these pieces
of lumber, what have you to say as to whether or not there isn’t a piece
missing that originally connected the two pieces?
[2236]
Mr. Pope: I object to the form of the question. It is not from his experience
or from his investigation. It is from his knowledge.
Mr.
Wilentz: Well, does he gain by knowledge from that? That is the question.
Mr.
Pope: Well, he can’t gain the knowledge from that.
Mr.
Wilentz: I disagree with you.
The
Court: I will overrule the objection.
Mr.
Pope: Exception.
The
Court: Take your exception.
(Exception
allowed and same is signed and sealed accordingly. THOMAS W. TRENCHARD {L.S.}
Judge.)
Q. Will you answer the question. A. Yes.
Q.
All right. Now tell us about it, please, just how they were connected then,
since you say you know it. A. These three narrow annual rings in the two
end views of these two boards—
Q.
Referring to S‑231 and S‑233. A. Yes.
Q.
Go ahead. A. In my mind are a means of showing which rings were originally
connected, because there is a series of three narrow rings in both of them.
Q.
Yes. A. Now, those rings do not run out [2237] to the surface. Therefore,
I cannot connect them up on the surface. So I will count out from there to the
fifth ring beyond. It is one, two, three, four, five. That one runs out to the
surface. And I will do the same on the other ones; I will do that on this one;
one, two, three, four, five. That is the one there.
Q.
When you are talking about the surface you are talking about that portion of
the lumber—A. Yes.
Q.
—which is shown on S‑232? A. Yes.
Q.
Aren’t you? A. The broad surface.
Q.
Yes, sir.
Mr.
Pope: The face.
Mr.
Wilentz: The face, that is right.
A. Now,
I will mark those same rings on here. This ring right here is the fifth one out
from this rail.
Q.
On this one here? A. Yes.
Q.
That is the fifth ring then on S‑233? A. That is the fifth one.
Q.
Yes, sir. A. And on this board, this ring right here is the fifth one out
from those three narrow ones.
Q.
You are showing now on the added board, S‑226, the fifth—shown on 231—the fifth
of that shown on 231, is that it? A. Yes.
Q.
All right. A. I will connect those up. Now they are the corresponding
rings. Now that same ring goes around here on the other side, over here, and on
the floor board, that fifth ring out is over there. I connect them up. Now I
connect up the rest of the rings because they must follow. This ring makes no
connection over here. It just [2238] makes a loop there. And the others have to
follow in sequence. Now that in my opinion shows a perfectly logical
connection, looks perfectly natural. There is nothing inconsistent about that
between those two boards.
Q.
I notice that the ladder rail is not as wide as the attic boards. Will you
explain that, if you can tell from an examination of the two? A. In
examining this ladder rail I noticed that both edges were planed with a hand
plane. The plane was not in very good condition and left little ridges, and
also these ridges were wabbly over the end, showing that both edges were planed
with a hand plane.
Q.
I want to show you an exhibit in this case, S‑177. Can you tell whether or not
S‑177 is the plane that was used in planing the ladder rail? A. It was.
Q.
Is there any question in your mind about it? A. Not the least.
Q.
Now, let me ask you this: why do you say it, will you explain it.
A. Because on the ladder rail there are a number of ridges of different
size and when I plane a piece of wood with that plane it makes similar ridges
of the same size and same spacing apart as is found on the ladder rail.
Q.
Would any other plane in your opinion make those ridges and marks? A. No,
that would be out of the question.
Mr.
Pope: Without— Well, I submit, —well, he has answered it.
Q.
Why, will you take a piece of wood—have you got an extra piece of wood here not
connected with this case at all? A. Yes.
Q.
And take this plane, plane that piece of [2239] wood and show this jury the
marks that it shows on that piece. A. Yes.
Q.
And then show them the marks that you say correspond with the piece of the
ladder. A. Yes, sir, I also have photographs of those marks.
Mr.
Pope: Well, I object to the question. sir, and object to the demonstration,
because there is no evidence in this case that the bit of that plane has not
been used since it was found in the Hauptmann house and that the bit is in the
same condition that it was when it was taken from the house, it has been here,
there, and everywhere in the meantime.
Mr.
Wilentz: Well, if counsel—
The
Court: If counsel,—the witness has already said that he found certain marks
indicated when a certain plane was operated on the ladder.
Mr.
Pope: Then I think that is sufficient.
The
Court: Well, it may be so, but I am not sure that they haven’t a right to
demonstrate that.
Mr.
Pope: We think they have not, sir, under the circumstances—
The
Court: You think they have not?
Mr.
Pope: —and under the state of the evidence as it stands now at the present
time.
[2240]
The Court: Well, I won’t deny them that right.
Mr.
Pope: May we have an exception? The Court: You may have an exception.
(Exception
allowed and same is signed and sealed accordingly. THOMAS W. TRENCHARD {L.S.}
Judge.)
By
Mr. Wilentz:
Q.
Will you please take this plane, S‑177, and demonstrate to the jury what you
mean by plane marks. A. I will take a piece of wood which has previously
been planed by a machine planer and is practically smooth. Now I will plane
that with this hand plane and then make an impression of the marks made by that
plane and also an impression of similar marks on the rail or some of the rungs
of this ladder and show their similarity.
Mr.
Pope: May I ask the witness a question at this point, sir?
The
Court: Certainly.
By
Mr. Pope:
Q.
What kind of wood is that you are going to plane? A. This is Ponderosa
Pine.
Q.
That is different and much softer than North Carolina pine, different in grain
and texture? A. It is different from North Carolina pine.
[2241]
Mr. Pope: I submit if we are going to have any demonstrations at all, we ought
to have a piece of North Carolina pine brought into court and a piece of North
Carolina pine planed, not a piece of nice soft pine, or nice soft poplar or
something like that.
By
Mr. Wilentz:
Q.
Have you a piece of North Carolina pine here that you might use? A. I
haven’t got a piece that I could clamp down very well, but if I may offer the
suggestion—
Mr.
Pope: We don’t want any suggestions from the witness.
Mr.
Wilentz: Just a minute, now.
The
Court: Let the Attorney General examine him. He may find out something from him
which may be of value.
Mr.
Wilentz: What suggestion did you say you have?
Mr.
Pope: I object to the question.
Mr.
Wilentz: Counsel wants North Carolina pine. I am trying to meet his objection,
your Honor, and that is the only purpose. Have you something in the courtroom
here, N. C. pine instead of what you proposed to use a minute ago?
The
Witness: No, that was not what I was going to suggest.
[2242]
Q. What could you use? A. The same plane marks, hand plane marks occur on the rungs of this ladder and they are made of Ponderosa pine.
Q. What could you use? A. The same plane marks, hand plane marks occur on the rungs of this ladder and they are made of Ponderosa pine.
Q.
That is fine. You mean then that the rungs of this ladder, you mean those
little pieces that connect are made of Ponderosa pine? A. Yes.
Q.
And that is exactly the same type of wood as you have here? A. Yes.
Q.
Were there plane marks and are there plane marks upon this Ponderosa pine?
A. Yes.
Q.
Are the plane marks made by the plane that is in evidence? A. Yes.
Q.
Now, will you show us the plane marks on this?
Mr.
Pope: Wait a minute.
Q.
On this Ponderosa pine?
Mr.
Pope: May I—
Mr.
Wilentz: Just a minute, please.
The
Court: Well, it seems rather irregular. Why interrogate him every minute?
Mr.
Pope: I want to find out about this Ponderosa pine, where it came from.
Mr.
Wilentz: Suppose counsel waits until the State is through with its
investigation, rather than continuously interrupt?
Mr.
Pope: I may not object to his demonstration—
[2243]
Mr. Wilentz: I am not interested in whether he objects to the demonstration.
Mr.
Pope: Then I object until it has been established that this piece of Ponderosa
pine came from the same pine forest or the same general locality as the alleged
Ponderosa pine in the ladder came from.
The
Court: He has already testified that he is now proposing to demonstrate with
the same quality of wood—I don’t know—
Mr.
Pope: He hasn’t said that.
The
Court: Not Suppose you find out about it. I don’t know what kind of wood it is.
Q.
Is the piece of wood upon which you propose to make the demonstration the same
type, the same quality of wood that makes up these rungs of the ladder?
A. Yes.
Q.
No different? A. No.
Q.
No trick about this, is there? A. No.
Q.
The same type of wood. A. Yes.
Q.
The same type of grain? A. Yes.
Q.
The same strength? A. Approximately.
Q.
Approximately the same? A. Yes.
Q.
Of course you don’t know whether it came as a part of the same tree, do you?
A. No, not of the same tree.
Q.
Ponderosa pine, it is, isn’t it? A. Yes.
Q.
The rungs in the ladder are part of Ponderosa pine. A. Yes.
Q.
Will a demonstration of the plane upon the piece which you propose to use have
the same [2244] force and effect as if you used it upon the very rungs of the
ladder? A. It will.
Mr.
Wilentz: Now may we proceed?
The
Court: You may proceed, Mr. Attorney General.
Mr.
Wilentz: All right, sir.
Q.
Now will you show the jury what you mean?
Mr.
Pope: Well, I object to the question because it hasn’t been shown yet as to
where this Ponderosa pine came from, whether it came from the same section of
the world as the other did or not. There is a difference in Ponderosa pine.
The
Court: I will overrule the objection.
Mr.
Pope: May I have an exception? The Court: Take your exception.
(Exception
allowed and same is signed and sealed accordingly. THOMAS W. TRENCHARD {L.S.}
Judge.)
Q.
Have you the plane and will you give us a demonstration? A. Yes. In order
to make an impression of these plane marks, I employ a very simple method that
I learned when I was a youngster. I used to put a piece of paper over a coin
and rub a pencil back and forth over the [2245] paper and get an impression of
the coin on the paper. I can do that same thing by putting a piece of paper
over the plane surface, rubbing a pencil back and forth, and getting an
impression of these marks made by the hand plane. Before I do that, however, I
will take this piece of wood before I plane it and see what we get, so as to
have something for comparison. Now I will mark this piece of paper before
planing in court.
Q.
You have marked it you say? A. I will mark it before planing in court.
Q.
Wait a minute, let me give it to the stenographer and let him mark it, will
that be all right, sir, serve the same purpose? A. Certainly.
Mr.
Wilentz: Right about he is writing here. Will you just put your stamp for
identification on that. Will that interfere with your demonstration?
The
Witness: Not at all.
Mr.
Wilentz: All right, will you mark it there?
The
Reporter: S‑234 for Identification.
(Paper
referred to was marked State Exhibit S‑234 for Identification.)
The
Witness: If it is all right, your Honor, I would like to make the demonstration
here, because this seems to be a substantial thing to work on (indicating the
Judge’s bench).
[2246]
The Court: All right, so far as I am concerned.
Q.
All right, sir. Mr. Koehler, if you want a little time now, we might ask for a
recess, if it will take you a few minutes to get these pieces together instead
of asking for it a little later. A. It won’t take long if it works all
right the first time. This plane is in such bad condition, I might have to try
it a couple of times to get a satisfactory mark.
Q.
Would you rather have a recess now if the Court will permit it for five or ten
minutes now? A. I would rather have it a few minutes later.
Q.
All right, go ahead, sir. A. I take it you wouldn’t want me to do this
planing during the recess time.
Q.
No, I want you to do it right here in the room. A. Now, before planing the
top edge of this piece of wood, I will make some marks on there with a pencil
to be sure that we can see that the plane takes something off. (The witness
proceeded with his demonstration.) On this one end you can see that all the
blue marks have been removed. That means that the planer took off a complete
shaving all the way across the piece of wood. I will now proceed to make an
impression of the marks made at that point. (Demonstrates.)
Mr.
Wilentz: Will you let me mark that for identification. I offer this paper for
identification.
(Paper
marked State Exhibit S‑235 for Identification.)
Q.
Is the paper S‑235 for Identification the pa- [2247] per that was applied after
the planing? A. Yes, sir.
Q.
To the object that was planed? A. Yes.
Q.
Let me ask you, Mr. Koehler, before you proceed any further: is there a
difference in the impression that comes before the planing as shown on S‑234
and the planing as shown on S‑235? A. There certainly is.
Q.
Take them and show them to the jury, please. You have to get close so that they
can see it. A. This sample which is an impression of the piece of wood I
just planed, you can notice distinct lines running across there. You can see it
better by looking at it slanting over the paper. See those lines there. This
here we have a few curved lines in the grain of the wood.
Q.
One has curved lines you say due to the grain? A. Yes.
Q.
That is the one, 234, before the planing you mean? A. Yes.
Q.
And what does the other show as distinguished between— A. It shows a
different series of lines.
Q.
Different series of lines? Now, will you explain the marks of the plane?
A. Now I will next proceed to make a similar impression of the hand plane
marks on one of the rungs of the ladder.
Q.
What is that again, Mr. Koehler? A. I will proceed to make an impression
of the hand plane marks on one of the rungs of the ladder.
Mr.
Wilentz: I appreciate that each one of the jurors has not had an opportunity to
see this but I take it that it will be given to them when they retire to the
jury room. Suppose we pass it around. We have the time anyway so we might as
well pass it around.
[2248]
A. That was rung No. 10. Do you want to mark this as an impression taken
from rung No. 10?
Q. Rung No. 10 on Section 3? A. Yes.
Q. Rung No. 10 on Section 3? A. Yes.
Q.
Of Exhibit S‑211.
Mr.
Pope: Will you have it marked just that way, rung No. 10?
Mr.
Wilentz: Rung No. 10 of Section 3 of Exhibit 211, I think it is.
The
Reporter: S‑237 for identification.
(Paper
marked State Exhibit S‑237 for Identification.)
Mr.
Wilentz: S‑237 for identification. Do you want to put at the bottom “Rung 10,
Section 3”? No objection, your Honor?
The
Court: No.
Mr.
Wilentz: “Rung 10, Section 3.” That is all right.
(The
Reporter marked the exhibits requested.)
The
Witness: I might say, Mr. Attorney General that it will be necessary to trim
the ends off of this. Will that be satisfactory?
Q.
Well, trim them; whatever is necessary, do. [2249] A. Can you make that
mark on the other side of this? I want to cut it off.
Q.
Yes, cut off whatever you want to cut off and we will have the mark made over
again. A. (The witness cuts the paper.)
Q.
Now is this the exhibit? A. Yes.
Q.
If we put that on there it will be all right? A. Yes.
Q.
If we put it on the back, will it interfere with you? A. Not over the blue
part.
Mr.
Wilentz: Well, supposing you put it alongside. Supposing you just mark it
without a stamp, at the bottom.
Mr.
Pope: Mark it in evidence.
Mr.
Wilentz: Exhibit S‑237 in evidence.
(Paper
marked S‑237 for Identification was received in evidence as Exhibit S‑237.)
Mr.
Wilentz: All right, Exhibit S‑237 in evidence. Now just put underneath that,
“Rung 10, Section 3”.
(The
reporter marked the exhibit as requested.)
Mr.
Wilentz: All right.
Mr.
Pope: When you get through with it I want to see it.
A. I
will match them end to end.
Mr.
Wilentz: Let me mark them in evidence; I understand counsel is satisfied to
[2250] have them marked in evidence instead of for identification?
Mr.
Pope: That is all right.
Mr.
Wilentz: 234?
The
Reporter: Exhibit S‑234.
(State
Exhibit S‑234 for Identification is now received in evidence and so marked.)
Mr.
Wilentz: And the other one, S‑2351
The
Reporter: Exhibit S‑235.
(State
Exhibit S‑235 for Identification is now received in evidence and so marked.)
By
Mr. Wilentz:
Q.
Now, as I understand it, then, you have these three pieces; one is S‑234, that
is the impression of the piece of wood you use for demonstration purposes; the
next is S‑235, the impression from the same piece of wood after it had been
planed by the plane in evidence? A. Yes.
Q.
Now, S‑237, the impression from the rung of the ladder, known as Rung 10,
Section 3. A. Yes.
Q.
Now, will you please proceed with your explanation and demonstration?
A. Now I have those three impressions fastened to one card. This white
portion here was made on the block of wood before planing. This piece in the
middle was made on the piece of wood after I planed it here and this impression
was taken off from one of the rungs of the ladder, rung Number 10. Now [2251]
if you will look along there, sight along there, you can see a number of lines
on this impression from the ladder rung which coincide exactly with similar
lines of these impressions made on the wood which I have planed. Look along it
in a diagonal manner that way (indicating).
Q.
How far do they correspond? A. All the way.
Q.
Well, do they proceed up to the part before it is planed? A. No. Up to that
portion.
Q.
That is what I mean. You have three portions here. Pardon me a minute. When you
say these lines run, do they run all the way up or stop right there
(indicating)? A. They stop right there.
Q.
As I understand it, your testimony is that the lines and marks made by the
planer correspond on the Exhibit 235 and 236, one being the ladder rung and the
other being the part that was planed in court by you. A. Yes, sir.
Q.
Does that correspond as it proceeds into the piece of wood before it was
planed? A. No. There is no similarity at all.
Q.
So then I understand the two bottom exhibits correspond and the top one
doesn’t? A. Yes.
Q.
Let me ask you: can you show it better by a larger photographic reproduction?
A. Yes, if I can—
Q.
Of a similar test made by you? A. Yes.
Q.
Under photographs made by you? A. Yes.
Mr.
Wilentz: If there is no objection, for the benefit of everybody, I would like
to offer this exhibit.
Q.
Is this the exhibit that you made for the purposes of better demonstrating this
test? A. This [2252] exhibit demonstrates marks made by the plane, various
planes found in the Bruno Hauptmann’s premises.
Q.
Does it show particularly this plane? A. Yes.
Q.
Which is in evidence? A. Yes.
Q.
Which boards on here—
Mr.
Wilentz: Will you mark this for Identification first?
(Photograph
marked State Exhibit S‑238 for Identification.)
Q.
The pieces of wood that are shown here, what kind of wood are they? A. All
Ponderosa pine.
Q.
Ponderosa pine. Did you use those pieces of wood and make a test with the plane
that is in evidence? A. Yes. The top two pieces—
Q.
The top two pieces. Limit yourself for the time being to the two top pieces.
Mr.
Wilentz: Can I offer that portion in evidence without objection?
A. I
have the same ones on a different picture.
Q.
All right. Let’s have that then.
Are
these pieces of wood Ponderosa pine? A. These two pieces are Ponderosa
pine that I planed with this plane that is in evidence.
Q.
Now, the top, you have got Rung No. 10, does that mean rung No. 10 of the
ladder? A. Yes.
Q.
Rung No. 8, is that a part of the ladder? A. Yes.
Q.
Rung No. 16, is that a part of the ladder? A. That is the rail.
[2253]
Q. Bracket from the garage, is that the bracket which is in evidence? A. Yes.
Q. Bracket from the garage, is that the bracket which is in evidence? A. Yes.
Q.
All right.
Mr.
Wilentz: Now let’s give this a number.
The
Reporter: Is that to be substituted for the lower one?
Mr.
Wilentz: Yes, please.
The
Reporter: That will be S‑238 for Identification.
Mr.
Wilentz: S‑238 for Identification.
(Exhibit
referred to was marked State; Exhibit S‑238 for Identification.)
Q.
Referring to S‑238 for—
Mr.
Pope: Well, just a moment, I object to the exhibit.
Mr.
Pope: I object to the exhibit unless it be shown that the Ponderosa pine used
in the demonstration came from the same forest or the same section of the
country that the Ponderosa pine which is in the ladder.
The
Witness: Well, it undoubtedly—Shall I answer that?
By
Mr. Wilentz:
Q.
Did they come from the same section? A. [2254] It undoubtedly came from
the section where Ponderosa pine grows.
Q.
Where does Ponderosa pine grow? A. It grows in the Western States.
Q.
None in the Eastern States? A. No.
Q.
None in the Southern States? A. No.
Q.
What States do you call the Western States? A. From the Great Plains
westward.
Q.
Tell us something about Ponderosa pine. A. Ponderosa pine is one of the
most common species of pine—in fact, it is the most common species of pine in
this country. It grows throughout the forested area from the Great Plains
westward to the Pacific Ocean. It is a relatively soft grade of pine and is
used extensively in the East and all through the country for a great many
purposes.
Q.
But it comes from the West? A. Yes.
Q.
I see. And would a test upon any piece of Ponderosa pine from the west
correctly demonstrate markings that would be used on the rungs of this ladder?
A. Yes.
Q.
Which rungs are Ponderosa pine. A. Yes.
Q.
Would it be accurate? A. Yes.
Q.
Would the impressions of the plane in evidence upon Ponderosa pine, any
Ponderosa pine from the West be the same as they would be upon the rungs of this
ladder? A. Yes.
Q.
The exhibit you have, except for the piece at the bottom, or are there two
pieces? A. Two pieces.
Q.
Represent correct photographic reproductions of the rails in evidence and the
bracket in evidence? A. Yes.
Q.
All right.
The
Court: Now, Mr. Attorney General, perhaps it would be better to dispose of Mr.
Pope’s objection. [2255]
Mr.
Wilentz: Yes, sir.
The
Court: Do you desire to press it any further, Mr. Pope?
Mr.
Pope: Yes, sir.
The
Court: I will overrule it.
Mr.
Pope: May we have an exception?
The
Court: Take your exception.
(Exception
allowed and same is signed and sealed accordingly. THOMAS W. TRENCHARD {L.S.}
Judge.)
Mr.
Wilentz: We offer it in evidence.
The
Reporter: 238 in evidence.
(Photograph
received in evidence and marked State’s Exhibit S‑238.)
By
Mr. Wilentz:
Q.
Now please show us the plane marks upon the bracket from the garage, if there
are any there, on rail 16, rung 8 and rung 10, if there are any impressions
from the plane which is in evidence and I think is marked S‑177?
A. Beginning with the two bottom pieces which are Ponderosa pine, which I
planed with this plane which is in evidence, because the plane is so wide and
in such poor condition, it is not possible to get a complete [2256] cut across
the full width of the plane on one board.
Q.
You are referring to this plane S‑177? A. Yes, sir. I took two different
boards and got different portions of the knife to cut over parts of the boards
at least. So these lines that you see along here are ridges which were left by
that Plane No. 177 on account of the nicks or little breaks in the knife of the
plane.
Q.
Just a minute. Are you talking about the knife which protrudes and which is
shown through here? A. Yes.
Q.
You say there are nicks? A. Yes.
Q.
All right. A. These photographs of rail 16, rung No. 8 and rung No. 10
show edges on those various pieces respectively and they also show ridges and
the way they do not run parallel with the edge, they were made by hand plane
and not due to a machine. Now, it is possible by careful study to compare the
marks on these pieces which I planed with this plane in evidence, with the
marks on these rungs and rail, but a simpler method is to cut out portions of
these pictures and match them end to end, and that is what I have done as shown
in the next picture. This picture is a portion, or portions of a duplicate of
this photograph, cut out, and those portions are pasted on here end to end.
Here is one of these Ponderosa pine pieces, which I planed.
Q.
Shown on S‑238? A. That is the upper one in Exhibit S‑238 and here is the
other one at this end, that is the lower one in S‑238. In between we have
portions of these photographs of rung 8, rung 10, and rail 16. Now if you take
that and look along it in a—
Mr.
Wilentz: Give me a number for it.
[2257]
The Reporter: S‑239 for identification.
A. (Continued.)
In a brief manner you will see that those lines run through in perfect
alignment.
Mr.
Wilentz: Exhibiting to the jury S‑239 for identification. We will offer it in
evidence. It is a correct reproduction of other parts.
(The
jury examined the photograph.)
Mr.
Wilentz: If your Honor please, when the jury is finished inspecting this
exhibit may we ask for a few minutes until we get some air in the court room
and a little rest?
Mr.
Pope: I second the motion.
(The
photograph was received in evidence and marked State Exhibit S‑239.)
The
Court: Are you ready now for your recess?
Mr.
Wilentz: Yes, if your Honor please.
The
Court: We will take a recess now for five minutes.
(Whereupon
at 3:14 o’clock a five minute recess was taken.)
(After
a short recess. The jury was polled and all jurors answered present.)
[2258]
The Court: Counsel may proceed.
By
Mr. Wilentz:
Q.
My recollection is that there was exhibited to the jury just before our recess,
Exhibit S‑239 with your explanation that the grain coincided on each piece as
you exhibited it, is that so? A. Not the grain, the marks made by the
plane.
Q.
The marks; are those the marks as they join together as you exhibited it?
A. Yes.
Q.
And you have connected, as I understand it, one piece of Ponderosa pine upon
which you claim the marks are shown, then next you put a piece of rung No. 8 of
the ladder, which is in evidence, next a piece of rung No. 10. A. Yes.
Q.
Then you have a piece in here labeled Rail No. 16. Is that the rail of the
ladder? A. Yes.
Q.
And then another piece of Ponderosa pine, which is not a part of the ladder?
A. Yes.
Q.
So that this exhibit is intended by you to show the plane marks on each one of
those pieces as they are connected by you? A. Yes.
Q.
And is it your understanding that they are connected and show those plane marks
identically on each piece? A. Yes, sir.
Q.
Now let me ask you something. These plane marks which you show on this exhibit,
S‑239, are they plane marks made from the plane which is in evidence as S‑177?
A. Yes, sir.
Q.
Do they correctly show the plane marks on these rungs that you have here, and
on the rail A. Yes.
Mr.
Pope: Won’t you let the witness testify?
Mr.
Wilentz: Yes.
[2259]
Q. Tell me, please, what plane it was that was used to plane the rungs 8 and 10
and rail number 16. A. This plane here (indicating), S‑172.
Q.
177 I think it is. A. Yes, 177.
Q.
We have in evidence here, sir— Just for the moment, I notice here too that rung
number 10 shown on here, that there is a little difference in color of the
various .pieces. Is there any significance to it that you know of? A. No
particular significance. The lighter parts had been stained with finger print
solution, and then you get differences in density or darkness of a picture
sometimes just in printing, the photographic variation.
Q.
I want to show you Exhibit S‑227, which is in evidence and regarding which
there was testimony that this was a piece of wood which was found in
Hauptmann’s garage, a part of the garage, as I remember it, some support—tell
me whether or not that has any evidence as of a plane, being hand planed?
A. Yes, the back edge of this shows marks identical with those on the
rungs and rail 16 and on the samples which I planed with this plane.
Q.
Tell me what plane was used on this piece of lumber known as S‑227?
Mr.
Pope: I object to that. He can’t do that. He can only guess at it.
Mr.
Wilentz: He can’t guess at it. He gives us his expert knowledge.
Mr.
Pope: He has already described what marks look like on the plane. Now he is
asked what plane was used to plane this piece of wood. Unless he was there and
saw or knew he can’t do anything but guess at it. He may give an opinion, that
is all.
[2260]
The Court: That is what he is giving.
Mr.
Pope: No, he isn’t—
The
Court: Well, he is asked to tell if he knows.
Mr.
Pope: Yes. I don’t object to that.
The
Court: He may tell if he knows.
A. Yes,
I know.
Q.
Then tell us if you know what plane was used to plane that piece of wood, S‑233,
is it? A. This plane—
Q.
S‑227? A. This plane marked S‑177 was used to plane the back edge of this
bracket.
Mr.
Wilentz: Now let me have the chisel, please.
Q.
I want to show you State’s Exhibit S‑210, a chisel. Have you seen that chisel
before? A. Yes.
Q.
Can you tell whether or not that chisel was used in the construction of the
ladder, which is in evidence as S‑211, and, if you can, will you tell us about
it. A. I can tell whether that size was used.
Q.
Whether that size? A. Yes.
Q.
All right. Tell us what size chisel was used in the construction of that
ladder, and what part of a chisel of that size was used, if it was. A. The
re—
Mr.
Pope: Well, I think we ought to object to that. Of course, if he wants to
express his opinion as to whether this identical chisel was used, why, perhaps
his opinion may be expressed; but to say that an ordinary three-quarter inch
chisel was used to make the ladder doesn’t connect it with this chisel in any
way.
The
Court: Well, it may be a circumstance for the consideration of the jury.
Mr.
Pope: Well, if this chisel were found in Hauptmann’s garage it might be a
circumstance, but it was found some forty miles away from there.
The
Court: Yes. And it was found, was it not, under the southwest window of this
nursery?
Mr.
Pope: Somewhere on the Lindbergh property, I don’t remember where. It is an
ordinary three-quarter inch chisel.
The
Court: Where the ransom note was left, which has been traced to this defendant.
Mr.
Pope: We don’t agree to that.
The
Court: I know you don’t, but I am telling you what the evidence tends to show.
Therefore I think that these pieces of circumstances must be given over to the
jury to consider. That is my ruling in the matter.
Mr.
Pope: May we have an exception?
The
Court: Yes, you may have an exception.
[2262]
(Exception allowed and same is signed and sealed accordingly. THOMAS W.
TRENCHARD {L.S.} Judge.)
The
Court: I understand the present inquiry is as to what size of chisel was used
in the making up of this ladder.
Mr.
Wilentz: If he knows.
Mr.
Pope: I have no objection to that.
Mr.
Wilentz: Well, that is the question.
The
Court: That is all I have been ruling on.
Mr.
Wilentz: That is all the question is.
The
Court: And that is all I have been talking about.
By
Mr. Wilentz:
Q.
What sized chisel was used in the construction of this ladder, if you know.
A. A three-quarter inch chisel was used in chiseling out recesses for the
rungs.
Mr.
Wilentz: Will somebody open this chest for me?
Q.
Do you know what sizes of chisels make up a carpenter’s chest of chisels?
A. As a rule a good carpenter’s tool chest should contain a quarter inch
chisel, half inch chisel, three-quarter inch [2263] chisel, one inch, and one
and a half, and possibly two inch chisel.
Q.
Tell me, please, if anyone knows, the number of this exhibit, the tool chest.
The
Reporter: It is on the tag. Mr. Wilentz: Is it on the tag? Mr. Peacock: S‑196.
Q.
How many altogether did you say, sizes? A. Five or six.
Q.
What sizes did you give us again now? A. Quarter inch, half inch,
three-quarter inch, inch, inch and a half, and two inch.
Q.
Take a look at the chisels found in the Hauptmann place and tell me whether
there is a three-quarter inch chisel there or whether there is one missing.
Mr.
Pope: Well, I object to that part of the question as to whether one is missing.
Mr.
Wilentz: I think that is objectionable. I will withdraw that.
Q.
Tell us what size chisels there are there. Take your time, Mr. Koehler. Can I
help you here? A. There is a quarter inch chisel, a half inch chisel, and
an inch and a half chisel.
Q.
Is there any three-quarter inch chisel in the chest that was found in
Hauptmann’s home?
Mr.
Pope: Is there any three-quarter inch chisel in the lot displayed there, not
found in Hauptmann’s home?
[2264]
Q. In the exhibit. A. No.
Q.
All right, sir. Now you told us, I think, that a three-quarter inch chisel was
used to construct this ladder? A. Yes, sir.
Q.
Would you mind telling us why you say that, the basis for your opinion?
A. May I show you some photographs?
Q.
Yes, if you have photographs that will better show it. Before you do that, will
you just answer one question for me: Will you take a look at the quarter inch
chisel which is a part of the exhibit heretofore entered, and take a look at
the three-quarter inch and let me know whether or not they are the same make,
same type of chisels? A. Yes, they are.
Q.
What kind of chisels are they? A. They are Buck chisels, so-called Buck
chisels made by Buck Brothers and the pattern is the same on the two. The
milling on the ferrule is identical on the two, the general pattern is the
same.
Q.
Between the quarter-inch chisel and the three-quarter inch chisel? A. Yes.
Q.
They are unlike the other chisels that I have shown? A. Unlike, yes.
Q.
Unlike. Now, you were going to show us just a moment ago how you have
determined that the three-quarter inch chisel was used in the construction of
this ladder. A. Yes.
Q.
And you want to show it by this exhibit: is that it? A. Yes.
Q.
Does this exhibit show pieces of wood that are a part of this ladder?
A. Yes.
Mr.
Pope: Just let him tell what it shows.
Mr.
Wilentz: I want to know before I offer it.
[2265]
Q. I notice you have Rail No. 16—what does that mean? A. That means that
this is a picture of a portion of Rail 16.
Q.
I notice too that there apparently is on this board a picture of some sort of a
rule. A. Yes.
Mr.
Pope: Square.
Mr.
Wilentz: One inch, two inch—
Mr.
Pope: Square.
Mr.
Wilentz: Square, is it?
Q.
Except for that and the words “Rail No. 16” does that show parts of Rail No.
16? A. Yes.
Mr.
Wilentz: May I offer it in evidence, please? What number? Mr.—
Mr.
Pope: No objection.
The
Reporter: Exhibit Number S‑240.
(Chart
referred to was received in evidence and marked State’s Exhibit S‑240.)
The
Court: No objection. It will be admitted.
Q.
All right. Now, give us the demonstration and explanation. A. This is the
picture of one of the recesses for the rungs in this rail 16. These recesses
were chiseled out and this shows a mark made by the chisel, one side of the
chisel went down there and then there is a right angle turn here. Here is a
parallel line on this side. This is the corner of the recess right here, so the
line [2266] extends, or the mark made by the chisel extends from almost the
middle of the rung, not quite the middle of the recess, I mean, over to the
very edge of the recess. Now, I superimposed a chisel on there of
approximately, that seemed to be approximately that size, I took a
three-quarter inch chisel, by superimposing that over that mark—and this
picture shows it better than the other one (referring to another chart) and
this mark right here, one side you see of the chisel lines up with this edge of
the cut and this other side lines up with the edge of it or the corner of the
recess. It couldn’t have been a wider chisel. Now, this corner of the recess
would have prevented that. That three-quarter of an inch chisel, in other
words, fits perfectly into that mark made by that chisel.
Q.
Of course you don’t know what three-quarter inch chisel made the mark.
A. No.
Q.
Your testimony is that a three-quarter inch chisel did it. A. Yes.
Q.
Is there a groove there that is shown, I mean, on the ladder that is shown
which you say the chisel fits into? A. Yes.
Mr.
Wilentz: Will you please mark the exhibit, if there is no objection, in
evidence, the one used for illustration?
The
Reporter: S‑241.
(Exhibit,
chart, referred to was received in evidence and marked State Exhibit S‑241.)
Mr.
Pope: It is understood this chisel used in the demonstration is a chisel be-
[2267] longing to the witness, but a three-quarter inch chisel.
Mr.
Large: No.
Q.
The chisel used for demonstration is what? A. A three-quarter inch chisel.
Q.
Was it this chisel or some other chisel? A. That chisel.
Q.
Was the chisel number S‑210 that you used for the purpose of demonstration?
A. Yes.
Q.
All right, sir. That picture of the chisel shown there on this exhibit, which
is number 241, is exhibit S‑210, is that it? A. Yes.
Q.
Will you take that ladder and show us the impression that was made by the
chisel and which you say, into which you say the chisel fits? A. I think
it can be shown by this light, it takes a one-sided light—pardon me—yes. Bring
that end around and work it on the other side. (Taking ladder before the jury.)
Mr.
Wilentz: I want you to walk along nice and slowly and indicate to each juror, I
will hold it, now one at a time, and I wish you jurors in back would please
lean forward. We need a little more light. Is that the ridge you are talking
about right in there (indicating on S‑211)?
The
Witness: (Indicating.) Yes.
By
Mr. Wilentz:
Q.
Show the ridge; is that the ridge right here? A. Yes.
Q.
Show how the chisel fits in here. A. (Indicating.)
[2268]
Q. Look right over, please, jurors, if you don’t mind. The ridge you are
talking about is right there, this indentation here? A. Yes.
Q.
Show how the chisel fits right in. A. Yes. (Indicating.)
Mr.
Pope: Not too much conversation over there. Let him show it.
Mr.
Wilentz: I think maybe you are right. If it is objected to, I will desist. That
is not really conversation, if your Honor please; that is just youthful
enthusiasm. I should like to present to the jury the two chisels which the
witness testified to as being the same make, one found on the Lindbergh
premises and one, the testimony is, found in the garage. Just for the purpose
of your examination, you can pass them along while we are proceeding to the
next course. (Handing exhibits to the jury.)
By
Mr. Wilentz:
Q.
Mr. Koehler, when did you first come into this case? A. I made my first
examination of parts of the ladder in 1932.
Mr.
Wilentz: What date was that, please?
The
Reporter: May 1932.
Q.
May 1932? A. Yes.
Q.
So far as salary is concerned, the State of [2269] New Jersey doesn’t pay you
any money for your work, does it? A. No.
Q.
So that since May 1932 you have conducted an investigation with reference to
the identity of the wood that makes up this ladder? A. Yes.
Q.
The kidnap ladder, we call it. A. Yes.
Q.
You know, of course, from the testimony in this case, that the defendant
Hauptmann was arrested in September 1934? A. Yes.
Q.
Prior to September 1934 and before the day that Hauptmann was arrested had you
ascertained where some of the lumber came from? A. Yes.
Q.
What date was it? A. November 29th, 1933.
Q.
Now in November, 1933, did you determine where some of the lumber that made up
this ladder came from? A. Yes.
Q.
Where did it come from? A. From the National Lumber & Millwork Company
in the Bronx.
Q.
Did you go to the National Lumber and Millwork Company in the Bronx in 1933?
A. Yes.
Q.
Why did you go to this company in 1933? A. I traced some of the lumber in
the ladder to the planing mill that dressed it and from the planing mill to the
National Lumber & Millwork Company.
Q.
All right. Now will you tell us how you traced it? A. I traced it by means
of the planer marks made on the lumber when it was planed at the planing mill.
Q.
You mean the machine planer marks? A. Yes.
Q.
That is, distinguished from the plane in this case? A. Yes.
Q.
Where did you go? A. I went to the M. G. & J. J. Dorn Company,
McCormick, South Carolina.
[2270]
Q. How many companies are there that manufacture these planing machines? How
many were there in 1932, we will say, and 1931? A. Two in the eastern part
of the United States.
Q.
Did you make an investigation of the machinery that is built by these planer
companies? A. Yes.
Q.
And as the result of that investigation, did you find the machine which imposed
these planer marks on this ladder? A. I did.
Q.
Where did you find the machine? A. At the mill of the M. G. & J. J.
Dorn Company, McCormick, South Carolina.
Q.
Having found the planer machine that made these planer marks, did you then
follow the lumber that came from that mill, made in the shipment when that
planer was used? A. Yes.
Q.
How many loads of lumber did you follow, how many shipments? A. About 42.
Q.
To various lumber companies in the country? A. Yes.
Q.
And finally did you get to this lumber company in the Bronx? A. Yes.
Q.
Did you or did you not find lumber there upon which was made planer marks?
Mr.
Pope: Why not ask him what he found there?
Q.
Yes. Tell us what you found there. I think that is better. A. At the
National Lumber & Millwork Company in The Bronx I found one by four North
Carolina pine, in which the knife cuts made by the planer were exactly the same
width as those on the ladder rail and also there was a defect in the planing on
one edge and one side of the rail, which I found on the one by four North Carolina
pine in The Bronx yard.
[2271]
Q. How did you know, how could you know, and how did you know that the defect
which was shown on the ladder and which defect you say you also found in lumber
in The Bronx lumber yard, the Bronx Lumber & Millwork Company, how did you
know that those planer marks were made by the planer you found in the Dorn
Company mill? A. That is a long story.
Q.
We want the long story. Let’s have it. A. I think I had better explain to
the jury first what I mean by planer marks.
Q.
Yes, sir. A. I have some drawings here which illustrate how a planer makes
marks as it dresses lumber. I believe the jury is not familiar with the way
these machine planers work, so I have a diagrammatic drawing here of certain
essential features of a machine planer. (Diagram placed on wall.) This shows a
piece of lumber in here which is being planed. Above this board there is a
so-called cutter head, which has knives set into it. There are eight knives
shown in this cutter head. Some have six, some four, ten, even twelve. That
cutter head revolves as the lumber goes through it, and those knives come
around and cut a shaving off the surface of the lumber. There is another cutter
head on the lower side with knives set in it, and as that cutter head revolves
those knives plane the bottom side of the lumber.
Q.
How many knives in that? A. There are eight knives in that one, but that
is not necessary in every case. There may be more or less. These two rollers
are called the feed rollers. The lumber goes through between those rollers, and
is shoved through the machine by them, and the speed at which those feed
rollers revolve determines the speed at which the lumber goes through the
planer. Now on most planers the speed of the feed rollers can be changed, to a
[2272] high speed or medium or low speed, to different rates of speed; but the
speed of these cutter heads is always the same. Now the next picture shows—
Mr.
Wilentz: Let us mark that for identification.
Mr.
Pope: Mark it in evidence.
Mr.
Wilentz: All right.
Mr.
Pope: I want to use it.
Mr.
Wilentz: We will mark it in evidence.
The
Reporter: S‑242.
(Diagram
received in evidence and marked State’s Exhibit S‑242.)
Q.
All right. Proceed, sir. A. Since these knives go around in a circle, each
knife makes a circular cut out of the board. Those cutters are so small we
don’t ordinarily notice that, but yet that is the case, and as a result, a
board which is planed by a machine planer has a wavy appearance. Now if those
knives are all in good condition and functioning properly, each one, all of
those waves are of the same size. Suppose one of the knives has a defect in it,
like is shown here in knife No. 7, a nick every time that knife comes around it
makes a mark there where that nick is. The other knives don’t have such a nick
in them, so we can tell how often that knife comes around and below this cutter
head I have a diagrammatic drawing of a piece of [2273] lumber which shows the
circular cuts on the surface and also shows a mark in every cut, marked No. 7;
that is, each time this defect comes around. There are eight cuts from one to
the other. Here is one, two, three, four, five, six, seven, eight—in other
words, every eighth cut like that shows that defect. Once in a while a knife
may not be lined up properly with the rest of them, as is shown here for knife
No. 5. As a consequence, when it comes around it doesn’t make as heavy a cut as
the other knives, it makes a narrower cut, and I have shown that here with cut
No. 5. You will see cut No. 5 is narrower in each case. And there are eight
cuts from one to the other, one, two, three, four, five, six, seven, eight. In
other words, every eighth cut is a narrowed cut in that case. Therefore, by
examining the surface of a piece of lumber, it usually is possible to tell how
many knives there were in the cutter head that dressed the lumber, because as a
rule there is something wrong with a knife somewhere, maybe a little nick in it
or the knife may be out of line, and so it is possible by examining the surface
of a piece of planed lumber in most cases to determine how many knives there
were in the cutter head that dressed the lumber. In addition to these knives
being in the top and bottom—
Q.
Excuse me just one minute. A. Yes.
Mr.
Wilentz: The exhibit you have just referred to I offer in evidence. I take it
there is no objection.
The
Reporter: S‑243.
(Chart
referred to was received in evidence and marked State’s Exhibit S‑243.)
[2274]
Q. I am sorry to interrupt you, Mr. Koehler. Go ahead. A. In addition to these
cutter heads planing the top and bottom of a board as it goes through the
planer, there are similar cutter heads standing vertically on the two sides of
the board and plane the edges of the board as it goes through the planer, so
that all four sides of a board are planed as it goes through the planer.
Q.
Pardon me just a, minute. Do you mean there is a planer operates on the side
here? A. Yes, on each side. That is not shown in the photograph.
Q.
As well as above and below? A. Yes.
Q.
All right. A. Now, the number of knives in those cutter heads that plane
the edges may be the same as in the top and bottom cutter heads, but usually
they are less. Very often if there are eight knives in the top and bottom
cutter heads, there will be six in the side heads, as they are called or, if
there are six knives in the top and bottom cutter heads, there will be four in
the side heads. Now here I show a photograph of rail number 13 of this ladder,
that is one of the rails of the bottom section of the ladder. This is a
photograph of a portion of the side of one of these rails. You will notice that
there is a periodic mark occurring at regular intervals. That is due to one of
the knives not protruding as far as it ought to and every time it came around
it didn’t make as wide a cut as it should. Consequently I can tell how far that
lumber moved through the planer per revolution of these cutter heads. The
cutter head dressed the surface. I find in measuring that distance on the
lumber itself that that distance is regularly 93 hundredths of an inch.
Q.
What does that represent, 93 hundredths of an inch, what does that represent,
that distance? [2275] A. We call that revolution marks, it is a mark made
every time a certain knife comes around.
Q.
All right, sir. A. So this lumber passed through the planer at the rate of
93 hundredths of an inch for every revolution of the cutter head that dressed
this surface. I can also count that there are eight individual knife cuts
between those revolution marks, in each case. That means there were eight
knives in the cutter head that dressed that surface; and the same is true on
the other side of the board. Now, on the edge of the board it is different. The
edge of the board shows that the cutter head made one revolution in every
eighty-six hundredths of an inch that the lumber went through the planer;
eighty-six hundredths of an inch on the edge, and ninety-three hundredths of an
inch on the side; and that there were six knives in the cutter heads that
dressed the edges.
Q.
Could you tell that from the examination of the kidnap ladder rail that you are
talking about? A. Yes. I am talking about the examination of this ladder
rail.
Q.
These revolutions, these marks that you talk about, you are talking about marks
and revolutions that were made in machine planing of the lumber that you find
in the rail side, as I understand it? A. Yes.
Q.
Of the ladder? A. Yes.
Q.
All right. A. Therefore, having determined that this lumber passed through
the planer at ninety-three hundredths of an inch per revolution of the top and
bottom cutter heads, and eighty-six hundredths of an inch per revolution of the
side heads, which meant that the side heads were going faster, because the
lumber went all at the same rate of speed, and that there were eight knives in the
top and bottom heads, and six knives [2276] in the side heads,— now, from an
investigation of planers used in this section of the country on North Carolina
pine, which is the lumber used in the bottom rails of this ladder, from an
investigation of planers used there, I found that comparatively few planers are
used in that section of the country having eight knives in the top and bottom
heads and six in the side heads. The fact is I made a thorough canvass of all
planing mills from New York City to Alabama. There are 1598 altogether, and I
found only 25 firms that had a planer with eight knives in the top and bottom
cutter heads, and six in side heads. Two of those I could rule out because they
did not dress one by four stock, that size. I got samples from the other 23
firms, and I found that only one of those firms made revolution marks of the
same spacing as on the ladder rail. All the others made wider or narrower
revolution marks.
Q.
What firm was that? A. That was the M. G. and J. J. Dorn Company in McCormick,
South Carolina.
Q.
Were you there personally? A. Yes. I next visited their mill to see if I
could definitely determine whether they had dressed this lumber. And I found
that when they ran lumber through their planer with a certain sized feed pulley
on that planer it made revolution marks exactly like on that ladder rail.
Q.
Was that a standard utensil there? A. No. That feed pulley was not
standard.
Q.
It was not a standard pulley? A. No.
Q.
What kind of a pulley was it and how do you distinguish that particular pulley
from the standard pulley? A. That pulley had a diameter of 11 7/16
inch and that is not a standard size pulley for that machine.
Q.
Did it as the result of that pulley which is [2277] not standard make a
distinctly individualistic mark? A. Yes.
Q.
All right, sir. By the way, this picture that is in evidence, S‑218, which also
shows the Senator in there, Senator Dorn, does that show these cutter heads on
it? A. No, that shows the feed pulleys.
Q.
Feed pulleys? A. Used on that machine.
Q.
In that particular machine, and that particular mill. A. Yes.
Q.
All right. Is that the special pulley you are talking about? A. Yes.
Q.
The one that the Senator has his hands on. A. Yes.
Q.
All right. Now, having found that special pulley, that particular pulley, what
next? A. I found that that pulley was purchased in September, 1929;
therefore that stock in these two ladder rails must have been dressed between
October 1st, 1929, and the time of the kidnaping. I found that they had shipped
in all 45 car loads of lumber, consisting in whole or in part of 1 x 4 North
Carolina pine during that period, to 25 different firms, some firms receiving
more than one car load. Accompanied by Detective Bornmann I visited the various
firms who received lumber from the M. G. & J. J. Dorn Company during that
period. Now, this lumber in the bottom rails of the ladder showed some peculiar
defects, due to an irregularity in the cutting edge of some of the knives in
the machine. Knowing that these knives have to be re-sharpened periodically, I
knew that defect would not be found in all the lumber that was shipped out from
that mill.
Q.
In other words, you talked about 45 carloads, as I understand it? A. Yes.
Q.
Then you found that because it had to be [2278] sharpened from time to time,
all those 45 carloads would not show that distinguishing mark? A. That is
it.
Q.
Some of them would, is that it? A. Yes, sir.
Q.
Knowing that you started to trace it further? Tell us about it. A. I would
like to show what that distinguishing mark looks like. Here is an edge of the
bottom rail of the ladder and here is the edge of a board which I obtained from
the National Lumber & Millwork Company. You will notice these waves in
there, periodic waves, they are spaced exactly the same distance apart in the
two. The thing I have in mind particularly is a little shallow groove, a little
difficult to see perhaps, but you can see it in some places, here (indicating),
which occurs every so often. In fact, they are 86‑hundredths of an inch apart.
That was due to some irregularity in the edge of one knife, and I knew if I
could find a shipment in which that irregularity showed up, I could locate the
shipment from which these ladder rails were made.
Mr.
Wilentz: Just one minute. Will you please give this a number and also the one
we had a moment ago. Come over and mark it.
(The
two enlarged photographs referred to were received in evidence and marked
State’s Exhibits S‑244 and S‑245, respectively.)
Q.
As I understand it, the top piece is a piece from rail No. 13 of the ladder?
A. Yes.
Q.
The bottom is a piece of lumber which you [2279] obtained from the National
Lumber & Millwork Company, is that it? A. Yes.
Q.
When did you get that piece? A. That piece shown in the picture I got in
November, 1933.
Mr.
Wilentz: All right. Let’s have the last sentence of the gentleman before I
interrupted him, before I offered it.
The
Reporter: Yes, sir. (The reporter then read the last sentence of the witness’
testimony as follows: “That was due to some irregularity in the edge of one
knife and I knew if I could find a shipment in which that irregularity showed
up I could locate the shipment from which these ladder rails was made.”)
Q.
All right. A. After visiting a large number of the firms who had received
shipments of 1 x 4 North Carolina pine from the M. G. & J. J. Dorn Company
over that period, I found a sample of lumber at the yard of the National Lumber
& Millwork Company which showed exactly the same defect in the planing on
one edge as occurred on the ladder rail; and I also found that there was a
defect on the face of the board. In this picture—the top picture is a
photograph of one of the ladder rails in the bottom section and the bottom
piece is a photograph of a sample from the National Lumber & Millwork
Company. There is a periodic defect in the knife that shows up near one edge in
both pieces, also due to a defect in the knife that dressed that lumber.
Therefore,
having a defect in the planing on one edge and also on one face of this lumber
from the National Lumber & Millwork Company, which corresponds exactly with
that similar defect in [2280] the ladder rail, I was convinced that I had found
the yard from which this ladder, these ladder rails, were obtained.
Q.
And that was— You were brought to that conclusion and opinion in November,
1933? A. Yes.
Q.
Yes, sir. Now, did you then— These marks that you have indicated, these defects
that you have talked about with reference to knife and planer, did they come
from the planer in the mill of M. G. & J. J. Dorn Company, down South?
A. Yes; because the revolution marks on the face and edge of this lumber
from the National Lumber & Millwork Company are exactly like those made by
the Dorn Company, and that is the only mill I found that makes that kind of
revolution mark.
Q.
Yes. Now, in November 1933, did you then direct that an investigation be made
of the purchases, purchasers of lumber from that company? A. I— yes.
Q.
You say that you were then convinced that the ladder was made from lumber which
came from that company? A. Yes.
Q.
Now, later in December, 1934, did you search for another piece of lumber there?
A. Yes.
Q.
I want to show you Exhibit S‑233, and ask whether in December 1934, after
Hauptmann’s arrest, whether you didn’t get another sample of lumber from that
mill company? A. Yes, sir.
Q.
Is that it? A. Yes.
Q.
What was the purpose of that? A. To get additional samples.
Mr.
Wilentz: I think we have not marked this exhibit, so please will you give us a
number?
Mr.
Hauck: There is no objection.
[2281]
The Reporter: S‑246.
(Diagram
received in evidence and marked State’s Exhibit S‑246.)
Q.
Is there anything else on here? A. No, nothing further.
Q.
Nothing further? A. No.
Q.
Now will you tell us what next there is in this investigation that you made?
Will you tell us what the exhibit before you now is intended to represent?
Mr.
Wilentz: Will you mark it, please, Mr. Reporter?
The
Reporter: In evidence?
Mr.
Wilentz: Yes, I offer it. The Reporter: S‑247.
(Diagram
received in evidence and marked State’s Exhibit S‑247.)
A. This
exhibit is a photograph of a portion of one edge of rail 14, which is one of
the rails of the middle section of the ladder, and the other is a photograph of
a portion of rail 15, which is the other rail of the middle section of the
ladder. I noticed, when I had the ladder taken apart, that if I put those rails
alongside of each other and matched up one of the saw cuts made for these
recesses for the rungs, the others all matched up. It was just a perfect match
for all of these saw cuts; they matched up right straight across, one from the
other; which showed that those two pieces were clamped together when the saw
cut [2282] was made; showing that a clamp was used in making those cuts.
Q.
What do you mean by a clamp? A. Why, a clamp something like this clamp,
Exhibit No. 196.
Q.
Can you tell whether or not those were the clamps, or were they similar clamps?
A. I can’t tell. The clamp did not leave any mark on the wood, but neither
would that clamp.
Q.
When you say clamps were used for that purpose, are you referring to
instruments identical to this instrument, which is Exhibit S‑196—anything else,
A. Any one of those could have been used.
Q.
Well, you are referring to clamps of this description that are in evidence?
A. Yes.
Q.
S‑196? A. Yes.
Q.
They are all marked the same number? A. Yes.
Q.
Is that the purpose of this exhibit? A. Yes.
Q.
247? A. Yes.
Q.
I will hold this out for a minute.
Mr.
Wilentz: Now will you give us a number for this so that we can refer to it more
easily? I think it is 248.
(Photograph
received in evidence and marked State’s Exhibit S‑248.)
Q.
What is the purpose and usefulness of 248, Mr. Koehler? A. This picture
shows the recesses in rail 17 and rail 16 and it shows the saw cuts that were
made in cutting these recesses.
Q.
Show us the rails, will you, please, the actual rails that you are talking
about, if you can. A. Rail 17, which is on top, is the right hand rail of
the top section of the ladder, and rail 16, which [2283] is at the bottom of
the picture, is the left hand rail of the top section of the ladder.
Q.
Show us the recesses that you are talking about. A. These are the recesses
for rungs (indicating on photograph), they are magnified, of course.
Q.
Show us where they are on the ladder. A. This recess is this one here
(indicating); it is taken from the other side, but that is the same one as you
see here, only going in the opposite direction.
Q.
Show us where the saw you say continued beyond the recess. A. It can be seen
on close inspection of this rail, the saw cut went in deeper than necessary.
Q.
All right, sir. Go back to the picture, please. A. Because portions of
these saw cuts showed.
Q.
Just a minute. Show us the others, please. Mr. Pope wants to see. A. That
this recess here, you can see the saw cut there made deeper than necessary.
Mr.
Pope: What is that?
The
Witness: It is rail 17.
Q. And the other one is rail 16?
A. Yes, sir.
Q. Both of them sections of the
ladder? A. Yes, sir.
Q.
All right. A. Now, because the saw cuts show, it is possible to determine
the width of the saw cuts that were made in cutting out these recesses and I
determined that the width of these saw cuts, not only in these four, but in
other places, ranged from 35 to 37 thousandths of an inch.
Q.
What does that represent again, the 35—A. Well, the saw that was used in
making these [2284] saw cuts made a cut 35 to 37 thousandths of an inch wide.
Q.
Was there a saw in Hauptmann’s tool chest that is in evidence that made a
similar size cut? A. Yes. I tried out all the saws and found two saws in
that tool chest that will make cuts of that width.
Q.
All right, now. That is the purpose of this exhibit, I take it. A. Yes.
Q.
Just for the moment, Exhibit 242 and also Exhibit 243 show some cutter head knives
and show a piece of wood being planed by a machine? A. Yes.
Q.
The drawings there are of the cutter heads upper and lower, feed rolls and so
forth? A. Yes.
Q.
Is that a correct reproduction of those cutter head and feed rolls of the Dorn Company
or is it just for illustration? A. No, it is a diagrammatic drawing with a
lot of details left out.
Q.
For the purpose of illustration? A. Yes.
Q.
All right, sir. Does it correctly show the number of knives that were used in
the Dorn machine? A. Yes, the top and bottom.
Q.
The top and bottom and the specific position. Can you tell us what this exhibit
is intended to portray and explain it? A. In examining this ladder, I
tried to find out as far as I could what sized lumber was used in its
construction. Now these Ponderosa pine rungs are two and three-quarter inches
wide and they were planed on one edge as I said. That means that they
originally were wider. Now, the only way I could determine how wide the board
was from which those rungs were made was to see if they would match together in
any way, and I found that the four rungs of the bottom section of the ladder,
and the four rungs of the middle section of the ladder—
[2285]
Q. That is, section 1 and 2? A. Yes.
Q.
Yes. A. —could be matched together, end to end and side to side, by means
of their grain, so as to show without any doubt that those eight rungs were cut
from one board, so-called one by six Ponderosa pine. The board was first
stripped lengthwise, and then the edges were planed, because the hand plane
marks run consecutively from one rung to the next one on those edges; and after
they were planed, then the strips were cut into four pieces of the proper
length.
Q.
Now, just one minute.
Mr.
Wilentz: Will you please mark this. if there is no objection.
The
Reporter: S‑249.
(Diagram
received in evidence and marked State Exhibit S‑249.)
Q.
Let me ask you then, Mr. Koehler, is it your opinion and is it your testimony
that the rungs of Section 1 and 2 were at one time all a part of one continuous
piece of lumber? A. Yes.
Q.
And that they were cut up, you mean? A. Yes.
Q.
In the manner that you have indicated? A. Yes.
Q.
This is a drawing that you have made of the floor plan of the attic.
A. Yes.
Q.
Hasn’t it already been explained in photographs? A. Except the photographs
don’t show a full view of the floor. I made this drawing to show the entire
floor plan, so the parts of it could be better determined.
Q.
Is this drawn to scale? A. Yes, sir.
Q.
Correctly and accurately to scale? A. Yes.
[2286]
Q. Is this a correct and accurate floor plan of the attic at 1279 East 222nd
Street, New York City. A. Yes.
Q.
You say that this shows the entire floor as distinguished from parts of the
floor shown by photographs? A. Yes.
Q.
Did you draw this yourself? A. Yes.
Q.
It is mathematically correct? A. Yes.
Q.
The distances and dimensions between joists and pieces of wood are correct?
A. Yes.
Q.
As it was before the S‑226 was removed? A. Yes.
Q.
When you say lath and plaster, I take it you mean lath and plaster between each
one of those? A. Yes.
Mr.
Wilentz: I don’t know what purpose it serves, but probably it will be helpful.
I offer it.
The
Witness: I could explain it some more in detail if you want me to.
The
Court: Any objection, Mr. Pope? Mr. Pope: No, sir.
The
Court: It will be marked in evidence.
The
Reporter: Exhibit S‑250.
(The
chart referred to was received in evidence and marked State’s Exhibit S‑250.)
Mr.
Pope: I would like to know what scale it is drawn to, that is all.
[2287]
The Court: Ask him that.
The
Witness: One inch equals one foot.
Q.
One inch equals one foot, is that the scale? A. Yes.
Q.
Now will you please explain it then?
Mr.
Pope: One inch to a foot.
A. When
I got into the attic I noticed that only the middle portion of the attic had a
floor in it and that floor is made of one by six matched North Carolina pine. I
also noticed that nearly all of the pieces of lumber used on that floor
extended clear from one end, from the east wall to the west wall.
Q.
Were there any exceptions? A. There were a few exceptions. Here this hole
in the floor which goes into the closet, you know, through which access is
obtained to the attic necessarily had to—it was necessary to cut out, cut
through three of those boards. There was one board which did not go all the way
through as a continuous piece, but another piece was spliced in there.
Q.
Is that indicated by the mark that you have just pointed to? A. Yes.
Q.
All right. A. And here is another one, and all the rest went continuously
from one end to the other, except this board, along the south side of the
floor, which extended only a little over halfway across.
Q.
Is that the board that we have in court, which is indicated as S‑2261
A. Yes, that is this one here.
Q.
Yes, sir. 226. A. Yes, sir.
Q.
All right.
Q.
I notice some dots on these joists immediate- [2288] ly following S‑226. What
were those dots intended to indicate? A. Those are nail holes I found in
the joists as we made an inspection of the attic.
Q.
Did or did not the nail holes, the cut nails that you put in 16, rung 16, or
rail 16 of the ladder, fit those nail holes, the four that you refer to? Point
out the four. A. 1, 2, 3, 4. (Indicating.) This hole does not show in the
ladder because of a recess—
Mr.
Pope: Never mind because.
A. —for
the rung which is located right there.
Q.
A recess for the rung? A. Yes.
Q.
Show me the recess of the rung. A. This hole corresponds with that hole
(indicating first on ladder, then on diagram); this hole corresponds to that
one; these two correspond to those two, and this one—I am mistaken there about
the recess on the rung. It was past the edge of this rail, it didn’t come on
the rail.
Q.
Past the edge? A. Not at a recess; at another place.
Q.
Past the edge? A. Yes.
Q.
Now let me ask you this— A. You will notice that that nail hole is
indicated close to this board here. It is nearer to this board than the other.
Q.
Is it nearer to the edge than any of the other nails? A. Yes.
Q.
I noticed by the photographic exhibits that when you placed the rail of the ladder
along these, joists so as to have the nails fit, that there was some room
between the last floor board and the rung of the ladder—not the rung of the
ladder, the rail of the ladder. A. Yes.
Q.
That is to say, the rail of the ladder didn’t seem to be as wide as S‑226.
A. No.
[2289]
Q. Possibly I can have it here. Will you explain, please, the reason for that?
A. Well, as I say—
Q.
Please look at S‑228 and then tell us why it is if the rail of the ladder was a
piece of S‑226, why it is that one is wider than the other. A. All the
other rails of the ladder are so-called one by four stock, and this one was
dressed down the same width which is also indicated by the fact that both edges
are hand-planed; in other words, it is ripped down from a wider board so as to
be the same width as the other rails in the ladder.
Q.
By hand plane you say? A. Yes.
Q.
Are we to understand then that it originally had the same width?
Mr.
Pope: Please let him testify.
Mr.
Wilentz: I thought I was doing it. I take it that we are saving time. I don’t
want to offend counsel, but if that is offensive we will stop there with that
question anyway.
Q.
What I want you to do, please, is to put it in as simple language as possible,
your explanation for the difference in width between the rail of the ladder 16
and S‑226. The other part of the attic floor? A. That the floor—
Q.
Had the rail ladder been planed? A. Yes, on both edges.
Q.
Hand planed? A. Hand planed.
Q.
Was the other, S‑226, hand planed? A. No, sir; it was tongued and grooved
on both edges.
Q.
Did you go up to this—of course, you went up to the attic, didn’t you?
A. Yes.
Q.
Just get back for one moment and we will [2290] see if we can describe this
trip that you took up to the attic. Will you just sit down, Mr. Koehler? I
think there will probably be enough till four-thirty.
Q.
How do you gain entrance and how did you gain entrance to this attic? A. I
went on the second floor of the house at 1279 East 222nd Street, and there is a
closet opening off the hall in the second story of the house, and the ceiling
of the closet is open, and it is through that hall in the ceiling that access
is gained to the attic by means of a ladder.
Q.
Are there steps up there? A. No.
Q.
How do you get up? Do you— A. You have got to have a ladder or else climb,
step on the cleats for the shelves which are in the closet.
Q.
Or, I suppose, put a chair or something in there? A. Pretty hard to do it
with a chair. It wouldn’t be high enough.
Q.
So that, as I understand it, you climb on the cleats of the shelves,—is that
what you call it? A. That is one way, yes.
Q.
Or you put a ladder in? A. Yes.
Q.
Now, having done that, put the ladder in, when you get up to this opening, do
you have to lift yourself on it? A. Yes.
Q.
That is, is there any way of walking up there from—or do you have to lift
yourself up even after you get up there? A. Well, if you had a long enough
ladder you wouldn’t have to.
Q.
In other words, if the ladder protruded into the attic— A. Yes.
Q.
Then you could walk off? A. Yes.
Q.
But it was right up to the edge or below the edge? A. No, an ordinary
stepladder doesn’t go high enough.
Q.
An ordinary stepladder, after you got to [2291] that, you would have to lift
yourself up: is that it? A. Yes.
Q.
Did you see the door that was there, to close that entrance? A. Yes.
Q.
What sort of a door was it? A. Why, just a few pieces of board which were
the same kind of material as the rest of the floor, with a couple of cleats
nailed on, and that fit right in the opening.
Mr.
Wilentz: Now, if your Honor please, I take it that with the extent of this
examination on direct, that counsel has surely overlooked one or two things,
and since it is so close to the recess hour for the day, may we recess now and
we will examine our testimony to see if there aren’t a few questions that we
have probably omitted, and except for that and subject to that, we will be
through with the witness.
The
Court: The people will remain seated in the courtroom where they are now until
the jury has retired. The jury may retire now and return tomorrow morning at
ten o’clock.
Mr.
Wilentz: If your Honor please, .if your Honor has any other announcement, may
we ask your Honor to ask the audience to keep away from this part of the room
until we have removed these exhibits safely together. We don’t want to lose an
exhibit; whereas, if they come up here we might not be able to do it.
The
Court: Yes, perhaps the officers better look after that.
[2292]
(The jury retired.)
The
Court: I am requested by counsel to request that the audience will refrain from
coming up here where the exhibits are, because the lawyers are going to try to
collect their exhibits and they do not want to be interfered with by people who
are crowding in, so the people will please observe that suggestion. Now the
prisoner is remanded to the custody of the sheriff and he may retire.
(The
defendant retired in the custody of the sheriff.)
The
Court: The audience may now retire and we will adjourn until tomorrow morning
at ten o’clock.
(
Whereupon at 4.29 p. m. an adjournment was taken until 10:00 a. m. January
24th, 1935.)
[2293]
Opening of Seventeenth Day
STATE vs. HAUPTMANN
Flemington, N. J., January 24, 1935.
SEVENTEENTH
DAY
Present:
Hon. Thomas W. Trenchard
Appearances:
Mr. Wilentz, Mr. Lanigan, Mr. Peacock, Mr. Large, For the State.
Mr.
Reilly, Mr. Fisher, Mr. Pope, Mr. Rosecrans, For the Defendant.
(The
jury was polled and all jurors answered present.)
(10:27
a. m.)
ARTHUR KOEHLER resumed the witness stand:
Direct Examination (continued) by
Mr. Wilentz:
Mr.
Wilentz: If your Honor please, may we first inform the Court that Prosecutor
Hauck is absent because of illness today.
[2294]
The Court: I am sorry about that.
Q.
Now, Mr. Koehler, yesterday you spent some time with us about these pieces of
lumber and your exhibits; particularly you explained the relationship, as I
remember it, between Rail 16 and the board in the attic floor, which is known
as S‑226, and then you were telling us about the lumber which you traced from
South Carolina to The Bronx lumber yard. The rail 16, was that a part of the
lumber that came from South Carolina in this shipment that you talked about?
A. No.
Q.
That is not a part? A. No.
Q.
The rungs of the ladder—I think you called it Ponderosa pine? A. Yes, sir.
Q.
Was that a part of that shipment? A. No.
Q.
That was different, was it? A. Yes.
Q.
What was it that was a part of the shipment that you traced to the Bronx lumber
yard? A. Just the two bottom rails of the ladder.
Q.
I see. Now there are other parts of this ladder, lumber, that are not a part of
the shipment? A. Yes.
Q.
Or not a part of the attic? A. Yes.
Q.
So far as you know? A. Yes.
Q.
What kind of wood, for instance? A. There are three Douglas fir rails in
the ladder.
Q.
Three Douglas fir rails? A. Yes.
Q.
Yes. A. And the Ponderosa pine rungs are not a part of that shipment.
Q.
All right, sir. So that it wasn’t your intention at any time, was it, to
indicate that rail 16 was a part of the wood, the one by fours that came from
the south? A. No.
Q.
In that shipment? A. Not in that shipment.
Q.
Not in that shipment. When it came, why, of course, you don’t know? A. No.
Q.
I think I have just one more question and [2295] that will be all with me: You
told us, I think, that you were in charge of the Laboratory at Madison,
Wisconsin. A. I am in charge of a division in this Laboratory, Forest
Products Laboratory at Madison, Wisconsin.
Q.
That is the correct name, Forest Products Laboratory? A. Yes.
Q.
And that Laboratory is specifically for the purpose of identification of woods,
is it not? A. No. It covers more than that. That is my division.
Q.
That is your division? A. But it covers all kinds of research on wood.
Q.
How many laboratories of that kind are there in the United States of America?
A. Just the one at Madison.
Q.
Just that one? A. Yes.
Mr.
Wilentz: At this time, your Honor please, I want to offer in evidence the
automobile in which Mr. Hauptmann was riding on the day of his arrest for the
purpose of identifying it as his automobile on that day, bearing the same
license number as it did the day of the arrest and we have it here within the
court square so that if the weather permits it before the case is concluded,
the jury may be able to examine it.
Mr.
Reilly: I don’t think it is material or competent, the automobile he was
arrested in, two and a half years after this alleged murder.
Mr.
Wilentz: Well, is there any objection to the formality of the proof first?
Mr.
Reilly: No.
[2296]
Mr. Wilentz: So that we may discuss it from the material point of view.
Mr.
Reilly: The fact remains he has an automobile and it is true he was arrested in
his automobile.
The
Court: I suppose that it is competent to establish, if you can, the identity of
the automobile in which some of the witnesses have testified the defendant was
driving. Is that the point?
Mr.
Wilentz: I think that it may or may not be a circumstance for the jury to
consider when they see and if they see the car. The purpose of the exhibit at
this time is to show that this car was operated and owned by him and in his
possession at the time of his arrest, just as we show a picture of his home, if
our Honor please, as a circumstance connected with his possession of various
things. And it may or may not, depending upon the jury’s point of view.
Mr.
Reilly: You mean the question of wealth?
Mr.
Wilentz: No, not on the question of wealth, the size of the car, the
description that has been given by witnesses, the type of car itself.
The
Court: Have you the photograph of the car?
[2297]
Mr. Wilentz: Yes. Will there be an objection to the photograph?
Mr.
Reilly: I think not, if it is of the car.
Mr.
Wilentz: Here is a photograph (handing photograph to Mr. Reilly). (Counsel
confer.)
We
offer this picture as being a picture of the car which Mr. Hauptmann owned and
operated on the day of his arrest, with the exception that there was a trunk on
the back of the car which isn’t revealed here, which trunk was flush against
the back; is that it, Mr. Fisher?
Mr.
Fisher: That trunk would go flush with the back, that is right.
Mr.
Wilentz: Flush to the back.
The
Court: Well, I suppose—
Mr.
Wilentz: There is no objection to it.
The
Court: No objection?
Mr.
Reilly: No.
The
Court: It is admitted then that that is a correct likeness of this car, with
the exception of this trunk which was attached, and in all the circumstances it
will be admitted in evidence.
The
Reporter: S‑251.
(The
photograph of the car was received [2298] in evidence and marked State’s
Exhibit S‑251.)
Q.
Now, Mr. Koehler, have you seen this automobile, the automobile shown by this
picture? A. Yes.
Q.
Showing you exhibit S‑251. When you saw the automobile do you remember whether
you observed whether it had the New York license on it? A. It had a New
York license plate on it.
Q.
Yes. I take it that you don’t remember the number. A. I made a note at the
time. I could refer to it.
Q.
Have you got the note with you? A. Yes.
Q.
All right. A. (After referring to memorandum book.) 4U13-41 1934.
Q.
All right. Now, did you take this ladder, Exhibit S‑211, and attempt to fit it
into that car? A. I did.
Q.
Did it fit in the car? A. Yes. When I took the three sections assembled
and nested together, they fit in on top of the front and rear seats, and there
were several inches to spare.
Q.
Do you mean that when you put them together like this, put the three sections
together (illustrating) — A. Yes.
Q.
That is, one within the other? A. Yes.
Mr.
Wilentz: Take the witness.
Cross-examination by Mr. Pope.
Q.
Mr. Koehler, when you fitted the ladder in the car did you lay it on the top of
the seats? A. Yes.
Q.
And did one end of the ladder fit on top of the rear seat, on top of the rear
seat? A. You could lay it down on the top of the rear seat, yes.
[2299]
Q. You could lay it down on the top of the rear seat. How near did the other
end of the ladder come to the windshield? A. About four inches, four or
five inches.
Q.
So that when you laid it in the car with one end against the rear of the car, on
the top of the seats, the front end of the ladder was in the neighborhood of
four or five inches from the windshield on the inside A. Yes.
Q.
And lying in that position in the car could be readily seen by anyone on the
outside who cared to look in the car, I suppose A. Yes, unless it was
covered up.
Q.
Unless it was covered up. Now, you have told us that you have testified in
numerous cases, among them you mentioned one, a murder case, that you testified
in in Wisconsin. What was the point involved in that case, Mr. Koehler, in your
testimony? A. A home‑made bomb was sent through the mails to a drainage
Commissioner and when the Commissioner opened the package it exploded and his
wife, who was standing nearby, was killed.
Q.
Now, what portion of the bomb did you examine and deal with? A. The wood
portion.
Q.
Well, the box that it was contained in? A. No, the hollow cylinder or
cartridge you might call it, forming part of the bomb.
Q.
I see. Now the other cases that you have testified in were cases brought by
divisions of the United States Government against parties charged with
misbranding? A. Not exactly. They were hearings before the Federal Trade
Commission.
Q.
Yes. A. To decide what proper name should be used for certain kinds of
lumber.
Q.
Then the purpose of the hearings was to determine what would be approved as the
proper [2300] designation of particular kinds of lumber? A. Yes.
Q.
And under what particular names it should be marketed? A. Yes.
Q.
And there were how many instances of that kind, roughly, that you testified in?
A. Two.
Q.
And one of those was a mahogany case? A. Yes.
Q.
And the other was a native wood? A. Yes, Ponderosa pine.
Q.
Ponderosa pine. Now we have the two cases, we have the one murder case and then
we have the instances in which you were before the Federal Trade Commission.
Now the other cases in which you testified, they were what kind of cases,
misbranding? A. No, they were cases where wood failed in service.
Q.
That is the wood failed because it wasn’t strong enough or because it wasn’t
fresh enough, or what? A. That was the question, whether it was strong
enough or whether it was overloaded.
Q.
I see. Then in those cases your function was, I suppose, to testify to the
tensile strength or carrying load of the wood involved. A. Not entirely.
My function was to testify as to the kind of wood and its quality, as to
whether it was abnormal or not.
Q.
And was that before the Federal Trade Commission? A. No.
Q.
That was what: before some court? A. Yes.
Q.
That was a civil suit? A. There were two of them.
Q.
Two civil suits? A. Yes.
Q.
Now, were there any others? A. I testified in a case in Cincinnati, a
civil suit.
Q.
And is that the case in which there was a dispute between the buyer and seller?
A. Yes.
[2301]
Q. As to whether the lumber received by the buyer conformed to the
specifications? A. Yes.
Q.
So you in that case undertook to identify and to classify the lumber that had
been the subject of the sale? A. Yes.
Q.
And do you recall what kind of lumber was involved in that case? A. Long
leaf pine.
Q.
Long leaf? A. Yes.
Q.
North Carolina pine? A. Well—
Q.
Or long leaf fir pine? A. It comes from the Gulf States.
Q.
From where? A. From the Gulf States.
Q.
And that was a dispute as to whether it was long leaf or short leaf pine?
A. Yes, yes.
Q.
Now, have I covered practically your experience in that respect? A. There
is only one other case I was called on. I don’t remember whether I actually
took the stand or not, and I don’t remember the case. I can’t remember whether
I took the stand, although I know I went to the court.
Q.
I rather think you told us—if so, I have forgotten—how many years you have been
connected with the Department. A. Yes; 21 years.
Q.
21 years. And did you go direct to the Department from school? A. Yes.
Q.
Now, you have never undertaken to identify chisel marks or plane marks upon
lumber in court before, have you? A. In court? No.
Q.
This is the first time you have been called upon to testify to that?
A. (Nodding head.)
Q.
You are shaking your head. Would you mind saying yes or no? A. Will you
read the question, please?
Q.
I want it on the record, that is reason. A. Yes.
(The
pending question was read as fol- [2302] lows: “This is the first time you have
been called upon to testify to that?”)
A. Yes.
Q.
Now you demonstrated to the jury yesterday that one of the notches in the rail,
notch recessed for the purpose of allowing the rung to be put in there, after
being sawed down on the side had been cut out with a three-quarter inch chisel?
A. Yes.
Q.
Please, so we get it on the record. The notch referred to on the rail of the
ladder could well have been made by any standard three-quarter inch chisel,
couldn’t it? A. Yes.
Q.
In other words, a three-quarter inch chisel is not only a common chisel, but it
is one of the standard sizes, is it not? A. Yes.
Q.
And whether it be a chisel made by the Stanley Company, by the Goodell, Pratt
Company, or one of the common cheap cast steel chisels, it is the same size and
functions in the same manner? A. Yes.
Q.
You were shown by the Prosecutor three chisels, one, I believe you said was a
quarter inch chisel, the other was a half inch chisel and the third one an inch
or a little larger, at any rate it was not a three-quarter inch chisel.
A. No.
Q.
Were you shown the set of Stanley chisels belonging to Mr. Hauptmann and which
were in his garage at the time of his arrest? A. A set of Stanley chisels?
Q.
Yes. A. No.
Q.
It was Stanley, wasn’t it? So you don’t know then whether among the set of
Stanley chisels there was a three-quarter inch chisel? A. No, I don’t.
Q.
And if there was, you did not try to match it in this chisel mark? A. No.
[2303]
Q. You came into this case first in the month of May, 1932, did you not?
A. Yes.
Q.
Do you remember what date? A. It was the 25th or 26th.
Q.
Well, that is the latter part of May? A. Yes.
Q.
That was nearly three months after the ladder was found? A. Yes.
Q.
And of course you are depending entirely on what somebody else told you as to
the conditions of the ladder at the time it was found? A. Yes.
Q.
And its condition at the time it was first shown to you? A. That I
observed myself.
Q.
Well, now, let’s see. You have those rails numbered, I suppose, but take the
section of the ladder that has the piece of North Carolina pine railing in it.
Can you tell me what kind of wood is in the other section, the other railing?
A. You mean—
Q.
Of the same section? A. Do you mean the top section? There are three North
Carolina pine rails in the ladder.
Q.
Well, I am referring to the one that you recognized as a part of this attic
floor. That is the section that I had reference to. A. The other rail in
this ladder is Douglas fir.
Q.
Douglas fir? A. Yes.
Q.
And you don’t know whether the right hand rail of the ladder was originally
Douglas fir or not, do you? A. That is—
Q.
All you know is— A. That is the Douglas fir.
Q.
The what? A. The left hand rail is not Douglas fir.
Q.
Beg pardon? A. The right hand rail is Douglas fir: the left hand is North
Carolina pine.
Q.
Well then, I will just change my question and reverse it. I thought just the
opposite. You [2304] are probably right. I suppose you call the front part of
the ladder would be the rungs facing you, nearest to you, would it not?
A. Yes.
Q.
I will reframe the question. Referring to the section that has a piece of flooring
which you thought might have come from the attic, which I understand is the
left-hand rail of the section? A. Of the top section of the ladder.
Q.
Of the top section? A. Yes.
Q.
You do not know whether the ladder, when it was originally found, contained a
piece of Douglas fir or not, in the place of the North Carolina pine? A. I
didn’t see it when it was originally found.
Q.
No. Now do I understand that there are two other rails in the sections of the
ladder made of North Carolina Pine? A. Yes, the two bottom rails of the
ladder are North Carolina pine.
Q.
And when you speak of rails do you mean what I refer to as the runners, running
up and down? A. Side pieces, yes.
Q.
That is the brace? A. Yes.
Q.
And then the cross sections are the rungs? A. They are the rungs.
Q.
Well, would you mind showing me the rails that are made up of North Carolina
pine, outside of the one that you have already been discussing?
A. (Stepping to the ladder) This is the bottom section of the ladder, and
both of those rails are North Carolina pine.
Q.
But it is a different quality, is it not, from the board that was found in the
attic floor? A. It is a common grade of lumber, they are all three of them
a common grade of lumber.
Q.
I didn’t mean that, Mr. Koehler. I just asked you if it isn’t a different
quality or a better quality. A. What do you mean by quality then, if you
don’t mean the grade?
[2305]
Q. I think you lumber men do call it “grade” that is the term you use. It is a
better grade, isn’t it? A. It has no knots in it, if that is what you
mean, or just a small knot, whereas the other piece has several knots in it.
Q.
Mr. Koehler, I suppose that when a man accustomed to dealing with lumber speaks
of the grade or quality of the lumber that he usually has reference to its
quality and its grade the same as you would if you were speaking of silk or
plush or wool or anything else. Now I am asking you, is not the railing that
you have just shown me of a better grade of North Carolina lumber than the
grade of lumber that was found on the attic floor? A. I will have to
explain that because—
Q.
Can’t you answer yes or no? A. No, I can’t, because I don’t know what you
mean by quality.
Mr.
Wilentz: Take your seat, please, and explain it.
Mr.
Pope: Wait a minute, Mr. Wilentz. If you want to object you may object to the
Court.
Q.
Do you want me to explain what I mean by the quality? A. Yes.
Mr.
Wilentz: Just one moment.
Mr.
Pope: Do you object to the question?
Mr.
Wilentz: No. I object to you interrupting the witness until he has a chance to
answer the question with an explanation.
Mr.
Pope: Thanks. This is cross-ex- [2306] amination and whenever I ask a question
that may be properly answered yes or no, as the cross-examining counsel, I am
entitled to a categorical answer, yes or no.
The
Court: Well, the witness said that he could not answer your question yes or no.
He said “I will have to explain.”
Mr.
Pope: And I am glad to let him do it.
Mr.
Wilentz: All right.
Mr.
Pope: Now he asks me what I mean by quality.
Mr.
Wilentz: I submit that the witness ought to be permitted to answer the
question.
Mr.
Pope: Well, I am the witness: he is asking me.
The
Court: Oh, no, Mr. Pope; you are not the witness.
Mr.
Wilentz: I ask the Court—
The
Court: Mr. Koehler is the witness. He said he couldn’t answer yes or no. He
said, “I want to explain.” You agree that he ought to explain.
Mr.
Pope: Yes.
The
Court: Then he may explain.
[2307]
Mr. Pope: Now he asks me what I mean by quality.
The
Court: Ignore that.
By
Mr. Pope:
Q.
All right. ‘Go ahead, Mr. Koehler. Go ahead, in your own way. A. That word
“quality” covers a number of things. It might cover the appearance, so far as
being beautiful or not is concerned, it might cover the strength of the wood,
it might cover its ability to keep from warping, and a number of other things.
Now, the word “grade” usually refers to the presence or absence of defects in
the lumber, such as knots and cracks and pitch-streaks and such.
Q.
Well— A. The word “grain”—
Q.
Well, I will divide the question then. A. Yes.
Q.
Now, speaking as a man, for instance, who was engaged in the carpenter
business, and the building trade,—if he went to a lumber yard and he found the
two grades of lumber which you have produced here from the lumber yard, the
one, the North Carolina pine flooring, underflooring, or whatever—roofers, and
the North Carolina pine railing in there. Would the lumber dealer charge him
more for the one grade than the other? A. In that case not.
Q.
In that case not? A. Because they would be classified the same, although
there is a variation in a grade.
Q.
So that you think that the grade of North Carolina pine that you have referred
to in alp other rails of ladder equals to the grade of North Carolina pine that
was found on the attic floor? A. Yes, speaking commercially.
[2308]
Q. Now I will ask you as to the quality of the pine that was found in the attic
floor as compared with the North ‘Carolina pine used in the rails of the
ladder; excepting of course the one that we have already been referring to.
A. Now what quality do you refer to?
Q.
I just simply want you to tell the jury the difference in the quality.
A. I can’t answer that question unless it is specific.
Q.
Is there no difference in your judgment in the quality of the two pieces of
lumber? A. In some respects there is and in some there isn’t.
Q.
In any respect. A. Yes.
Q.
Then tell us what those differences are, in the respects that you have in mind.
A. The two bottom rails of the ladder do not contain as large knots as the
rail cut—as the North Carolina pine rail in the top section of the ladder.
Q.
And in that respect it is better quality? A. For certain purposes it would
be considered better when it is free from knots.
Q.
Well, it is better for any purpose, isn’t it, if it is free from knots?
A. I will have to explain again, to answer that question.
Q.
You may. A. This North Carolina pine is lumped in one large grade, which
includes lumber with considerable knots in, and some with very few, and
occasionally a piece without a knot in. For some purposes it all goes in for
the same use and no discrimination is made. Now if a person wanted to be very
choice and pick out a piece of lumber, he could pick one out with fewer knots
in it than some of the other lumber has, in that classification. So for some
purposes it makes some difference in that for other purposes it would not make
any difference.
Q.
But the fact still remains that a piece of North Carolina pine that is free
from knots is of [2309] a better quality of board than a piece of North Carolina
pine that has one, two, three, four, five, six or seven knots in it like that?
A. It would be considered so for some purposes and for others it wouldn’t
make any difference.
Q.
Of course it wouldn’t make any difference on a rough attic floor, would it?
A. No.
Q.
Where there would be no wear on the knots and they wouldn’t be so apt to break
out? A. No.
Q.
It probably wouldn’t make much difference for sheathing the outside of a
building? A. No.
Q.
But for other purposes, where the wood was to be exposed or seen, or where it
was to be used where strength was needed, it would make some difference,
wouldn’t it? A. Yes; if the knots were large enough to affect the
strength, it would.
Q.
Well, except small knots, the presence of, knots in a board does not affect the
strength of the board, does it? A. Yes, sir.
Q.
They are weaker where the knots are? A. Yes.
Q.
More likely to break? A. Yes.
Q.
Is there any difference between North Carolina pine, South Carolina pine and
Georgia pine? A. So-called North Carolina pine comes from all three of
those States and from Virginia; so North Carolina pine coming from those States
does not show any particular difference. There is some long leaf pine that
grows in Georgia, but that is a different matter.
Q.
I am not referring to long leaf pine. This is not long leaf pine, is it?
A. No.
Q.
May I ask you to step here just a moment.
Q.
Has this rail a number (indicating) A. Yes, that is No. 17.
Q.
And was numbered 17? A. Douglas fir.
Q.
That is Douglas fir, and where did that [2310] come from? A. West Coast,
or rather west of the Rocky Mountains.
Q.
That is between the Rocky Mountains and the High Sea area in that section?
A. It might have come anywhere up to the Pacific Coast.
Q.
And did you trace that rail? A. I found one mill and only one mill that
could have dressed that rail.
Q.
Now, that is Douglas fir? A. Yes.
Q.
Now, has this rail a number? A. Yes, that is 14.
Q.
Then what is that? A. That is Douglas fir.
Q.
And has this one a number? A. Yes, that is 15.
Q.
What is that—and that is Douglas fir, too? A. That is Douglas fir, too.
Q.
Here we come to the yellow pine, is that what it is? A. North Carolina
pine.
Q.
North Carolina pine. And what is that number? A. 12.
Q.
And this one? A. 13.
Q.
Did you trace those? A. Yes.
Q.
Where? A. Traced them to the M. G. & J. J. Dorn Lumber Company,
McCormick, South Carolina. From there I traced to the National Millwork &
Lumber Company in the Bronx.
Q.
You mean that you believe they are a part of the same shipment? A. Yes.
Q.
That you have been referring to? A. Yes.
Q.
Now, are those 1 x 4’s in their natural condition? A. Yes.
Q.
Now, coming back to the piece of yellow pine number 15. Is that it? A. 16.
Q.
Number 16—. Do you think that is as it was shipped from the mill or has that
been ripped and planed? A. It has been ripped and planed.
Q.
Well, at any rate I suppose about as far as you can go is to say that it has
been planed. A. [2311] No. There are saw marks on a few places which were not—
Q.
Rip saw marks? A. I can’t tell whether it was done by rip saw or cross cut
saw. It could be done by either.
Q.
Taking the structure of this ladder as a whole would you say that that was
built by a mechanic or by an amateur or even less? A. Do you mean by
“mechanic” a carpenter or a machinist?
Q.
Well, I didn’t know that machinists built ladders, sir, so of course I am
referring to a man who attempted to build a piece of, a structure out of wood
and I don’t refer to a jeweler or machinist as a mechanic who would attempt to
use wood. What I want to know is do you think it was built by a mechanic?
A. No.
Q.
It is a rather poor job, isn’t it? A. Yes.
Q.
Of construction? A. Vies.
Q.
Even the sawing of the notches is poorly done, isn’t it? A. Yes.
Q.
I didn’t mean to be unkind when I spoke about the mechanics; didn’t mean that.
Now may I ask you what this cross rung No. 11 is up there? A. That is
Douglas fir.
Q.
And that comes from the West Coast? A. Yes.
Q.
Was the lower piece of No. 11 in its position or was it broken out at the time
this section of the ladder was first shown to you? A. When I first saw
that ladder that was missing. I never saw that piece.
Q.
In other words, No. 11 was in the same condition that it is today? A. Yes.
Q.
When you first saw it? A. Yes.
Q.
You spoke of the two pieces having been held together, and I think you told us
yesterday that they might have been held together while they [2312] were being
planed by a pair of clamps, such as was produced in court yesterday?
A. Yes.
Q.
That you were not able to discover any prints of those clamps on the rails,
were you? A. No.
Q.
And they might also have been held together in a vise, might they not?
A. Yes.
Q.
And you discovered no vise marks? A. No.***
Q.
It has been testified that two sections of this ladder, namely, this one here
which is broken, and the next section that fits into it could be used and was
not used but was actually put together and put up against the side wall of the
Lindbergh home, the two sections together, and the officer told us that when so
placed against the side wall that the top round was 30 inches below the window
sill. From your knowledge of wood, would you think that a ladder constructed as
this one is, or referring specifically to this particular ladder, would hold
the weight of a man 175 to 180 pounds under those conditions? A. Yes, I
think it would.
Q.
And could he go up and down readily without the ladder breaking? A. He
might.
Q.
He might.
Q.
The nearer the rounds are together, the stronger the ladder and the less likely
to break under use, is that correct? A. No. I wouldn’t say that the
distance between the rungs affects the ladder except possibly that when a man
makes a long step it gives more of a jerk.
Q.
Yes. Well, I was coming to that. Now, Mr. Koehler, if we have two rounds, if we
have one there and another one there and another one there (indicating on the
Exhibit S‑211) placed closer together and they are nailed each one at four
points, while that doesn’t strengthen the tensile strength of the ladder, it
does steady it and make it more firm, doesn’t it? A. Yes.
[2313]
Q. Now, a ladder usually breaks because of vibration, doesn’t it? In other
words you have vibration before the rail of the ladder breaks. A. You have
bending.
Q.
That is what I mean by vibration. A. Yes.
Q.
I will use the term bending then, so that with the rounds spaced closer
together and nailed at four points, there is less likelihood of bending, isn’t
there? A. Bending in which direction do you mean, toward the wall or
sideways?
Q.
I mean vibration. You may call bending just one gradual slack bend. What I call
vibration is the—as the ladder is being used, the rails of the ladder bending
in and out, springing. A. In that direction it wouldn’t make any difference
how many rungs you had on it.
Q.
Well, wherever they are nailed at four points you have a strengthening of the
ladder, the entire railing at that point, haven’t you? A. Just sideways,
but not in the direction toward the wall.
Q.
The nails don’t slip in the rails of the ladder, do they? A. No, but they
do not have any effect on the bending toward the wall.
Q.
With the rail of the ladder like this (illustrating) the spring in toward the wall
under strain or under stress would not be very much, would it? A. No.
Q.
The principal bending is sideways, isn’t it? A. Yes.
Q.
Now having explained to you what I mean, may I ask you is it not the swinging
or the swaying motion, whatever you call that in technical language, that a
ladder undergoes under use, with a person going up or coming down, the swinging
backward and forward motion that causes it to break? A. It might be a
swinging motion sideways.
[2314]
Q. Yes, certainly. In any way? A. No, there may be other factors.
Q.
But it is the swinging motion that causes the fibers to let loose of each
other, to let go of each other, isn’t it? A. In some cases, yes.
Q.
Well, will fibers let go of each other and release their support on each other
under any other circumstance than in the swaying motion of the piece of timber?
A. Yes, yes.
Q.
And what else will cause the fibers to release? A. I will have to explain
there. For instance—
Q.
Just tell me what else will cause them to release. A. They might be overloaded
and without any swaying taking place.
Q.
Then if they were overloaded there would simply be one sway or one motion of
the board and the fibers would release and break, wouldn’t they? A. Well,
there may be vibration or there may be one motion.
Q.
That is what I am talking about, vibration. A. There are so many
possibilities.
Q.
Now whether it be one motion or whether it be a series of motions, it is after
all the bending or the motion of the timber that causes the fibers to release,
isn’t it? A. Bending always must take place before breaking takes place.
Q.
That is it. And, of course, then when the fibers release that weakens the
structure? A. Yes.
Q.
Of that particular piece of wood, doesn’t it? A. Yes.
Q.
And that is what permits it to break. So that after all— A. Beg pardon;
not necessarily. The nails might pull loose.
Q.
Yes, the nails might pull loose, but even if the nails pull loose the rail
won’t break unless the fibers released, would it? A. Oh, the fiber has got
[2315] to be severed whenever a break takes place.
Q.
That is it. Now, after all, the strength of a piece of wood depends to a very
large degree upon the severance of fibers, a great number of fibers built one
on top of the other and closely knit together and sort of held together with
the sap of the wood, or the chemical contents of the wood, isn’t it, isn’t that
the strength? A. Well, popularly speaking, that probably would be a
conception. It is not entirely correct technically.
Q.
Well, it doesn’t apply to all woods alike—I don’t mean that, but I mean that is
the normal structure of a piece of wood, isn’t it, when we speak of the fiber
structure of the wood? A. Yes —well, as fibers it is.
Q.
And so long as the fibers remain in contact then you have the normal strength
of the wood? A. Well, there are so many factors come in there— The
strength might be reduced by—
Q.
Burning? A. —other agencies.
Q.
Yes, certainly. But I mean normally speaking. A. Yes, I would say so.
Q.
But when the fibers have been disturbed in large quantity then, of course, you
have a weakened condition in that piece of wood where the disturbance has taken
place? A. Correct.
Q.
That is right. Now, referring to rail Number— A. 17.
Q.
—17 and particularly between round numbers 96 and 97 I see that there is
apparently a piece missing there. Was that piece missing when you first saw the
ladder? A. Yes.
Q.
And you never saw the piece that fit in there? A. No.
Q.
These rounds on all the sections of this ladder are spaced in a rather wide
distance apart, are they not? A. Unusually wide.
Q.
Unusually wide. A. Yes.
[2316]
Q. A carpenter building a ladder of that kind would generally space the rounds
about a foot apart, wouldn’t he, about twelve inches apart? A. That is the
standard distance.
Q.
That is the standard distance? Now the spacing of the rounds wide apart like
they are spaced on this ladder, whether it detracts or takes away any strength
from the railing or not, it does have a tendency to weaken its resisting power
when a man is coming down, doesn’t it? A. You mean wide spacing as
compared with narrow spacing?
Q.
Yes. A. Yes. Sideways, not toward the wall.
Q.
Yes. Either. So that a man stepping from this round up here, which is numbered
11, down to number 10, because of the distance there would be naturally a heavier
jar upon round Number 10 when he strikes it with his weight? A. Yes.
Unless he took precautions not to let that happen.
Q.
I am speaking now normally, in going down a ladder normally. A. Yes, that—
Q.
That would be the normal effect of it, wouldn’t it? A. Correct.
Q.
And of course an ordinary carpenter would know, understand, and appreciate
those things, wouldn’t het A. I think so.
Q.
Now, you told us yesterday that you had examined the saw cuts. I think I have
it here. I understood you to tell the Prosecutor or the State’s Attorney that
you measured the saw cuts that you found in the rails. A. Yes.
Q.
And that they were 35,000ths to 37,000ths of an inch in width? A. Yes.
Q.
Am I to understand from that that you meant that one saw cut was 35,000 of an
inch and that another was 37,000ths or that they ranged [2317] between those
two figures? A. I measured a number of them and they ranged between those
two figures.
Q.
There were some of them 35,000ths? A. Yes, sir.
Q.
And some 37,000ths? A. Yes.
Q.
Did the texture and hardness of the wood have anything to do with that
difference in width? A. Apparently not, because I tried out saws—
Q.
Well, that is your answer, you said not? A. Yes.
Q.
It did not in your judgment? A. No.
Q.
The normal width of an ordinary cross-cut saw, before there is any set in the
teeth, is what? A. I don’t know.
Q.
You never measured it? A. No, I never saw a saw like that.
Q.
What is that? A. I never saw a saw like that.
Q.
Well, how thick is the saw blade? A. I don’t know, it varies, of course,
with different saws and it varies from front to back.
Q.
I see. Now, how did you measure these 35-thousandths? A. I took a
mechanic’s thickness gauge which has leaves graduated in thousandths of an inch
and placed them in the saw cut.
Q.
And that is how you determined the thickness of it? A. Yes.
Q.
But you did not compare that with the thickness of any saw blade, did you?
A. No.
Q.
Well, are you unable to tell us the standard thickness of a standard crosscut
saw blade? A. Well, there is no such thing as a standard thickness or a
standard crosscut saw.
Q.
There are two kinds of saw blades, are there not; one, the perfectly flat blade
on the cheaper saw, and the other one what is called the hollow ground or
tapered saw blade? A. Yes, yes.
[2318]
Q. Now, take the Diston saws, for instance; are they not all built to a
standard thickness? A. No. The bigger the saw is the heavier it is, the
thicker the blade is.
Q.
Of course. Can you tell whether it was an eight-tooth or a ten-tooth saw that
was used to make these saw cuts? A. Not from those saw cuts.
Q.
I see. A. There are other markings on the ladder from which I determined
that the ladder came in contact with an 11-point saw.
Q.
With an 11-point saw? A. Yes.
Q.
Now, take a standard 11-point Diston saw: do you know what the thickness of the
blade is? A. Not of the blade.
Q.
Not of the blade? A. No.
Q.
Well, the width of a saw cut depends upon the set in the saw, doesn’t it?
A. Yes.
Q.
Now, when you speak of 35,000ths of an inch you are speaking of a width
slightly less than a thirty-second of an inch? A. A great deal less.
Q.
Well, a thirty-second of an inch is between 25,000ths and 26,000ths, isn’t it?
A. I will have to figure that out first.
Q.
I see. And this is 10,000ths more then, 10,000ths thicker? A. (No answer.)
Q.
Well, you say you don’t know. A. Did you say—
Q.
Never mind; never mind. But it is slightly thicker than a thirty-second of an
inch, 35,000ths, isn’t it? A. I will have to figure that out.
Q.
Well, you know a thin dime is a 30,000th of an inch in thickness, isn’t it?
A. I don’t know.
Q.
You don’t know about that.
Q.
Well now, the 37-thousandths of an inch which you found, do you remember where
you found that? A. I couldn’t point to the specific cut now without
referring to my notes.
[2319]
Q. Did you find it on one of the rails or on one of the rounds, if you can
tell? If you can’t, don’t bother, it is not very important. A. The cuts
show only on the rails, they don’t show on the rounds.
Q.
Then it must have been on one of the rails? A. Yes.
Q.
Was it on the Douglas fir or on the pine? A. I can’t say offhand.
Q.
You don’t remember that. Did you trace this Douglas fir or believe that you
traced it to the upper Vancouver district? A. You mean in British
Columbia.
Q.
I am not sure, I think the upper Vancouver district is in the Washington
territory, but you may be right about it. A. You see there is one
Vancouver in British Columbia and one in the United States.
Q.
Yes, there is. A. While I traced it to a mill in the Puget Sound region—
Q.
Puget Sound region, that would be the upper Vancouver district of the State of
Washington? A. I don’t know that it is referred to by that name.
Q.
Well, you know there is a Vancouver in Washington. A. Yes.
Q.
And that north of that Vancouver is called the Upper Vancouver District.
A. I didn’t know that.
Q.
You didn’t know that, all right. I had reference to the Barnett Mill.
A. That is in British Columbia.
Q.
And did you obtain samples from the Barnett Mill? A. I did.
Q.
Of Douglas fir, did you call it? A. Yes.
Q.
Douglas fir, and having obtained that sample, did you believe that that sample
conforms to [2320] the sample of Douglas fir that was used in the construction
of the ladder? A. No.
Q.
That was not your conclusion? A. No.
Q.
Well, did you finally locate and to your satisfaction, the point of origin of
the Douglas fir? A. You mean the part of the country or the mill?
Q.
Well, both, both the mill and the part of the country. A. There were three
Douglas fir rails in the ladder and each of them was dressed on a different
planer.
Q.
So that each of them came from different mills? A. Unless one mill had two
planers—
Q.
Yes, certainly. A. —In operation.
Q.
Well, did you locate their point of origin to your own satisfaction?
A. For two of the rails.
Q.
And where did you locate the point of origin? A. One of them is Longview,
Washington, and the other Bellingham, Washington.
Q.
Is that the plant of the Longview Lumber Company? A. Yes.
Q.
And the other one was where? A. The plant of the Bloeddell,
B-1-o-e-d-d-e-1-1, Donovan Lumber Mills.
Q.
Have you any conception of the output in millions of feet of the Longview
Lumber Company plant per annum? A. No.
Q.
In the year 1931 or ‘32? A. No definite conception. They have a big
output.
Q.
But it runs into many, many millions, doesn’t it? A. I would think so.
Q.
Did you ever visit that mill? A. Yes, I was there.
Q.
Did you see a log go in one end and come out in shingles, the other end of it?
A. Yes.
Q.
May I ask you if, in your experience, North Carolina pine lumber, such as you
discovered in the three sections of this ladder, is commonly used for crating
and boxing purposes in ship- [2321] ment? A. Such as is found in the
bottom section of the ladder, the one by four, is commonly used for that
purpose.
Q.
Now, the Douglas fir—Is not Douglas fir also used in crating, boxing and
shipping, more particularly in boxing? A. The one by fours is used
considerably.
Q.
Yes. A. For that purpose.
Q.
In your examination of the rails of this ladder did you discover any marks of
red lead or red paint or red pigment? A. I did on one of them.
Q.
And can you tell us which rail you discovered that on? A. I’d have to look
at the ladder.
Q.
I wish you would, if you can. A. (Examining ladder.) Yes, on rail 14.
Q.
Did you give us the number of it? A. Rail 14.
Q.
Rail 14. Now, of course, that was much plainer when you first saw it than it is
today, wasn’t it? A. No. It had—The rail was stained with fingerprint
stain and wasn’t quite as plain.
Q.
Oh, it had been stained when you first saw it? A. Yes.
Q.
Oh, I see. And that is on the section of the ladder or the rail of the ladder
that is split? A. Yes.
Q.
Just for the purpose of further identification. That is all. You may put that
back. And is that the only evidence of red paint or red lead that you found on
the ladder anywhere? A. Yes.
Q.
Wasn’t there some on one of the rounds, rungs? A. No.
Q.
You didn’t notice any? A. No.
Q.
If there was on any of the rounds? A. I didn’t notice any.
Q.
Red lead is commonly used on plumbing fixtures, isn’t it? A. So I
understand.
[2322]
Q. Speaking of the construction of the ladder, did you observe any difference
in the workmanship, the construction of Sections 1, 2 and 3? A. No.
Q.
Well, No. 2 and 3 seem to be a little better constructed than the other, maybe
I am wrong, maybe I mean 1 and 2. Which is 1 and 2? Is the wide section called
1? A. The wide section is called 1, the next one (indicating) is 2 and
that is 3 in your hand.
Q.
Did you think that 1 and 2 were a little better constructed than No. 3 from a
mechanical point of view? A. No difference except that a more knotty grade
of lumber is used in this pine rail than in the others.
Q.
A poorer and weaker piece of lumber, isn’t it? A. Yes.
Q.
Well, the general workmanship is a little better on Number 1 and Number 2 than
it is on that one? A. No, I wouldn’t say so.
Q.
Were you able to determine one of the rails had been sawn with a rip saw?
A. No, I couldn’t say whether it was a rip saw or not.
Q.
Or a crosscut saw? A. No.
Q.
In your search for the identification of this lumber, did you find lumber of
the same character, kind and quality in a lumber yard at Hopewell? A. No.
Q.
And if there was lumber of this same type character and quality found in the
lumber yard at Hopewell by the State Police, it was not presented to you for
inspection? A. No.
Q.
Did you find lumber of the same type and character at the epileptic village
near Skillman? A. No.
Q.
And if it was so found it was not presented to you? A. No.
Q.
Painting of fir or pine with nitrate of silver [2323] will raise the grain,
will it not? A. That depends on how much of the solution is put on. If
just a slight amount is, it would; and I don’t know how much of a moisture is
really added to the wood by that process.
Q.
Well, isn’t the diluting agency of nitrate of silver alcohol? A. I don’t
know.
Q.
Well, alcohol in very small quantities will raise the grain of wood, will it
not? A. Not as much as water.
Q.
Well, I suppose that you have in your lifetime used shellac on wood, haven’t
you? A. Yes.
Q.
And I suppose you have used a very thin, adulterated shellac, have you?
A. I don’t recall.
Q.
When I say adulterated, I mean cut with alcohol? A. Oh, well, that is
commonly done, sir.
Q.
Yes. A. Yes.
Q.
And that will raise the wood right up almost as soon as it strikes it, won’t
it, the grain? A. I haven’t noticed that.
Q.
You haven’t noticed that? A. No.
Q.
Well, were you ever able to apply alcohol to North Carolina pine, to Georgia
pine, or Douglas fir, or to Ponderosa pine without experiencing a raising, a
pronounced raising of the grain of the wood? A. I don’t remember having
applied alcohol to those kinds of wood.
Q.
All right. Now, the washing of North Carolina pine, Ponderosa pine and Douglas
fir, or either one of them with a solution of bichloride of mercury, following
a treatment of nitrate of soda, would raise the grain, wouldn’t it? A. I
understand that is a water solution of bichloride of mercury.
Q.
Yes. A. It would raise the grain, depending upon how long that is allowed
to remain on there and how much is applied.
Q.
Well, is it after all the length of time that [2324] moisture remains on a
piece of porous wood that determines the raising of the grain, or does the
moisture immediately go right into the pores and under the grain and raise it?
A. Moisture never goes in immediately, it takes time.
Q.
Well, but it doesn’t take very many seconds for it to go in porous wood, does
it? A. Enough to raise the grain completely would require, I would say,
half an hour maybe.
Q.
Mr. Koehler, I really didn’t mean raise the grain completely. What I meant it
would raise the grain substantially. A. Yes, I would think so.
Q.
Why, Mr. Koehler, to take a piece of Douglas fir or a piece of North Carolina
pine that has been kiln dried and take it out and stand it and. expose it to a
damp atmosphere, foggy, such as it was a day or two ago, will raise the grain,
won’t it? A. In the course of time, yes.
Q.
Well, how long a time? A. That would take twenty-four hours or so.
Q.
Something like that. Did you find any hammer marks on the ladder over the
nails, did. you notice any? A. There were a few on the rungs.
Q.
Just a few on the rungs. A. Yes.
Q.
From your experience, a good carpenter doesn’t leave hammer marks on his work,
does he? A. No.
Q.
He drives the nail down practically flush with the work and then he uses his
nail set to set it in. A. He wouldn’t use a nail set on 8 penny nails, as
a rule, he would drive them flush and leave them there.
Q.
He would drive them flush and leave them there? A. He might occasionally.
Q.
Well, were they eight penny nails? A. Yes.
Q.
Common, ordinary wire nails? A. Yes.
Q.
An eight penny nail? A. Yes.
[2325]
Q. And were they finishing nails or were they nails with the flat top?
A. They were what they call common nails.
Q.
Common nails. A. Not finishing nails.
Q.
Not finishing nails. The rafters up in the attic, this is rather jumping, sir,
from one subject to another—you did measure the rafters, did you not, when you
drew your plan of the attic? A. Not the rafters, the joists. The rafters
hold up the roof, you know.
Q.
I know what the rafters are. I meant—you did not measure those, the rafters?
A. No.
Q.
The rafters nor the uprights on the side? A. No.
Q.
Merely the floor joists? A. Yes.
Q.
Well, were the floor joists set 16 inches on centers? A. They were right
around 16, except in one place, there was a wider place, and the next one was
narrower.
Q.
Was that where the opening was A. No.
Q.
The little trap door? A. No.
Q.
But generally speaking they were set 16 inches on center? A. Yes.
Q.
Now, how about that particular portion of the attic floor where you were
experimenting with the floor board? Were they set 16 inches on center there?
A. Well, not exactly, but quite close to it.
Q.
When you say not exactly—when I ask you if they were set 16 inches on center I
mean as they are and as closely as they usually are in that kind of
construction. A. I would say so.
Q.
They are never set exactly 16 inches on center, are they? A. No.
Q.
Now that is the common width for that character of construction, 16 inches on
center, isn’t it? A. Yes.
Q.
And cut nails are nails usually used in nail- [2326] ing flooring of that
character, are they not? A. Yes, in this section of the country they are.
Q.
Yes, rather than the wire nails? A. Yes.
Q.
Or finishing nails? A. Yes.
Q.
Were you shown a piece of a dowel pin made out of three-quarter inch maple?
A. As part of the ladder?
Q.
Yes. A. You mean—
Q.
Yes. A. There is a dowel pin three-quarter inch, but it isn’t maple.
Q.
Well, where is it? Is it here somewhere? A. There is one attached to the
rail. I think the other has been admitted separately as evidence.
Q.
The No. 18, is it, it has a little ticket on there, 18—. A. Yes.
Q.
And is that your marking? A. No.
Q.
That No. 18? A. No.
Q.
Well, in your examination of this, did you use that No. 18? A. Yes.
Q.
As your guide? A. Yes.
Q.
As your identification mark? A. Yes.
Q.
So that when I speak of No. 18 you know what I have in mind, do you? A. I
do.
Q.
And did you cut a little notch out of the end of this dowel pin? A. I did.
Q.
For what purpose? A. So that I could see the grain better.
Q.
And what kind of wood it was? A. Yes, and what kind of wood it is.
Q.
And what kind of wood is the dowel pin? A. Birch.
Q.
Was there another dowel pin or part of a dowel pin shown you three-quarter
inch? A. In connection with this ladder?
Q.
Yes. I believe it had been broken. It was here the other day. I don’t know
where it is.
Mr.
Wilentz: Here it is right here.
[2327]
Mr. Pope: This is it.
The
Witness: Yes.
Q.
I show you State’s Exhibit number—
Mr.
Wilentz: S‑212.
Q.
Number S‑212, was that shown to you? A. Yes.
Q.
Is that Maple? A. No.
Q.
What kind of wood is that? A. Birch.
Q.
That is birch too? A. Yes.
Q.
Now, were you also shown a piece of dowel pin that same size by the State
Police found in the Lindbergh house, a small piece? A. They had several
dowel pins three-quarter inches in diameter, but I don’t know where they
originated.
Q.
I see. Well, I am speaking now of a small piece of a dowel pin three-quarters
of an inch in diameter said to have been found in the Lindbergh house. Did you
see that? A. I don’t remember a small piece at all.
Q.
You don’t remember seeing it? A. What I saw was some length.
Q.
All right. You don’t remember seeing it. Now, a three-quarter inch dowel pin is
not a usual size, is it? A. Yes.
Q.
It is sort of unusual, isn’t it, in size? A. No, you can buy them in most
lumber yards and in some hardware stores.
Q.
Well, you can buy them, certainly, but a three-quarter inch is not a size that
is frequently used, is it?
Mr.
Wilentz: I object to the question. He has already answered it three times that
it is unusual.
[2328]
Mr. Pope: No, he hasn’t answered it at all.
Mr.
Wilentz: Well, I submit he has, that is why I make the objection.
Mr.
Pope: We will let the Court decide that.
Mr.
Wilentz: The first question was whether it was unusual and he said Yes, and then
the next question counsel asked was whether it was unusual, and he said it was
not, now he is asking it backwards.
The
Court: What is the present question?
Mr.
Wilentz: I withdraw the objection.
The
Reporter: (Reading.) “All right. You don’t remember seeing it. Now a
three-quarter inch dowel pin is not a usual size, is it, A. Yes.
“Q.
It is sort of unusual, isn’t it, in size? A. No, you can buy them in most
lumber yards and in some hardware stores.
“Q.
Well, you can buy them, certainly, but a three-quarter inch is not a size that
is frequently used, is it?”
The
Court: He may answer the question. I think he has answered it, but if not he
may answer it again.
The
Witness: Yes; it is frequently used for mop handles.
By
Mr. Pope:
[2329]
Q. You mean short mop handles for little sink mops? A. No; regular long
mop handles.
Q.
I understood you to refer in your direct examination to the annular rings in
the photographs that you had demonstrating North Carolina pine. Those annular
rings are caused by the natural growth of the tree making a ring every year,
isn’t it? A. Yes.
Q.
Their prominence depends to a large extent upon the natural conditions, growing
conditions, do they not? A. Well, they depend upon a number of factors.
Q.
Well, one of the principal factors, of course, is the weather conditions, the
amount of moisture that the tree receives, whether it is a wet season or a dry
season? A. Yes.
Q.
And another factor would be, for instance, a forest fire near the tree?
A. Yes.
Q.
That would stunt rather than stimulate the growth of the tree, wouldn’t it?
A. Yes.
Q.
So that the more natural and the more healthy the growing season is, the larger
and more prominent ring the tree develops? A. Yes, for a particular tree.
Q.
Well, I am speaking now, of course, of North Carolina pine. A. The space
that the tree has to grow in is the most important factor.
Q.
Yes. Well, supposing that we confine our inquiries to this particular tree from
which these boards, we believe, came. Now regardless of the space, my inquiry
is this: that the width and prominence of the annular ring depends to a certain
extent, at any rate, upon the season, the moisture that the tree receives and
the other chemical products of the earth which enhances its growth. Isn’t that
so? A. Yes.
Q.
Yes. So that in a season where there is plenty of moisture, a tree usually
develops a [2330] more prominent annular ring than it does in a very dry
season? A. Yes; if other factors are favorable.
Q.
Of course. So that when you referred to the prominent markings or annular rings
in the board and, after all, the grain is really a part of the annular rings,
isn’t it? A. The annual rings constitute the grain.
Q.
The grain, merely cut off in the circle? A. (Nods head.)
Q.
That would indicate that the season was favorable to the growth of the tree,
wouldn’t it? A. You mean if you had a wide ring?
Q.
Season and growing conditions? A. You mean if you had a wide ring?
Q.
Yes. A. Yes.
Q.
And where you have very small fine rings, very close together, as they are
shown on the right hand side of this board, which is State’s Exhibit—something—
Mr.
Wilentz: 226.
Q.
Yes, 226. —that would indicate dry seasons? A. Well, it might.
Q.
And unfavorable growing conditions? A. It might indicate that the tree was
crowded, becoming more crowded by neighboring trees.
Q.
That would also be covered by unfavorable growing conditions, wouldn’t it?
A. Yes.
Q.
So if we found those in one section of the board and then we find that they disappear
and we have wide rings we may readily conclude that the growing conditions were
much more favorable? A. Yes.
Q.
Now, the character and type of grain which you discovered and have pointed out
in these pieces of North Carolina pine is very common to [2331] that type of
lumber, is it not t A. Well, you have annual rings in North Carolina pine,
but I can’t say that any specific type or width is characteristic of North
Carolina pine.
Q.
Well, I will put my question another way: As we look at this piece of North
Carolina pine, the first thing that strikes us is that the grain into it is
prominent and stands out? A. Yes.
Q.
And is easily discernible? A. Yes.
Q.
Now, what I meant to ask was this: is that not characteristic of North Carolina
pine? A. Yes, that is a general characteristic of North Carolina pine.
Q.
And wherever you have a knot formation in North Carolina pine, when the tree is
sawed through the middle and across the annular rings, you then get that
whirling effect near the knot, don’t you? A. Yes.
Q.
That you have there? A. Yes.
Q.
Just one or two questions about the machine. You showed us a diagram yesterday
of the cutter head of a planing mill. I understood that that was merely
diagrammic? A. It was.
Q.
That it was not intended to depict or represent the cutter head on the mill
down South? A. No, it wasn’t.
Q.
Did you determine at what speed the cutter head was running on the planing mill
in the McCormick—the Dorn mill in South Carolina? A. Yes.
Q.
How many revolutions per minute? A. 2700.
Q. 2700 revolutions per minute carrying eight knives? A. Yes.
Q. 2700 revolutions per minute carrying eight knives? A. Yes.
Q.
That would mean that there were eight times 2700 cuts on the underside or the
upper side of the board per minute, wouldn’t it? A. Yes. Wait a minute.
Yes, that is right.
Q.
In other words, practically 24,000 cuts per [2332] minute? A. Let’s see. I
got mixed up on the previous calculations. Will you please read the previous
answer?
(The
reporter read the previous questions and answers as follows: “Q. 2700
revolutions per minute carrying eight knives? A. Yes.
“Q.
That would mean that there were eight times 2700 cuts on the underside or upper
side of the board per minute, wouldn’t it? A. Yes. Wait a minute. Yes,
that is right.
“Q.
In other words, practically 24,000 cuts per minute? A. Let’s see.”)
Q.
Approximately not quite 24,000? A. I figure 21,600.
Q.
Well, 2700 revolutions per minute, it will be eight times 2700 revolutions,
wouldn’t it? A. Yes.
Q.
And that is about 22,000. A. Yes.
Q.
—knife cuts on the board every minute. A. Yes.
Q.
Now, the markings of a knife cut on the underside of a board going over a
jointing machine or a planing machine, depends whether or not there is any
overlapping of the following knives, doesn’t it, overlapping cuts? A. Will
you please repeat that question?
(The
Reporter repeats the pending question.)
Q.
—overlapping cuts. A. You mean the presence of a knife cut depends upon
overlapping cuts—I don’t get that.
Q.
The character of a knife cut depends upon [2333] the overlapping cut. Well, I
will change the question, I will put it this way to you. If a board is run
across a planer head moving with eight knives at approximately 21 to 22,000
revolutions per minute—. A. No, not revolutions per minute, cuts per
minute.
Q.
—cuts per minute—I stand corrected. Thank you. —21 or 22,000 cuts per minute if
it is moved at a fairly rapid rate of speed, the result will be a perfectly
smooth finish on the board, won’t it? A. Not perfectly smooth, because all
of those cuts—
Q.
Well, if it is run across the knives fast enough it will be absolutely smooth,
won’t it? A. No. The faster it is run, the rougher the work it does.
Q.
The faster, the rougher? A. Yes.
Q.
Well, in order to be rougher, the speed of the board running across the knives would
have to be a little faster than the whirl of the knives and the cut, wouldn’t
it? A. Oh, it never is that fast.
Q.
Isn’t it the slow motion of a board across the planer head that causes the
ridges or ripples to show on the bottom of the board? A. No. The slow
motion brings them close together and makes them inconspicuous.
Mr.
Pope: Thank you very much, sir.
Re-Direct Examination by Mr.
Wilentz:
Q.
Just a few questions, Mr. Koehler. You were asked a while ago whether or not
you found lumber, I take it that the inquiry was with reference to the lumber
in the ladder, whether you found any such lumber, first in Hopewell, and you
said no, and the next question was as to the [2334] epileptic village, and I
think you said no. A. I did.
Q.
You didn’t find any at any orphanages, did you? A. No.
Q.
Did you find any in the Bronx? A. Yes.
Q.
In Hauptmann’s home? A. Yes.
Q.
Some time ago the inquiry was directed to you with reference to whether or not
a mechanic built this ladder, and I think your answer was no. Let me ask you,
does this ladder look like the work of a $100 a month carpenter? A. Well,
I don’t know just what kind of carpenter work that would be.
Q.
Well, let’s see. You have examined this ladder, have you not? A. Yes.
Q.
It is a home-made ladder, isn’t it? A. Yes.
Q.
It is not a stock ladder? A. No.
Q.
You see the place for the dowel pins, don’t you? A. Yes.
Q.
That had to be cut out? A. Yes.
Q.
And you see these rungs? A. Yes.
Mr.
Pope: Now I object to the question as leading.
Q.
Do you see the rungs? A. Yes.
Mr.
Pope: And not re-direct examination, not based upon any cross-examination of
mine.
Mr.
Wilentz: Well, I differ with counsel, if your Honor please.
Mr.
Pope: All right. Ask your question and I will see.
Mr.
Wilentz: I thought I had done that.
[2335]
The Court: I will overrule the present objection. Proceed.
Mr.
Wilentz: All right.
Q.
Do you see the rungs? A. Yes.
Q.
In order to get those rungs in, what had to be done to these rails?
A. They had to be notched.
Q.
When you say notched, what do you mean by that? A. Two saw cuts made and
the wood between them chiseled out.
Q.
So that there had to be this excavation so-called? A. Yes.
Q.
You call it a notch? A. Yes, or a recess.
Q.
A recess, that is right. What do you make these recesses with? A. A saw
and chisel.
Q.
Saw and chisel. That is, they are not made in lawyer’s offices, are they?
A. No.
Q.
How many of those were made?
Mr.
Pope: He has never been in my office.
The
Witness: There are ten in that section of the ladder.
Q.
Ten. The dowel pins fit in these holes, did they not, in the various sections?
A. Yes.
Q.
The purpose of the dowel pins is to connect one section with another, I take
it? A. Yes.
Q.
Is this the work of a carpenter of some sort or other? A. It might be a
very rough carpenter.
Q.
Well, a jeweler wouldn’t make this ladder, would he? A. No.
Q.
It would have to be somebody that knew [2336] something about carpentry, isn’t
that it? A. Well, something about it, yes.
Q.
You see all of these other recesses? A. Yes.
Q.
They have been cut out, haven’t they? A. Yes.
Q.
With carpenter’s tools? A. Yes.
Q.
And the other dowel pin holes have also been made by carpenter’s tools?
A. Yes.
Q.
Is that the work of a carpenter, good or bad? A. Yes; used carpenter’s
tools.
Q.
Never mind whether he used carpenter’s tools; does it appear like the work of a
carpenter? A. I would say that anybody working with wood would be a
carpenter in a sense.
Q.
I am not arguing with you about it? I just want to know. My recollection is
that you stated that a man weighing about 175 or 180 pounds could, in your
opinion, go up that ladder without it breaking. A. Without a break in the
wood forming first.
Q.
Without a break, yes. Now, if that same man was going up, I think Mr. Pope says
going up and down, if that same man going up and down this particular ladder
weighing 170 or 175 pounds—taking Mr. Pope’s figure—and then coming down having
an additional load of 30 pounds, would not that ladder break?
Mr.
Pope: I object to the question as not based on any cross-examination at all.
There isn’t any evidence in the case that anyone came down the ladder with any
additional weight on it.
Mr.
Wilentz: The case is loaded with that kind of evidence, your Honor.
[2337]
The Court: I overrule the objection. He may answer the question.
Mr.
Pope: May I have an exception? The Court: You may have an exception.
(Exception
allowed and same is signed and sealed accordingly. THOMAS W. TRENCHARD {L.S.}
Judge.)
Q.
If you know, what is your opinion? A. I couldn’t say.
Q.
You can’t tell. Now, let me ask you this, section 1 and section 2 connected
would be connected by this dowel pin, would they? A. Yes.
Q.
And if there were weight on the upper section, being Section 2, the force of
that weight would go where? Would it go at the intersection where the dowel pin
was? A. Yes, where the stress would be greatest.
Q.
That is where the stress would be greatest. And if there was sufficient stress
there to break it, where would the break most likely occur? A. It might
occur in several places. It might force the top rung off because of the
pressure of the upper section of the ladder against that, or there is tension
across the grain of the lower part of the rails of the second section in that
case, and they might split.
Q.
Yes. All right. Now, just one minute. Tension against the lower part of the
second section: is that what you say? A. Pressure against the back of the
rung—
Mr.
Pope: The rail.
[2338]
Q. Yes. Now, this one is section 1, isn’t it? A. Yes.
Q.
Now, this is section 2? A. Yes.
Q.
I take it; fit right in together, don’t they?
A. Yes.
Q.
The dowel pins—
Mr.
Pope: Don’t they go the other way?
Mr.
Wilentz: Maybe they do. I don’t know.
Q.
Have I got it right? A. Correct.
Q.
Now, all right. This is section 1 where I am now, and I am climbing up this
ladder, up to Section 2. Now, I am coming down.
Mr.
Pope: Let’s see you do it. Mr. Wilentz: I am going to do it.
Q.
Coming down Section 2, with the dowel pin in there. The pressure you have just
talked about and the tension you are talking about is here at the intersection,
is that it? A. Yes, where it is greatest.
Q.
And being greatest there, if there is sufficient to cause a break, the break is
likely to be there, isn’t it? A. Yes.
Q.
Take a look and see if there is a break in this ladder at that point.
A. Yes. The two rails are split, from the end up to the first rung.
Q.
That is from the end of the second—That is at the bottom of the second section
where it connects with the top of the first section, isn’t that it?
A. Yes.
Q.
All right. Now, will you just take the stand again. Of course, you didn’t see—
[2339]
Mr. Pope: Please don’t put that away, the one section that is split. Just leave
it there for a few minutes, will you, please.
Mr.
Wilentz: All right. We will put it back.
By
Mr. Wilentz:
Q.
Of course, you weren’t down on the Lindbergh Estate on the night of March 1st,
and you didn’t see this ladder that night, did you? A. No, I did not.
Q.
And the first time you saw it, of course, was when you came there in May?
A. I saw parts of it then.
Q.
Yes. And not having been there you don’t know just what happened with the
ladder except from your observation later? A. Yes.
Q.
You were asked about Stanley chisels. Did you find any Stanley chisels in
Exhibit—
Mr.
Wilentz: Can I have a little help with this chisel chest.
Q.
Did you look through the chest that is marked 196, or will you look through it
now and see if there are any Stanley chisels? A. (Witness-examines chest.)
No, there are no Stanley chisels in this set.
Q.
Will you take a look at the rest of these tools, go through them carefully.
A. (Witness looks through tool chest) Those are the only three chisels in
the set and none of them is a Stanley chisel.
Q.
What is this? A. A screw driver.
Q.
A screw driver. Will you take a look and see if there is any other chisel in
there?
[2340]
Mr. Wilentz: I don’t know as much about this lumber as Mr. Pope does.
Mr.
Pope: You see I am an expert carpenter.
Mr.
Wilentz: That is why you don’t take very much time.
Q.
Well, you don’t find them, do you? A. There is one other place to look
here (witness-examines box further), no.
Q.
All right, you can leave them just about as they are for the moment.
Q.
So that you found no Stanley chisels in the State’s exhibit, this chest of
tools, or any other exhibits that have been shown to you? A. No.
Q.
Now, with reference to the distance between the rungs of the ladder, a little
fellow like me would have a hard time climbing a ladder with rungs so widely
separately, wouldn’t he? A. Yes.
Q.
A man about 5 foot 9 or 10 inches would have an easier time, wouldn’t he?
Mr.
Pope: Won’t you let the witness testify, General, please?
The
Court: Well, it is perhaps a little leading, but you may answer the question.
A. Somewhat
easier, yes.
Q.
Somewhat easier. You were telling Mr. Pope, discussing with him and theorizing
with reference to the raising of grain; that is, the grain being raised. Now a
piece of wood that came from an attic and had not been exposed to the weather,
if it were left on the Lindbergh estate from about somewhere around eight
o’clock [2341] until midnight or a few hours thereafter, would the grain raise
as the result of that exposure? A. It depends upon the atmospheric
conditions, whether it is damp or not.
Q.
Well, did the grain in this rail 16 raise? A. In wood of that kind the
grain is always raised somewhat.
Q.
Always raised somewhat? A. Yes.
Q.
Did the grain in that piece of wood raise at all or was it the same as the
attic floor? A. Practically the same as the attic floor. It showed no
difference in that respect.
Q.
Would it have shown any difference exposed for those few hours that I spoke to
you about? A. No, not if it was dry, not raining.
Q.
Now supposing it was exposed to the ordinary moisture there is during this
March weather for those few hours, would that have made any difference?
A. If it rained on it, that would make some difference.
Q.
Suppose it was exposed to the weather without rain for a few hours, would it
have changed the appearance of it so far as the grain is concerned? A. No.
‘
Q.
Would it have raised the grain? A. No.
Q.
Of course, if you poured water on it and kept it soaked in water, the grain
would be raised, wouldn’t it? A. Yes.
Q.
You said the ladder wasn’t a good carpenter’s job. It was some sort—are the
tools a good carpenter’s set of tools? A. I wouldn’t say so, I don’t think
they are.
Q.
You don’t think they are? A. No.
Q.
Is the plane a good carpenter’s plane? A. No.
Q.
Is the ladder a good carpenter’s ladder? A. No.
Q.
The plane marks that you testified to yes- [2342] terday upon this ladder, is
it still your testimony that those plane marks were made by this plane?
A. Yes.
Mr.
Popo: I object to the question on the ground that it is leading and not
redirect and I ask that the answer be stricken out, because the objection was
certainly timely, but the witness answered it.
The
Court: I decline to strike it out.
Q.
Now, having been—you appreciate, Mr. Koehler, do you not, that this defendant
in this case is charged with murder? A. Yes.
Q.
And appreciate—
Mr.
Pope: Well, I object to that and ask that that be stricken out.
The
Court: Well, I don’t know the purpose of it, perhaps—
Mr.
Pope: I don’t either.
The
Court: Perhaps there is a purpose.
Mr.
Pope: Just to make a speech.
The
Court: I don’t see that it is objectionable at all; everybody knows that the
defendant is charged with murder. What is the purpose of it, Mr. Attorney
General.
Mr.
Pope: Oh, we will let it pass if it is satisfactory.
Mr.
Wilentz. Well, appreciating that, [2343] Mr. Koehler, and having discussed with
Mr. Pope the qualities of the various pieces of wood that make up this ladder
and particularly North Carolina pine, do you still say that S‑226 and rail 16
were at one time one and the same board?
Mr.
Pope: Don’t answer, please, don’t answer. Now, I object to that question.
The
Court: Why?
Mr.
Pope: Well, there are so many reasons that I hardly know just where to begin.
The first one is that it is not redirect examination based upon any part of the
cross-examination. It is not an omitted question because the witness has
testified several times during the course of his examination as to just what he
believed, just what his opinions were, just what he found and what his
deductions and conclusions were from those opinions, and there was nothing in my
cross-examination which in any way questioned the conclusions which he uttered
in that respect, and now I submit that it is quite improper for the Attorney
General to come and ask the witness this morning, “Well, are you still of the
same opinion that you expressed yesterday”? when there is no evidence that the
witness has changed his opinion and it is only done for the purpose of
repetition and effect, that is all, not to serve any useful purpose.
The
Court: I will overrule the objection.
[2344]
Mr. Pope: May I have an exception? The Court: Take your exception.
(Exception
allowed and same is signed and sealed accordingly. THOMAS W. TRENCHARD {L.S.}
Judge.)
Q.
Are you still of the opinion, Mr. Koehler that this S‑226 and Rail 16 of the
ladder were at one time one and the same piece of wood?
Mr.
Pope: I object to it because it is very leading.
Q.
Please answer. A. I am.
The
Court: Do you object?
Mr.
Pope: Well, he has already answered it. Now the damage is done.
Mr.
Wilentz: That is all I have with the witness, you may take the witness.
Re-Cross-examination by Mr. Pope:
Q.
And in answering that last question of the Attorney General you are expressing
your opinion, aren’t you? A. Yes.
Q.
And that is all? A. Yes.
Q.
Now will you bring the section down here that was split. You know them better
than I do. Just lay it down on the floor; that will be all right; anywhere. I
want it so the jury can see it, though.
[2345]
Mr. Wilentz: I was going to lay it on the floor.
Mr.
Pope: All right, I will hold it.
Q.
Now, from your observation of those two rails that are split there, the split
occurs where the dowel pin goes in, in each instance, doesn’t it? A. Yes.
Q.
So that the reason those rails broke or split at that point was because they were
weakened by the hole bored to receive the dowel pin: isn’t that right?
A. No, I wouldn’t say that was the reason.
Q.
Well, it was weaker at that spot than at any other spot in the rail, wasn’t it,
because of the hole bored through it? A. Well, I don’t know just what you
mean. Weakened in what respect?
Q.
All right. I mean this: whenever you put—what is that, a three-quarter inch
hole? A. Yes.
Q.
Or seven-eighths, or inch? A. Three-quarter inch.
Q.
Three-quarter inch hole. Whenever you put a three-quarter inch hole in a one by
four, you weaken the one by four at the spot where the hole goes through, don’t
you? A. You might weaken it in some respects, yes.
Q.
Well, you weaken it as a rail for a ladder? A. Slightly, yes.
Q.
Yes. And it is more apt to split when there is a hole bored through it than it
would be if there had been no hole through there, isn’t it? A. Yes.
Q.
Yes. A. Naturally.
Q.
So that the principal reason why it split where it did was because of its
weakened condition where the holes were bored through? A. No, not
necessarily.
Q.
Plus the weight on the ladder? A. The stress [2346] may have been greatest
there. It may have been weaker somewhere else, but the stress was greater here
and it broke there.
Q.
Well, Professor, the stress, when you speak of the stress then you refer again,
of course, to the fibers, don’t you, the holding power— A. No, the affect
of the load put on.
Q.
On the holding powers of the fibers? A. Yes.
Q.
Now of course there was less holding power on the part of the fibers where the
holes were bored through the wood? A. That is true.
Q.
Consequently it was weakened? A. Yes.
Q.
And the stress then had a greater effect upon that weakened portion of the
wood? A. That is correct.
Q.
And that is what caused it to break at that spot rather than in some other
spot, isn’t it? A. Well, in my opinion, the fact that caused it to break
there was because the stress was greatest there and that the slight weakening
due to that hole—
Q.
If there hadn’t been any stress there it wouldn’t have broken at all, would it?
Mr.
Wilentz: Let him answer, please.
Q.
It was the stress plus the weakened condition of the wood at that particular
point that caused the break to occur at that point? A. That is correct.
Q.
Now we understand each other. One other question: This type of ladder, speaking
of its general construction work, referring to the general characteristics of
the mechanical work on this ladder, a boy with a letter experience in a manual
training school would do a much better job, wouldn’t he? A. Yes, if he had
some experience.
Q.
A carpenter in building a ladder or any [2347] other structure of this type,
lays out his work with a square and a pencil, doesn’t he? A. Yes.
Q.
And particularly where he recesses the rails to let them in, that is laid out
with a square and pencil marks? A. Yes.
Q.
And you can most generally find pencil marks extending beyond the depth
required? A. Yes.
Q.
And did you find such markings on this ladder? A. Yes, there were some on
there.
Q.
There were some on there, but not very many. A. No.
Q.
You don’t find very many? A. I think most of the recesses show some.
Q.
Some pencil marks? A. On one or two of the rails I should say.
Q.
This type of ladder, I mean this general—shall I call it plan of construction of
ladder—is a general plan and type of ladder that is used quite extensively in
the South in the fruit industry, is it not? A. Not to my knowledge. I
never saw a ladder like that before.
Q.
You never saw one like that before? A. No.
Q.
Have you ever paid any attention to the type of extension ladder or sectional
ladders that are used in the fruit picking areas of the South, of southern
United States? A. I didn’t know they used sectional ladders.
Q.
You never noticed that? A. No.
Mr.
Pope: That is all. Thank you.
By
Mr. Wilentz:
Q.
The distance between the rungs, between one rung and the other, right through
the sections, the distances are almost identical, are they not? A. Yes,
although when the sections are assembled [2348] it brings two rungs closer together
near the middle.
Q.
And the pencil marks which Mr. Pope spoke to you about as being, I think he
referred to them as being the—
Mr.
Pope: The recess.
Q.
—the manner in which a carpenter would do it, you found such pencil marks, you
told us?
Q.
If this ladder were connected so that two sections were together and those two
sections placed against this wall or any other wall, you stated that the break,
if it came at the intersection, would be due in part to the stress?
A. Yes.
Q.
Do you mean the stress that would come from above that part, from the
intersection? A. From above or right at the intersection or below the
intersection, the stress—
Q.
Where, more likely? A. The stress would be greatest when the load is at
the intersection.
Q.
At the intersection? A. Yes.
Q.
So that if the feet were right there about, right at the intersection, that
would be where the stress would be the greatest. A. Yes.
Q.
And that, in your opinion, is the likely way in which the damage was done to
these rails. A. Yes.
Mr.
Wilentz: That is all, Mr. Pope.
Re-Cross-examination by Mr. Pope:
Q.
Well, of course they could have been split in several other ways, couldn’t
they? A. You mean split with a tool?
Q.
No, I didn’t mean with a tool. I mean it [2349] is evident that the split came
from stress, from an over-strain. A. Yes.
Q.
Yes. Now that over-strain might have been applied in other ways, besides coming
up and down the ladder. A. Yes.
Q.
Certainly. A. Yes.
Q.
I understood you to tell Mr. Wilentz a few minutes ago that a part of this
ladder came into your possession in the month of May, 1932. Would you mind
telling us what part or parts of the ladder came into your possession at that
time? A. Pieces split from the rungs and the split portions of the rails.
Q.
So you did not cut those out yourself? A. No.
Q.
Those samples? A. Those diagonal splits, I mean.
Q.
Yes. A. On the rungs.
Q.
I see. And you took them to your laboratory for some purpose? A. They were
taken to the laboratory.
Q.
And studied. A. And studied, yes, sir.
Q.
Now that is all the parts of the ladder which came into your possession in May?
A. Yes.
Q.
When did you next see or have in your possession any part of the ladder?
A. The first part of March, 1933.
Q.
That was about a year afterwards? A. Yes.
Q.
And what part or parts of the ladder were in your possession at that time?
A. All of it.
Q.
The entire ladder? A. Yes.
Q.
And had it been disassembled, or did you disassemble it— A. No.
Q.
—at that time? A. I took it apart.
Q.
Well, did you take it apart before it was shipped? A. Shipped where?
Q.
To your laboratory. A. Yes, it never was all shipped to the laboratory.
[2350]
Q. It never was all taken to it? A. No.
Q.
Only parts of it? A. Yes.
Mr.
Reilly: Where did he get it: from Washington or where?
Q.
Now, in March 1933 from whom did you obtain the ladder? A. From Captain
Lamb.
Q.
At the barracks? A. Yes.
Q.
That was referred to? A. Yes.
Q.
Then what part did you send to Washington? A. I didn’t send any to
Washington.
Q.
Well, was any part of it sent to Washington? A. I understand the whole
ladder was taken to Washington.
Q.
Was that before or after you had it in March? A. Before.
Q.
Before, and do you know to what Department it was sent to Washington?
A. No, I am not certain.
Q.
Well, at any rate you did not handle it yourself in Washington— A. No.
Q.
—while it was there? A. I had nothing to do with it in Washington.
Q.
Nothing to do with it in Washington? A. No.
Mr.
Pope: That is all.
Mr.
Wilentz: Mr. Koehler, that is all. Will your Honor give us a moment? (Counsel confer.)
Mr.
Wilentz: The State rests.
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