WITNESS SWORN BY THE COURT.
MR. BOWMAN: I have a motion, Your Honor.
THE COURT: Take the stand.
MR. ERBECKER: At this time, Your Honor, defendant Gertrude Baniszewski, by counsel, would let the record show she waives the attorney-client relationship with Mr. Hammond and permits and authorizes him to testify in her behalf alone. Is that right?
GERTRUDE BANISZEWSKI: Yes.
MR. ERBECKER: Does that satisfy you, Mr. Hammond?
MR. HAMMOND: It satisfies me as far as Gertrude Baniszewski is concerned.
MR. ERBECKER: Does it satisfy the court?
THE COURT: I don't know.
JOHN R. HAMMOND , a witness called on behalf of defendant Gertrude Baniszewski,
being duly sworn by the court, testified as follows:
QUESTIONS BY MR. WILLIAM ERBECKER, ATTORNEY FOR DEFENDANT,
Q. State your name.
A. John R. Hammond.
Q. You are an attorney-at-law?
A. Yes, I am.
Q. Formerly, you were an attorney for defendant Gertrude Baniszewski? Were you?
A. Yes, I was.
Q. Now, Mr. Hammond -
MR. BOWMAN: I have a motion.
THE COURT: Do you want to ask a preliminary question?
MR. BOWMAN: I would like to have the jury excused before I say anything.
THE COURT: The jury will retire to the jury room with the alternate jurors for two or three minutes. Don't forget the admonition not to talk among yourselves and don't let anyone talk to you. Don't form or express an opinion till the case is finally submitted to you.
THE COURT: You may proceed, Mr. Bowman. In whose behalf?
MR. BOWMAN: John Baniszewski.
PRELIMINARY QUESTIONS (OUT OF THE PRESENCE OF THE JURY),
BY MR. FORREST BOWMAN, ATTORNEY FOR THE DEFENDANTS,
COY HUBBARD AND JOHN STEPHAN BANISZEWSKI
Q. Mr. Hammond, have you ever represented John Baniszewski?
A. Yes, I have.
Q. In connection with the case of State of Indiana vs John Baniszewski?
A. Yes, I have.
MR. BOWMAN: Cross examination.
MR. NEW: No questions.
MR. BOWMAN: Your Honor, the defendant John Baniszewski objects to Mr. Hammond being used as a witness by any one in this case. His presence as a witness is hopelessly prejudicial to John Baniszewski. It is conceivable I will be put in a position of having to object to questions put to him either by Mr. Erbecker or by Mr. New on cross examination, with respect to the attorney client privilege. To that extent, it is the same as the right against self incrimination. It should not be mentioned in the presence of the jury. He has already been prejudiced by the man getting on the witness stand and telling his name. I object to his use as a witness for that reason.
THE COURT: What do you intend to prove by this witness, Mr. Erbecker?
MR. ERBECKER: Things I deem relevant, germane to her defense, not mentioning John Baniszewski, et al, and certainly not in any manner attempting to elicit information about anybody standing trial in this court at the present time.
THE COURT: In doing so, Mr. New and Miss Wessner are entitled to cross examine. If a subject is touched on they have a right to cross examine. Can you tell me specifically what you intend to prove by this witness?
MR. ERBECKER: I intend to prove by this witness, Your Honor, the background of the defendant, the litigation he handled for her, namely divorce, certainly it is relevant to this case here. His participation in her defense prior to my getting into it, what steps he took prior to that time. If it were not relevant and pertinent, Your Honor, I would not put him on the stand.
THE COURT: Relevancy so far as the divorce action, the records would be the best record. On the matter of how you got in the case, that is nothing in the case, - nobody is questioning your being the attorney for her here and what other - what he did in the way of defense would not be evidence.
MR. ERBECKER: Oh, it would be evidence. We contend it would be. If the court does not allow her to have Mr. Hammond as a witness in her behalf, her defense is seriously curtailed, in my opinion and in her opinion too. We will bow to the ruling of the court. If that is the ruling of the court, we will bow to it. I would like to make a record.
THE COURT: Tell me what you intend to prove by the witness. If I have not covered every point, you name the points I have missed.
MR. ERBECKER: I prefer to ask the witness questions in front of the jury, Your Honor. She is entitled - under Article 1, Section 13, I think she is entitled to have that.
THE COURT: She is entitled to have witnesses on her behalf on matters introducible in evidence. To bring a witness in court on a question which objection will be sustained because of the nature of what you told me his testimony will be - the records are the best evidence on a matter of divorce. What he did in the way of defense is immaterial and irrelevant in a case of this kind.
MR. ERBECKER: I think it has a great deal of bearing, inasmuch as the evidence will show he one time represented more than one defendant here. I think it has a lot to do.
THE COURT: That is why the objection is being made, I imagine, by Forrest Bowman. Objection of defendant John Stephan Baniszewski is sustained to this witness being permitted to testify to matters defendant Gertrude Baniszewski says she intends to prove by this witness. Bring in the jury.
JURY PRESENT AND SEATED.
THE COURT: The objection of defendant John Stephan Baniszewski to this witness being a proper witness is sustained. Next witness, please.
MR. ERBECKER: Will the court permit me to make an Offer to Prove?
THE COURT: You made an Offer to Prove.
MR. ERBECKER: I did not get it all in.
THE COURT: I asked if you did. It is not good jurisprudence to run the jury in and out. It is not good trial procedure. I think you had ample opportunity to make your Offer to Prove.
MR. ERBECKER: The defendant would like to make an Offer to Prove.