The Case of the Drowsy Mosquito

Chapter 15

George V. Moffgat was full of eager efficiency and impatience to get on with the matter in hand. But he went through the motions of being politely solicitous. “You’re certain you feel like going ahead with these depositions, Counselor?”

“I think I can make it all right,” Mason said.

“Why don’t you wait a day or two?”

“Oh, it’s all right. I’ll go ahead. I’m feeling a little wobbly, that’s all.”

Jim Bradisson said, “Any time will suit me. Don’t bother about inconveniencing me, Mr. Mason. I appreciate the circumstances and I’ll be glad to...”

“No. It’s all right,” Mason told him.

Moffgat turned to the notary public with the alert eagerness that characterizes a Boston bull pup about to pounce on a ball as soon as it is tossed by his master.

Moffgat announced, “This is the time and place heretofore fixed for taking the deposition of Peter G. Sims, one of the defendants in the action of Come-Back Mining Syndicate versus Sims et al., and of James Bradisson, the president of that mining company. The defendants are represented by Mr. Perry Mason. I represent the plaintiff. The witnesses are both present ready to be sworn.”

The notary public said, “This deposition is being taken pursuant to stipulation, gentlemen?”

“That’s right,” Mason said.

“Correct,” Moffgat announced.

“The witness, Sims, will be sworn,” the notary public said.

Pete Sims looked inquiringly at Perry Mason.

“Stand up,” Mason said.

Sims, a gaunt man in the fifties, with the whimsically woebegone facial expression of a man who has wrestled with life and been worsted in the fight, stood up.

“Hold up your right hand.”

Sims raised his right hand.

The notary public made something of a ceremony of administering the oath. “Do you solemnly swear that the testimony you are about to give in the case of Come-Back Mining Syndicate versus Sims et al., will be the truth, the whole truth, and nothing but the truth, so help you God?”

There was awed solemnity in Pete Sims’ voice. “I do,” he promised, then sat down, crossed his legs, and looked with cherubic innocence at George Moffgat.

Moffgat opened the brief case, jerked out a file of papers, hitched a small suitcase into position near his right hand, glanced at the court stenographer who had been selected to take down everything that was said, then turned to the witness. “Your name is Peter Sims. You are the husband of Nell Sims. You are familiar with the mining claims known as the Shooting Star Group?”

“That’s right,” Pete agreed in a drawl of disarming frankness.

“Some six months ago, Mr. Sims, you had a conversation with Mr. James Bradisson, did you not?”

“I’m talking with him all the time,” Pete said, and then added, “off and on.”

“But about six months ago you had a specific conversation in which you told him about discovering certain ore on the Shooting Star claims, didn’t you?”

“Well, now,” Sims drawled, “I just can’t remember.”

“You mean you can’t remember a conversation you had ninety days ago?”

Sims said, “I guess I’ll have to explain.”

“I guess you will,” Moffgat said sarcastically.

“Well,” Pete said, “it’s like this. I’ve got one of these here split personalities you read about. Most of the time I’m me, but every so often Bob takes charge — and then I just ain’t me.”

Moffgat snapped, “You’re under oath, Mr. Sims.”

“Sure I’m under oath,” Mr. Sims said.

There was gloating triumph in Moffgat’s voice. “Go right ahead, Mr. Sims,” he said. “Remember you’re under oath. Tell us about your split personality and why you can’t remember your conversation with Mr. James Bradisson.”

“Well, it’s like this,” Pete explained, glancing guilelessly at the somewhat startled notary public. “Personally, I’m a pretty good sort of a fellow. I can take a drink or I can leave it alone. I’m ambitious and I want to get ahead, and I’m truthful. I’m in love with my wife and I think I’m a pretty good husband.”

Mason said, “Make your answer responsive to the question, Mr. Sims.”

Moffgat snapped, “He considers it responsive and so do I. Go right ahead, Mr. Sims. I want you to explain about this split personality. Remembering, of course, that you are now under oath.”

“That’s right,” Sims said. “Well, I call this other personality Bob. He may have some other name. I don’t know what it is. To me, he’s just Bob. — Well, I’ll be getting along all right, and all of a sudden Bob will come and take possession of me. And when that happens, I just pass out. I just don’t know what Bob does while he’s sort of in charge of things.”

“Do you,” Moffgat asked triumphantly, “have any preliminary warning when this secondary personality is about to take possession of you?”

“Only a sort of a thirst,” Sims said. “I’ll get this awful thirst and sort of head toward some place where there’s a cool drink of beer, and about the time I get that beer ordered, Bob will take charge. — Now I was going to tell you about the difference between me and Bob.”

“Go right ahead,” Moffgat said, “That’s what I want to hear.”

“Well, Bob can’t leave booze alone. He’s an awful drunkard. That’s what makes it so annoying to me. Bob will be sort of runnin’ things and take me out and get me awful drunk. Then when I wake up with a headache, Bob is gone. It wouldn’t be so bad if Bob would stick around to wrestle with the hangover, but he never does that. He pushes me out and has all the fun of doing the drinking, and then goes away and leaves me to handle the headache that comes the next day.”

“I see,” Moffgat said. “Now getting back to this sale of the mine to Mr. Bradisson who was acting on behalf of the plaintiff in the action. You have no recollection of what you told him about that mine?”

“I only know I was talking to him about mining property, and then all of a sudden I felt that funny thirst, and Bob must have come in then because the next I remember was waking up with an awful hangover about two days later, and a lot of money in my pocket.”

“And,” Moffgat said, “you gave him certain samples of ore which you told him you’d personally taken from the Shooting Star Mine, didn’t you?”

“Well, now, I can’t remember about that.”

“Would you say that you did, or that you did not?”

“Well, I think there’s a pretty good chance that he might have got the ore from me while Bob was in the driver’s seat.”

“Now then,” Moffgat went on, “that ore had not been obtained from the Shooting Star Mining Group. That ore consisted of some samples that had been taken by you from specimens Mr. Banning Clarke was keeping in the lower drawer of a roll-top desk in his room, isn’t that right?”

“I’m not saying anything about those samples because I can’t remember a thing in the world about them.”

“Now this secondary personality which you call Bob didn’t assume charge until after you had started talking with Mr. Bradisson about the Shooting Star Group?”

“Well, I can’t remember exactly. We started talking about mining claims — and of course, since my wife owned this mining property, I may have said something about it. That is, before Bob came. After that, I don’t know what happened.”

Moffgat’s voice became silky. “I understand your position exactly, Mr. Sims. You, yourself, under no circumstances would be guilty of any fraudulent representation, but there are times when you are not exactly responsible, times when this secondary personality takes over and you are placed in the embarrassing position of being held responsible for things which were done without your knowledge and entirely without your volition.”

“That’s right,” Sims agreed. And then, after a moment’s thought, added with great emphasis, “That’s right!” He beamed at the lawyer with that warm friendliness which is inspired by perfect understanding.

“Now then,” Moffgat resumed, “on this day in question, you certainly had no idea, when you started out, that this impish secondary personality would lead you to defraud Mr. James Bradisson, did you?”

“I most certainly didn’t. Mr. Bradisson is my friend and I wouldn’t do a thing in the world to harm him. I just wouldn’t harm a hair of his head.”

Bradisson rubbed a well-manicured hand over his practically bald dome, and let his eyes soften into a twinkle.

Moffgat went on suavely, “You yourself had no intention, not even the most remote intention, of trying to sell any mining claims to James Bradisson that day, did you?”

“Absolutely not.”

“Now, had Bob been in possession of your personality at any time shortly prior to this conversation you had with Bradisson?”

“You mean that same day?”

“Oh, that day or within a day or two of that time,” Moffgat said carelessly.

“No, he hadn’t. He’d been letting me alone pretty much. And that should have been a warning to me too, because Bob only stays away about so long, then the thirst catches him and he comes in and takes charge.”

“I understand. But Bob definitely hadn’t been in what you refer to as ‘the driver’s seat’ during any time within three or four days prior to your conversation with Bradisson?”

“That’s right.”

“Then,” Moffgat sneered, dropping his suave manner, and appearing suddenly belligerent, “how do you account for the fact that you went to that conference with Mr. Bradisson with your pockets loaded with samples of ore that you had filched from the lower drawer in Banning Clarke’s roll-top desk?”

Expression popped into Sims’ face. His complacency was suddenly jarred as the full impact of that question dawned on him. He shifted his position uneasily in the chair.

“Go ahead, answer that question,” Moffgat stormed at the dismayed witness.

“Well, now... Now wait a minute. You ain’t sure those rocks came from Clarke’s desk.”

Moffgat triumphantly produced a small suitcase, opened it, thrust a rock out in front of the witness. “You see that specimen of ore?”

“I do,” Sims said without touching it.

“And you see this one which is marked with a little cross which has been chiseled into the surface of the rock. Isn’t this marked rock one of the specimens you gave James Bradisson, and isn’t that rock absolutely identical with this other specimen which came from Banning Clarke’s group of mines — the ones that are known as the Sky High Group?”

Sims fidgeted for a moment more, then suddenly blurted, “I never gave that rock to Bradisson.”

“You mean you didn’t give him this rock with the cross chiseled on it — the rock I am now showing to you?”

“No, I didn’t,” Sims said positively. “It’s his word against mine. I didn’t give it to him.”

“At no time during the conversation, or during the negotiations leading up to the signing of this contract with James Bradisson, did you give him this rock and tell him that it had been taken by you from this Shooting Star mining group, and represented a new strike you had made in that group of mines?”

“No, sir, I didn’t.” Sims’ manner was now dogged and stubborn.

“You’re certain of that?”

“Absolutely.”

“How can you be certain?” Moffgat asked, smiling triumphantly down at the witness. “You don’t remember a thing of that conversation. Your split personality was in charge at that time — Bob, as I believe you have mentioned, was ‘in the driver’s seat.’”

The witness ran his left hand up along his head, scratched at the hair over his left temple. “Well, now,” he said, “my memory’s beginning to come back mighty clear on that. Maybe it wasn’t because Bob had taken over. Maybe it was just because I’d got a little drunk and couldn’t remember things very clearly.”

“During the time that you were discussing this mine with Mr. Bradisson, you had been drinking?”

“That’s right.”

“And couldn’t remember things very clearly?”

“That’s right.”

“Then how can you testify positively that you didn’t give Mr. Bradisson this rock, together with certain other rocks, and tell him that these were specimens of a body of ore you had just uncovered in your wife’s claims — the Shooting Star mining group?”

“Well,” Sims said, squirming uncomfortably, “I’m beginning to remember it a lot clearer now.”

“Would you say that your memory was clear on the subject?”

“Well, pretty clear.”

“Then this secondary personality that you have referred to as Bob wasn’t in charge at all. He didn’t enter into the picture?”

“Well, I–I don’t think he did. Not the way things look now.”

Moffgat sarcastically slammed his file of papers closed, popped it into his brief case and slid the zipper in a dramatic gesture. “That,” he announced, “is all!”

He turned to Mason and said, “Well, Counselor, you certainly aren’t going to contest this case any further, in view of the circumstances. Are you?”

Mason said gravely, “I don’t know. I’ll give the matter some thought.”

“Humph!” Moffgat said. “It’s so dead open and shut that there’s nothing to it.”

“Don’t forget,” Mason said as Moffgat started to get up, “there’s another deposition to be taken — that of James Bradisson.”

“But surely, Mr. Mason, you don’t want to take Bradisson’s deposition now.”

“Why not?”

“Because the deposition just taken is completely determinative of the case. You can’t possibly avoid the charge of fraud now. Your own witness has virtually admitted it. If you went into court you wouldn’t have a leg to stand on.”

“But,” Mason insisted, “I would like to take Bradisson’s deposition. Even without a leg to stand on, I can still talk.”

“Well, I don’t see what for,” Moffgat snapped testily. “I’m not aware of any rule of law that says you can avoid fraud after that fraud has once been established, by browbeating the defrauded party.”

Mason said, “I want to take his deposition — and I intend to do it.”

“Stand up,” Moffgat said irritably to Bradisson. “Hold up your right hand and be sworn. If Mr. Mason is going to derive any comfort from questioning you, I suppose we’ll have to let him.”

Bradisson rose, held up his right hand, listened to the oath, said, “I do,” and then grinned at Perry Mason. “Go right ahead, Mr. Mason. Although I don’t think I have anything to add to what Pete Sims has said.”

“You’re an officer of the Come-Back Mining Syndicate?”

“President.”

“And have been such for how long?”

“Oh, about a year or so.”

“You inherited a substantial block of stock from your sister, Mrs. Banning Clarke?”

“Yes.”

“And as president of the corporation, you determine its policies?”

“Isn’t that what a president is for?”

“I’m merely trying to get the facts in the record,” Mason said.

“Well, I’m no stuffed ornament. I was elected by the directors to run the company, and I’m trying to do so — to the best of my ability,” he added virtuously.

“Exactly. You’re acquainted with Nell Sims, the wife of Pete Sims, the witness who just testified?”

“That’s right.”

“How long have you known her?”

“Oh, I don’t know. A year or so, perhaps a few months longer than that. I met her originally in Mojave.”

“Where she was running a restaurant?”

“Yes.”

“And you also met Pete Sims up there?”

“I think so. I may have.”

“And for the last year you have been more or less intimately associated with them. They’ve been living in the same house. She has been acting in the capacity of general cook and housekeeper?”

“That’s right.”

Moffgat said, “I object to all this waste of time. You can’t change the fact of fraud if you question this man until Doomsday.”

Mason paid no attention to the interruption, went on in a conversational, intimate tone with his examination.

“And during that time you’ve had occasion to see Pete Sims rather frequently?”

“Quite frequently. That is — what I might say was in between intervals.”

“What intervals?”

“When he isn’t on a spree. I suppose he would express it as ‘when Bob isn’t in the saddle.’”

“So you’ve known about Bob for some time?”

“Oh, yes.”

“Now about six months ago, Mr. Sims returned from the desert and told you about a strike he had made?”

“Yes. He said he’d been doing some assessment work on his wife’s claims and had made this strike. He thought the ore was very rich indeed. He showed me the ore. I thought it was very good ore. I told him that the syndicate might be willing to take the claims over at a fair price.”

“And you subsequently agreed on a price?”

“We bought the claims, yes.”

“And how much of the price has been paid?”

“We paid the original cash payment and then filed this suit to rescind the contract on the ground of fraud and be relieved of any further liability on payment of purchase price.”

“When did you first learn that you had been defrauded?”

“Well, the report of the assayer came in and then, weeks later, it came to my attention that the peculiar combination of minerals in the ore was exactly the same and in exactly the same amounts as appeared in another claim that was a part of the corporation properties — claims we had optioned from Banning Clarke.”

Mason said, “Had you had much mining experience when you became president of the corporation?”

“I hadn’t had much experience on the ground, but I knew a great deal about mining, and I had a natural aptitude for it. I picked up the practical points rather quickly — unusually fast, to be more truthful than modest.”

“So that you consider yourself thoroughly competent to be the president of a mining corporation having rather extensive interests?”

“If I hadn’t, I never would have accepted the presidency. I have made a detailed study of all forms of mining, Mr. Mason, and particularly of the properties of the Come-Back Mining Syndicate and of the problems pertaining to those properties.”

“And you’re a fair judge of character, Mr. Bradisson?”

“What do you mean by that?”

“I mean that after you had an opportunity to see and study Mr. Sims, you had a pretty good idea of his general character?”

“Well, yes — if you want to go into that.”

“You yourself went out and looked over his mining properties before the deal was closed?”

“Naturally. I would hardly obligate my stockholders to pay out a large sum of cash for something I hadn’t looked at personally.”

“You went down in the little shaft?”

“It isn’t so little. It’s down some fifty feet, and then it runs on a drift back about one hundred and thirty-five or forty feet.”

“You inspected the ore in that shaft?”

“Certainly.”

“Before you signed up the agreement to buy?”

“Of course. The rich samples I found were planted.”

“You’ve heard about Mr. Sims’ mischievous second personality, the inscrutable Bob, who forces Pete’s unwilling body to depart from the narrow path of rectitude and into the ways of inebriation?” Mason asked.

Bradisson laughed. “I certainly have, Mr. Mason. You’ll pardon me if I laugh, but I thought you expressed that rather neatly.”

“Thank you. And you’ve had an opportunity to hear many of these stories of what Bob has done when he’s taken over the control of Mr. Sims’ body?”

“Oh, yes.”

“And I take it you’ve formed something of an opinion of Bob?”

Bradisson said, “Let’s not misunderstand each other, Mr. Mason. This so-called Bob has absolutely no existence whatever. Pete Sims simply uses him as a scapegoat. He’s an alibi. Whenever Pete gets a little out of line or does something he shouldn’t, he claims that he has no memory of what occurred, and that this secondary personality has taken over. This so-called Bob is merely his way of making excuses to his wife. She may or may not believe him. At any rate, she does nothing to discourage his prevarications. Because of that, Pete Sims has developed a rather childish, immature attitude. His wife swallows his falsehoods with such ease and apparent gullibility that the man doesn’t even bother his brain to think up good lies. — Just by way of illustration, you can see how easily Mr. Moffgat trapped him today — although I don’t want to take any of the credit from Mr. Moffgat for a brilliant piece of cross-examination. However, the fact remains that Sims has a childish faith in the efficacy of his own falsehoods that keeps him from using ordinary care in thinking them up. This business of a secondary personality has been too easy for him.”

Mason’s face and voice both showed surprise. “You mean that he has deliberately built up the fiction of this secondary personality?”

“Of course,” Bradisson said, his voice and manner showing some disdain for Mason’s attempt at acting. “Surely, Mr. Mason, you didn’t expect to establish that there actually was any such secondary personality.”

“Of course I haven’t had the benefit of such an intimate acquaintance as you. I have merely met the man, but he seemed sincere enough when he told me about his secondary personality. I was hoping you could confirm his statements.”

“Don’t insult my intelligence, Mr. Mason.”

“And you mean that Mr. Sims deliberately lies about this?”

“Of course.”

“How long have you known this?” Mason asked.

“Almost ever since I first met him. It should be apparent to anyone of discernment. He is a thoroughly disreputable old reprobate, and an awful liar. Remember that you asked for this, Mr. Mason. There’s a certain likable streak in him, but he’s just a periodic drunkard and a congenital liar as well as being basically dishonest. He tries to account for his shortcomings by telling falsehoods even a child wouldn’t believe.

“Understand me, Mr. Mason, you’re the one who brought this up. But since you’ve brought it up, I don’t mind telling you frankly that I wouldn’t trust him, to use a colloquial expression, as far as I could throw a bull by the tail. He’s a crooked old reprobate with no conscience, and only a limited intelligence.

“He’s clever in just one thing, and that’s his ability to apparently get drunk, pretend there’s some information he’s trying to keep from spilling, and then let you pry it out of him in an unguarded moment that he’s struck it rich. In other words, he’s a very, very good actor, and that’s all. He can act a lie infinitely better than he can tell one.”

“Thank you,” Mason said. “That’s all.”

“That’s all?” Moffgat asked in some surprise.

“Yes.”

Moffgat’s face was crafty. “You understand, Mr. Mason, that I have a right to cross-examine this witness?”

“Naturally.”

“Despite the fact that he is my client.”

“I understand.”

“Upon any matter concerning which you have examined him in direct examination.”

“That’s my understanding of the law.”

“And you yourself, Counselor, have opened the door.”

Mason merely made a little bow.

“Now then,” Moffgat said, turning to Bradisson with a smirk, “I will ask you, Mr. Bradisson, if you are familiar with the reputation for truth and veracity of this Mr. Peter Sims.”

“I am.”

“What is it?”

“It’s terrible.”

“He isn’t considered trustworthy among those who know him?”

“Absolutely not.”

“Would you believe his testimony under oath?”

“Definitely not.”

“That’s all,” Moffgat announced triumphantly.

Mason said, “I guess that completes our depositions.” He rose, stretched and yawned.

“And you’re seriously going to proceed with the contest of this action?” Moffgat asked him.

Mason turned on him. “Go back to your office and read up on the law of fraud, Counselor. You’ll find that it takes a lot more than a fraudulent representation to give a person a cause of action for fraud. The representation must be believed. It must be acted upon. It must be relied upon. Your own client has now stated that he considers Pete Sims an awful liar; that he wouldn’t trust him as far as he could throw a bull by the tail; that he wouldn’t place any reliance in anything he said; that he himself is a mining expert; that he himself made an examination of that mine before he purchased it. Therefore, it is obvious that the thing he relied upon was his own judgment, his faith in his own infallibility. — There are times Counselor, when it pays dividends to have a poor reputation. — After you’ve read the law of fraud once more, see whether you want to go ahead with your side of the case.”

Bradisson turned to regard Moffgat. It needed only one look at the sudden consternation he saw on his lawyer’s face to make him realize the deadly accuracy of Mason’s statement.

“But my client hasn’t said that he relied on his own judgment,” Moffgat said. “That is, he didn’t specifically so state.”

“Wait until a jury hears that deposition read,” Mason grinned. “The man with the natural aptitude for absorbing mining knowledge; who was thoroughly capable of directing the destinies of a big mining corporation before he permitted himself to become president; who didn’t need to call in any mining engineer to help him; who made his own inspection and then went ahead and closed the deal before the reports of assay had been returned. — Don’t argue with me. Save your argument for a jury. And incidentally, Counselor, you aren’t convincing your own client and you aren’t convincing yourself.”

Moffgat said, “I think you misunderstood the witness’s statement in regard to the investigation he himself had made of the property, Mr. Mason. The witness will have an opportunity, of course, to read through his deposition and sign it before it’s filed. I happen to know the facts of the case myself, and I know that Mr. Bradisson’s investigation was not of the kind that would prevent him rescinding the contract on the ground of fraud.”

And Moffgat flashed his client a warning glance to make certain that Bradisson remained silent.

Mason smiled. “Read the case of Beckley versus Archer, 74 Cal. App. 489, which holds that even where one didn’t make an independent investigation, where he fully disbelieved the representations made by the seller as to the character of the property, he still can’t rely upon fraud, no matter how flagrant the fraud may have been. Bear in mind that your client stated that he wouldn’t trust Pete Sims as far as he could throw a bull by the tail.”

Moffgat combed his mind for an answer and could find none. Abruptly he turned on Mason and said, “I’ll discuss that angle of the case with you in court, Mr. Mason. In the meantime, there’s another matter that I wish to take up with you.”

“What is it?”

“You hold the stock which Banning Clarke held in the Come-Back Mining Syndicate,”

“That’s right. I do.”

“I take it that you know a will has been discovered.”

“Has it indeed?”

“A will dated some time ago leaving all of his property to his wife, or in the event of his wife’s death, to her heirs at law, excluding, however, Mr. James Bradisson.”

“Indeed,” Mason commented noncommittally.

“I am sorry,” Moffgat went on punctiliously, “that Mr. Clarke felt it necessary to put that proviso in his will. It is a direct, unnecessary and entirely unwarranted slap in the face — a gratuitous disparagement of a man who has always tried to be his friend.”

Bradisson looked properly virtuous.

“However,” Moffgat went on, “be that as it may, Mrs. Bradisson is the sole heir at law, and, as such, will inherit the property. She is filing the will for probate. Now, naturally, Mr. Mason, you won’t try to keep that stock, but will turn it over without any delay to the executrix.”

“Why should I?” Mason asked.

“Because we know that sale was not an actual sale at all.”

“Who says it wasn’t?”

“Will you claim that any consideration was actually paid for the transfer?”

“Certainly.”

“Would you mind telling me what that consideration was?”

“I see no reason for doing so.”

“I think you are aware, Mr. Mason, that as an attorney you were acting in a fiduciary capacity, that any contract you made with your client would be presumed fraudulent, that any undue advantage you took of your client would be a very serious matter — might possibly become grounds for an accusation of unprofessional conduct.”

“That sounds like a threat, Moffgat.”

“Perhaps it is — and I don’t make idle threats.”

“I’m glad to hear it.”

“And do I understand that, despite my demand, you refuse to surrender this stock?”

“That’s it in a nutshell.”

“That, Mr. Mason, is going to make things very, very unpleasant. It will create a certain amount of personal friction between us.”

“Oh well,” Mason said, “differences of opinion make horse races and lawsuits.”

“But this is more than a mere piece of litigation. It will be necessary for me to contest the ethics of your actions. The controversy will become personal and bitter.”

“That’s fine! I like combat. I like the acrimonious personalities of a grudge fight. — And now, if you’ll excuse me, I’ll return to my office.”

And Mason walked out of the office without so much as a backward glance from the doorway.