The Case of the Duplicate Daughter

Chapter Twelve

Promptly at one twenty the officer brought Carter Gilman into court.

Mason glanced over his shoulder at the spectators who were already filling up the benches in the courtroom, put his arm along the back of the chair in which Gilman was sitting, kept his manner casual and said in a low voice, “All right, tell me the story, the true story.”

Mason turned as though about to pick up a paper, then again leaned toward Gilman. “All right, let me have it.”

Gilman said, “I’m not going to betray the person I’m trying to protect.”

Mason said, “I can’t protect anyone unless I know the facts — all of them.”

“Then you’d betray me.”

“Not you. You’re my client.”

“Then you’d betray the person I’m trying to protect, in order to save my life.”

Mason studied the man. “I might do just that.”

“That’s what I’m afraid of. I’ll never tell any living soul what I saw.”

“All right,” Mason said. “You’re going to get a jolt within a few minutes.”

“What do you mean?”

“I mean the police have Hartley Elliott in custody. He was in the bedroom over the dining room. He saw Glamis when she ran out of the workshop.”

Had Mason hit Gilman in the stomach the man couldn’t have shown greater surprise and dismay. “He... he saw her.”

“That’s right.”

“How do you know?”

“He told me.”

Gilman heaved a deep sigh. “Of all the luck! He would have had to be looking out that window.”

“Was it Glamis?” Mason asked.

“Yes. First Vera Martel walked up the driveway and entered the darkroom. I saw her. I made an excuse to get Muriell out in the kitchen so I could go out and investigate. Then in the few minutes that necessarily elapsed... well, I don’t know what happened. I looked out of the window and Glamis came running out of the workshop.

“It seemed Muriell never would quit popping in and out of that kitchen door. I had to wait until I was certain she was engaged in the cooking before I—”

The bailiff banged his gavel. “Everybody rise!”

The occupants of the courtroom got to their feet as Judge Alvord came in and took his place on the bench.

A side door opened and Hamilton Burger came into the courtroom to seat himself beside Edwardo Deering.

Judge Alvord seemed mildly surprised. “Am I to understand the district attorney is appearing in this case personally?” he asked.

“Yes, Your Honor,” Hamilton Burger said, and, turning, nodded coolly to Perry Mason.

“Very well,” Judge Alvord said. “Call your next witness.”

Deering said, “I call Hartley Grove Elliott.”

Burger arose to address the Court. “May the Court please,” he said, “Hartley Elliott is not only a hostile witness, I may state to the Court that we have been forced to bring him to court as a material witness who has been picked up and held in custody. Mr. Elliott not only endeavored to avoid a subpoena but was living in a motel under an assumed name and endeavoring to conceal his whereabouts from the authorities.”

“The Court will permit leading questions,” Judge Alvord ruled, “if the hostility of the witness becomes apparent. However, you can examine him in the regular manner until it becomes apparent that leading questions are required.”

The door from the witness room opened and a uniformed officer escorted Hartley Elliott into the courtroom.

Judge Alvord, watching Elliott curiously, said, “Raise your right hand and be sworn.”

Elliott raised his right hand, was sworn and took the witness stand.

“I’m directing your attention to the morning of Tuesday, the thirteenth of this month,” Hamilton Burger said, conducting the examination personally.

“Yes, sir,” Elliott said.

“Where were you on that morning?”

“I was at the home of the defendant, Carter Gilman, at 6231 Vauxman Avenue.”

“Were you a guest in that home?”

“I was.”

“What time did you arrive there?”

“Do you want to know when I first arrived there?”

“That is what the question calls for.”

“About two or two thirty in the morning, I would presume.”

“And what did you do?”

“I escorted Glamis Barlow to the house. We sat on the porch for a while, then she invited me in for a drink.”

“And then?” Hamilton Burger asked.

“Then I said good night and went out to start my car. She came to stand in the doorway and see me off. I had inadvertently left the ignition on. My battery had evidently been run down. When I tried to start the car the self-starter wouldn’t work.”

“Then what happened?”

“Miss Barlow suggested that I stay there in the house until morning, when I could get another battery put in my car and in the meantime have my own battery charged at a nearby service station.”

“Was that service station open at that hour of the morning?”

“Not when I tried to start the car, no. It opened at eight o’clock in the morning.”

“All right,” Hamilton Burger said. “What did you do then?”

“I went to bed.”

“Now then,” Hamilton Burger said, “I want to have the Court understand exactly where you were sleeping. Can you describe the bedroom?”

“It was on the northwest corner of the house.”

“That was toward the back of the house?”

“Yes.”

“From your room could you see the garage in back of the house?”

“Yes.”

“Are you familiar with the location of the darkroom used by Mrs. Gilman?”

“Yes.”

“And you are also familiar with the woodworking shop used by the defendant in this case, Carter Gilman?”

“Yes.”

“I refer you to People’s Exhibit B, a sketch of the floor plan of the house showing the location of the driveway, the garage, the workshop and the darkroom. Do you orient yourself on that diagram?”

“Yes.”

“Will you kindly point out to the Court exactly where your bedroom was located?”

“It was this bedroom on the second floor.”

“And that is directly over the dining room?”

“I believe so, yes.”

“Now then, I am going to ask you, when did you next see Glamis Barlow after you had said good night to her at an early hour in the morning on the thirteenth? When was the very next time you saw her?”

“I... I refuse to answer.”

“On what ground?”

“I simply refuse to answer.”

Hamilton Burger looked at Judge Alvord.

Judge Alvord said, “The witness will answer unless there is something in the question that would tend to incriminate or degrade him, in which event he can place his refusal to answer on those grounds and the Court will then pass upon the refusal.”

“I refuse to answer.”

“If you simply refuse to answer,” Judge Alvord said, “you are going to be held in contempt of this court.”

“I simply refuse to answer. I am not going to permit anything I may have seen to be used to crucify an innocent person.”

Hamilton Burger frowned.

“Very well,” Judge Alvord said. “If you refuse to answer the Court is going to hold you in contempt, and I may assure you, Mr. Elliott, that this contempt is not going to be a light sentence. This is a continuing matter. This is a murder case. Your evidence may be vital.”

“I refuse to answer.”

Hamilton Burger said, “If the Court please, I feel that the Court should use sufficient pressure to get an answer from this witness. Here we have a hostile witness who has evidence which may have a great bearing upon the solution of this case. It may furnish evidence not only as to motivation, but it may indicate the necessity of having two defendants jointly charged with this murder. The answer of this witness is of very great importance. I can assure the Court that, in view of the attitude of this witness, in view of the fact that the witness has already endeavored to conceal himself, there is every possibility that the witness will not be available at the time of trial in the Superior Court unless he is held in custody as a material witness. Even then, it is impossible to anticipate what his testimony may be after he has had an opportunity to think it over and to be coached by interested parties.

“It is vital to the case of the People that this witness be forced to answer this question here and now.”

Judge Alvord said, “Mr. Elliott, I am going to warn you that unless you answer this question you are going to be committed to jail for contempt of court and you are going to stay in jail until you do answer the question or until you show some legal grounds why the question should not be answered.”

“I refuse to answer.”

“Very well,” Judge Alvord said, “it is the judgment of this Court that you forthwith be committed to the sheriff of this county, that you be confined in the county jail for contempt of this court and that you be held in the county jail until such time as you either answer this question or show legal cause why you should not answer it.”

Hartley Elliott stood up, folded his arms, regarded the judge with steady, steely eyes and said, “I refuse to answer.”

Judge Alvord nodded to the officer.

The officer came forward, took Elliott’s arm and escorted him from the courtroom.

Hamilton Burger turned dramatically. “I call Paul Drake to the stand,” he said. “Paul Drake is here in the courtroom. Come forward and be sworn, Mr. Drake.”

Drake glanced in dismay at Perry Mason.

“Come forward and be sworn, Mr. Drake,” Judge Alvord ordered.

Drake came forward, was sworn and took the stand.

“You are a private detective?”

“Yes, sir.”

“Licensed as such?”

“Yes, sir.”

“And were so licensed on the fourteenth day of this month?”

“Yes, sir.”

“Are you acquainted with Hartley Elliott, the witness who was just on the stand?”

“Yes, sir.”

“I am going to ask you if, on the fourteenth day of this month, in the apartment of Hartley Elliott, number 6-B at the Rossiter Apartments on Blendon Street in this city, you and Perry Mason did not have a conversation with Hartley Elliott. Now, you can answer that question yes or no.”

Drake hesitated, finally said reluctantly, “Yes.”

“I am going to ask you,” Hamilton Burger said, “if at that conversation and in the presence of Perry Mason as attorney for the defense you did not ask Hartley Elliott what had happened on the morning of the thirteenth and if Hartley Elliott didn’t then and there tell you that he had seen Glamis Barlow at about eight thirty on the morning of the thirteenth, dash from the door of the workshop, previously referred to in this testimony and shown on the diagram, People’s Exhibit B, and run around the corner of the house.”

Mason got to his feet. “Just a moment, if the Court please,” he said. “I object to the question on the ground that it calls for hearsay testimony.”

“It is by way of impeachment,” Hamilton Burger said.

“There is nothing to impeach,” Mason said. “Even if Hartley Elliott had testified that he hadn’t seen Glamis Barlow on the morning of the thirteenth it would still be an improper question. An attorney cannot impeach his own witness.”

“He can if he shows surprise at the answer of the witness,” Hamilton Burger said.

“Are you prepared to state that you were surprised?” Mason asked. “Hadn’t Hartley Elliott told you before you ever put him on the stand that he would refuse to answer any question as to what had happened on the morning of the thirteenth?”

Hamilton Burger’s countenance showed that the shot had told.

“I am waiting to see if you can assure the Court such is the fact,” Mason said.

“That is immaterial,” Hamilton Burger blurted.

“No, it isn’t immaterial,” Mason said. “You can’t impeach your own witness unless you can show surprise. You can’t impeach any witness except by showing that at some time he has made a statement contrary to the testimony he has given, and even then the testimony by way of impeachment cannot be considered as evidence of the facts stated but only as evidence that the witness has made a contradictory statement at some time and that his veracity is thereby brought into question.”

“I think that is the law,” Judge Alvord said.

Hamilton Burger’s face reddened. “Your Honor,” he said, “the prosecution doesn’t want to be boxed in by a lot of technicalities. The prosecution has reason to believe that Perry Mason and Paul Drake, his detective, had a conversation with Hartley Elliott on the fourteenth, that as a result of that conversation Hartley Elliott hurriedly left his apartment shortly before the police arrived, that he went to a motel where he registered under an assumed name and tried to keep out of circulation so that he could not be found and couldn’t be questioned by the police or subpoenaed as a witness in this case.

“Now then, if the Court please, we believe that Hartley Elliott actually saw Glamis Barlow run from the workshop and that he told Paul Drake and Perry Mason that, and I think it is a reasonable inference that his disappearance was connected with the conversation he had with those two gentlemen.”

Judge Alvord glanced at Perry Mason.

Perry Mason said, “That’s a theory the prosecutor has, Your Honor, but I still submit that he can’t prove any fact in this case against the defendant by hearsay testimony. He has to produce some direct testimony if he wants to show motivation for the murder of Vera Martel, which apparently he is trying to show. He has to show that by direct evidence, not by what some witness may have told someone. If he wants to impeach a witness he has to be governed by the rules of impeachment.”

“And you object to the question?” Judge Alvord asked.

“We object to it on the ground that it is incompetent, irrelevant and immaterial, that it calls for hearsay evidence, that it is an attempt by the prosecutor to impeach his own witness.”

“The objection is sustained,” Judge Alvord said.

Hamilton Burger, his face flushed, snapped, “That’s all, Mr. Drake. You may step down from the stand. You may also remember that you are licensed as a detective and that that license is coming up for renewal.”

“If the Court please,” Mason said, “we object to the prosecutor threatening the witness and we respectfully submit that it is no breach of ethics to fail to answer a question which the Court has ruled calls for inadmissible testimony. In fact, if the witness had volunteered to answer the question after the objection was sustained, he would have been in contempt of court.”

Judge Alvord suppressed a smile. “Very well,” he said. “The district attorney is admonished not to attempt to intimidate witnesses. The Court has ruled the question called for an answer which would have been inadmissible, the objection to the question was sustained. The witness would have been out of order if he had volunteered the information. The rebuke is uncalled for, Mr. District Attorney.

“Call your next witness.”

Hamilton Burger, his face flushed with anger, said, “If the Court please, I’m going to get at this another way. Call Glamis Barlow to the stand.”

Judge Alvord stroked his chin reflectively. “Miss Barlow is in court?” he asked.

“I have had her subpoenaed, and since she is a material witness and I am afraid she may leave the jurisdiction of the court I arranged to have her taken into custody a few hours ago.”

“I don’t know just what you are trying to accomplish, Mr. District Attorney,” Judge Alvord said. “This Court is conducting a preliminary hearing. The only purpose of a preliminary hearing is to show, first, that a crime has been committed; second, that there is probable cause to believe the defendant is connected with the perpetration of the crime. The function of this Court is not to act as a grand jury.”

“I understand that, Your Honor,” Hamilton Burger said coldly.

“Now, I also realize,” Judge Alvord went on, “that under the law of this state, where a person has been called as a witness at a preliminary hearing and has either been cross-examined by the defense, or counsel for the defense has had an opportunity to cross-examine that witness, if anything should happen that at the trial of the case the witness is unavailable, either party can read the testimony of that witness into evidence; that is, the testimony of the witness as given at the preliminary examination.”

“Yes, Your Honor.”

“Now, therefore,” Judge Alvord went on, “it sometimes happens that a district attorney who has a witness who can give important testimony in a case and who he fears may have either died or removed from the jurisdiction of the court by the time the case is called for trial in the Superior Court, can produce a witness at a preliminary hearing and thereby fore-stall difficulties which may arise if the witness is not available at the time of the trial.”

“Yes, Your Honor,” Hamilton Burger said coldly.

Judge Alvord showed his exasperation. “I do not wish to superimpose my judgment upon that of the prosecution in this case,” he said. “Nor, on the other hand, do I propose to have this Court used to usurp the functions of a grand jury. I simply tried to make my observations in a manner friendly to both counsel, yet bearing in mind that it is the object of this Court to see that justice is done.

“Now, Mr. Prosecutor, you have established a prima-facie case. It is a well-known fact that once that has happened Courts usually bind the defendant over for trial, that even if the defense is able to put on evidence which raises a question as to the accuracy of the evidence introduced by the prosecution, the Court in a preliminary hearing will not take the responsibility of weighing that evidence or resolving the conflict in that evidence but will bind the defendant over for trial.

“The Court feels that it is, therefore, entitled to ask the prosecutor why the prosecution is so anxious to continue with these witnesses and a line of testimony which apparently is merely cumulative.”

“The prosecution desires to do so because it feels it is good policy to do so,” Hamilton Burger said. “The prosecution is dealing with a resourceful, tricky trial attorney who is accustomed to capitalize upon the dramatic in order to upset the conventions of courtroom precedent. The prosecution, therefore, insists that it have the right to put on its case as it sees fit and that the Court does not restrain the prosecution from calling witnesses.”

“Very well,” Judge Alvord said, his manner indicating that he was becoming progressively more angry, “the Court is not going to restrain the rights of the prosecution to put on witnesses. On the other hand, this is a court of justice and the Court does not intend to be used as a grand jury, nor does it intend to see any defendant deprived of his or her rights.

“Now then, Mr. District Attorney, you want to call Glamis Barlow to the stand. It is quite apparent that before this case is finished there is every possibility Glamis Barlow will be joined as a codefendant in a trial in the Superior Court. The Court does not propose to have Miss Barlow called as a witness simply in order to entrap her into a situation where she may have forfeited any of her constitutional rights.

“You want to call Miss Barlow as a witness. Go ahead and call her.”

“Glamis Barlow,” Hamilton Burger said in an unnecessarily loud voice.

An officer opened the door of the witness room and escorted Glamis Barlow to the stand.

“Now, just a moment,” Judge Alvord said, after the witness had taken the oath. “Miss Barlow, you are being called as a witness in this case by the prosecution. The Court feels it is only fair to you to warn you that testimony has been received indicating a strong possibility that you may be implicated in the murder which is the subject of this investigation, or that an attempt may be made to implicate you as a defendant.

“The Court advises you that you are not called upon to answer any question which, in your opinion, may tend to incriminate you. The prosecution does not have any right to call you as a witness in a case in which you are the defendant. While you are not formally a defendant in this case, you may later on become one. The Court wants you to understand your situation and the Court further advises you that if you wish to confer with counsel at any time the Court is going to give you the opportunity to do so. Do you understand?”

“Yes, Your Honor,” Glamis Barlow said.

“And,” Judge Alvord went on, “anything you may say now, any answer you may give to questions now asked you can be used against you at any time. Do you so understand?”

“Yes, Your Honor.”

“The Court has committed one witness for contempt for failing to answer a question. This Court will, however, be far more charitable with a witness who is obviously being called in an attempt to lay the foundation for a later prosecution, and where the idea seems to be to surprise her into making a statement before she has the advice of counsel.”

“I resent the Court’s remarks,” Hamilton Burger said. “I feel they are uncalled for.”

Judge Alvord said, “I do not agree. I advise this witness that if she wishes to refuse to answer any question there will be no contempt until after she has been given an opportunity to confer with counsel of her own choosing in order to see if she cares to answer such question.

“You may proceed, Mr. District Attorney.”

Hamilton Burger turned to the witness savagely. “Are you acquainted with the decedent, Vera M. Martel, or were you acquainted with her during her lifetime?”

“Objected to, if the Court please,” Mason said. “Incompetent, irrelevant and immaterial.”

The Court said, “I will overrule the objection to this question.”

“I did not know Vera M. Martel,” Glamis Barlow said.

“I will direct your attention to the morning of the thirteenth of this month and ask you if, between the hour of eight and eight thirty, you were at your residence at 6231 Vauxman Avenue?”

“I was.”

“Between those times, or at any other time during the morning, did you have occasion to go to the workshop of the defendant, Carter Gilman? Now, by that workshop I am referring to this workshop indicated on the diagram, People’s Exhibit B. I want to be sure there is no misunderstanding. I am indicating on the diagram the workshop in question. Can you orient yourself according to this diagram, Miss Barlow?”

“I can.”

“Did you go to that workshop?”

“Just a minute,” Perry Mason said. “That is objected to as incompetent, irrelevant and immaterial. It is further objected to on the ground that the question is leading and suggestive, that it is an attempt on the part of counsel to cross-examine his own witness, that very apparently this question is designed for the purpose of trapping the witness into a position where she will be forced to be a witness against herself by the time the case comes to trial in the Superior Court; that the constitutional rights of the witness are being detoured by a technique which is not a legitimate part of the preliminary hearing in this case.”

“The Court is inclined to sustain that objection,” Judge Alvord said.

“If the Court please,” Hamilton Burger said angrily, “this witness has been advised of her constitutional rights. I am asking her now if she went to that particular room on that particular date at that particular time, and I have a right to an answer to that question. The witness is not charged with any crime as yet.”

“Will you state that it is not your intention to charge her with a crime as soon as this preliminary hearing is finished?” Judge Alvord asked.

“I will make no statement whatever to Court or counsel in regard to the intentions of the prosecution. I am at the moment calling a witness who, I believe, is familiar with certain facts in this case. I want to have her testimony made a part of this record. I am within my rights, I am not abusing the process of the Court, and I insist that the witness answer that question.”

“I want to answer that question,” Glamis Barlow shouted. “I wasn’t anywhere near that room.”

Hamilton Burger’s face twisted into a triumphant grin. “Let’s not misunderstand each other, Miss Barlow,” he said suavely. “This diagram, People’s Exhibit B, shows the ground-floor plan of the house at 6231 Vauxman Avenue in this city as it existed on the thirteenth day of this month, and in the question that I asked you I indicated the workshop shown on that diagram — and so that there can be no misunderstanding about it I will now ask you to write your name on the diagram indicating the room in question which you said you did not visit on the morning of the thirteenth between the hours of eight and eight thirty a.m.”

“If the Court please,” Mason said, “I object on the ground that this is an attempt to entrap the witness and to deprive her of her constitutional rights.”

Glamis Barlow did not wait for a ruling by the Court but walked up to the diagram which had been spread out on the court blackboard.

“Just a minute, Miss Barlow,” Judge Alvord said, “do you understand that question?”

“I certainly do.”

“Do you wish to write your name upon the portion of the diagram which is indicated in the question?”

“I do.”

“Do you realize that by so doing you are giving testimony under oath as a witness in a case wherein it is quite possible you may be a codefendant by the time the case comes to trial in the Superior Court?”

“I don’t care where it is tried,” Glamis Barlow said. “I wasn’t anywhere near that room any time during the morning of the thirteenth. I slept until nearly ten o’clock and outside of leaving my room to go in the hallway and talk with Muriell Gilman I didn’t go anywhere before at least nine thirty. Then I dressed and had breakfast and left the house and didn’t go anywhere near that workroom.”

“Very well,” Judge Alvord said. “The Court is satisfied that you have been advised as to your constitutional rights. The Court doesn’t particularly approve of this procedure but I am satisfied there is no law against it. I will state to the witness, however, that even if she did not claim the constitutional privilege of refusing to incriminate herself the Court would be inclined to sustain this objection, were it not for the attitude of the witness. Go ahead and write your name on that diagram if that is what you wish to do.”

Glamis Barlow wrote her name in a firm hand on the diagram.

Hamilton Burger said gloatingly, “Now you have written your name on a section of the diagram which is labeled ‘Workroom of Defendant’ and is indicated by a rectangle with measurements to scale included in a larger rectangle labeled ‘Garage, Darkroom and Workshop.’ Is that correct?”

“That is correct.”

“And you have no difficulty in orienting yourself as to that diagram and what is indicated thereby?”

“None whatever.”

“When you say that you did not go into that room, you mean the workroom maintained by the defendant as a woodworking room in the southern portion of a house which is in back of the building at 6231 Vauxman Avenue, and which house or structure includes a woodworking shop on the south, a darkroom maintained by your mother, Nancy Gilman, immediately adjacent thereto, and is, in turn, adjoined on the north by a garage having room for three cars. Is that correct?”

“That is correct.”

“Cross-examine,” Hamilton Burger said triumphantly to Perry Mason.

“No questions,” Mason said.

“Call your next witness,” Judge Alvord announced.

“Call Mrs. Lamay C. Kirk,” Hamilton Burger said.

The door of the witness room was opened and a rather plump, pleasant-faced woman in the early forties was escorted into the courtroom. She walked gracefully with a free, swinging motion of hips and shoulders, held up her right hand, was sworn, and took the witness stand.

“Where do you reside, Mrs. Kirk?” Hamilton Burger asked.

“6227 Vauxman Avenue.”

“Now, that is where, with reference to the house occupied by the defendant, Carter Gilman?”

“It is directly south of that house.”

“Are there any houses between you and the Gilman house?”

“No, sir.”

“Is there a driveway?”

“No, sir. There is a hedge which extends partway between the two houses, but the driveway to the Gilman house is on the north of their house and the driveway of our house is to the south.”

“I will ask you if you have occasion to remember the thirteenth of this month at an hour between eight and eight thirty in the morning.”

“I do.”

“What were you doing at that time?”

“I was sitting in a breakfast nook in my house.”

“Where is that breakfast nook?”

“It is on the northwest corner of the house.”

“And looking to the north from the windows of that house what do you see?”

“Well, we see a portion of our yard, a portion of the backyard of the Gilman house, a part of the back of the Gilman house; that is, the door to the screened porch on the back of the Gilman house, and we see the house which is used by the Gilmans as a garage and combination workshop and darkroom.”

“Are you familiar with that house?”

“I see it almost every day.”

“Are you acquainted with Glamis Barlow?”

“I am.”

“How long have you known her?”

“Ever since we lived on Vauxman Avenue.”

“How long has that been?”

“About two years.”

“Have you talked with Glamis Barlow?”

“Many times.”

“Did you see Glamis Barlow on the morning of the thirteenth, between the hours of eight and eight thirty a.m.?”

“I object, if the Court please,” Mason said, “on the ground that the question is leading and suggestive, on the further ground that it is incompetent, irrelevant and immaterial, and that, at most, it is an attempt on the part of the prosecution to impeach its own witness, Glamis Barlow.”

“We’re not trying to impeach anyone,” Hamilton Burger said, “we’re trying to establish the facts in this case.”

“I would like to ask what possible connection the appearance of Glamis Barlow in this case might have with the guilt or innocence of the defendant, Carter Gilman,” Mason said.

“I’ll be glad to answer that question,” Hamilton Burger snapped. “Vera Martel was engaged in a business transaction which directly affected Glamis Barlow. We don’t know the exact nature of that business but we can prove, at least by inference, that Glamis Barlow met Vera Martel on the morning of the thirteenth and that this defendant, seated in the dining room of his home, witnessed that meeting and, hurriedly excusing himself, went to the workshop in order to talk with Vera Martel; that while the defendant was in that workshop and while Glamis Barlow was also present, the defendant strangled Vera Martel, loaded her body in the trunk of his automobile and hurriedly left the house, leaving unfinished a portion of his breakfast; that the defendant thereupon located the automobile of Vera Martel and, with the assistance of Glamis Barlow as his accomplice, drove the Martel car to the point where the body was disposed of. The defendant attempted to make the death of Vera Martel seem to be the result of an automobile accident.”

“Then it is your contention that both Carter Gilman and Glamis Barlow are responsible for the death of Vera Martel? That Glamis Barlow at least became his accessory after the fact?”

“That is a correct statement of my position,” Hamilton Burger snapped.

“Now, Your Honor,” Perry Mason said, “the vice of this sort of an examination becomes apparent. The prosecution is trying to use this Court as a means by which he can entrap the person whom he intends to name as a co-defendant in the case just as soon as this hearing has been concluded. We insist that it is incompetent, irrelevant and immaterial whether or not Glamis Barlow was in that building at those times, unless the district attorney can positively show first that Vera Martel was there at that time, that the defendant was there at that time and that the murder took place at that time and place.”

“We intend to show it by inference,” Hamilton Burger said.

“Until the proper foundation can be laid, the question of the movements of Glamis Barlow becomes incompetent, irrelevant and immaterial,” Perry Mason said, “at least as far as the present question is concerned. It can now only be construed as an attempt to impeach the veracity of Glamis Barlow who was the prosecution’s own witness. They can’t impeach their own witnesses. They are bound by her testimony. That is the penalty the prosecution must pay for calling a potential defendant to the stand and forcing her to answer questions before she can have the benefit of counsel.”

Judge Alvord said, “I am inclined to agree with the defense, Mr. Burger. At this time, at any rate, the movements of Glamis Barlow would seem to have no possible bearing on the guilt or innocence of this defendant, unless you first show the presence of Vera Martel in that room at that time.”

Hamilton Burger flushed. “I feel that the Court is penalizing me because I disagreed with Your Honor in regard to the expediency of calling Glamis Barlow as a witness.”

“You may feel any way you want,” Judge Alvord said. “I am trying to protect the substantial interests of justice. I advised you some time ago that you had apparently made out a prima-facie case against this defendant as far as a preliminary hearing is concerned. You insisted on going ahead in order to lay a foundation for what now appears to be an attempt to entrap a codefendant in a situation where she would make a statement under oath before she had been advised that she was going to be a codefendant in the case.”

Hamilton Burger said, “Very well. I am forced to accept the ruling of the Court, but before I do so I am going to lay a broader foundation. Mrs. Kirk, were you alone in your breakfast nook at the time you mention?”

“No, sir. My daughter, Madeline, was with me.”

“How old is Madeline?”

“She is nineteen.”

“That is about Glamis Barlow’s age?”

“A year younger.”

“Do you know of your own knowledge whether your daughter Madeline and Glamis Barlow are friendly?”

“They are quite friendly in a casual sort of way; that is, as neighbors. They don’t have double dates together and they move in different social circles, but they are quite friendly as neighbors.”

“Do you know of your own knowledge how long this friendship has been going on?”

“For approximately two years.”

“And Madeline was with you in the breakfast nook at the time you mention?”

“Yes.”

“How were you seated?”

“We were seated at a table and looking out the window.”

“Were you both on the same side of the table?”

“Yes. That is, it’s not exactly a table. It’s a sort of counter — I might say, a combination bar and table — a food bar — on which food can be served. It looks out to the north and over the backyard.”

“Was your daughter facing the same direction that you were?”

“Yes, sir. She was seated beside me.”

“Did you comment to your daughter on anything unusual that you saw at that time?”

Judge Alvord glanced at Mason. “Any objection on the part of the defense?”

“No objection,” Mason said.

Judge Alvord said, “Well, it seems to me counsel is entitled to lay the foundation for his testimony but this is certainly going far afield. The defendant isn’t bound by any conversation which may have taken place between this witness and her daughter.”

“There is no objection by the defense,” Mason said. “As a matter of fact, we welcome the situation, because once the prosecution has opened the door by showing a part of this conversation we are entitled to show it all on cross-examination.”

Judge Alvord smiled slightly and said, “Under those circumstances, the witness may answer the question.”

“Just a minute, just a minute,” Hamilton Burger said hastily. “I... on second thought, Your Honor, I will withdraw the question.”

“Very well,” Judge Alvord said.

“I am now going to renew my request,” Hamilton Burger said. “I ask this witness to relate to the Court what it was she saw that was unusual on the morning of the thirteenth while she was in the breakfast nook, facing toward the workroom of the defendant in this case.”

“Same objection,” Mason said.

“Same ruling,” Judge Alvord said. “At this time the objection is sustained.”

Hamilton Burger made no attempt to conceal his exasperation. He said, “May I have a moment, Your Honor?” and walked over to engage in a whispered consultation with Edwardo Deering.

Deering seemed to have a very positive idea in regard to an approach and after a few moments Hamilton Burger nodded.

“Very well,” he said, “I will temporarily withdraw this witness from the stand, with the idea, if the Court please, that I am going to lay a proper foundation so that the question I want her to answer will be relevant.”

“Very well,” Judge Alvord said. “I may once more point out, Mr. Prosecutor, that you have established a prima-facie case, that the deeper you go into this case the more avenues you open up, the more possibility there is that complications may develop.”

“I think I know what I’m doing, if the Court please,” Hamilton Burger said.

“I hope you do,” Judge Alvord commented drily. “The Court wishes to state, however, that Carter Gilman is the defendant in this case. But quite apparently your more recent witnesses have been called for the purpose of involving Glamis Barlow, who is not a defendant. The Court feels that if witnesses are to be called with the idea of involving Glamis Barlow, she should be a defendant and, as such, should have counsel who could subject the witnesses to searching cross-examination.”

“I think I understand the Court’s position,” Hamilton Burger said, “and I’m quite certain I understand what I have in mind.

“I now wish to call Glenn Beaumont McCoy.”

The door of the witness room opened and McCoy, a tall, slightly stooped individual in the early fifties, walked with loose-jointed deliberation to the stand, raised his hand, took the oath, and then seated himself on the witness chair.

“Where do you reside, Mr. McCoy?” Deering asked, while Hamilton Burger, seated at the table, was busily engaged in scribbling notes on a pad of legal foolscap.

“Nevada.”

“Where were you residing on the thirteenth of this month?”

“Las Vegas, Nevada.”

“What is your occupation?”

“I am a card dealer.”

“Are you acquainted with Glamis Barlow?”

“I know her by sight.”

“How many times have you seen her?”

“I can’t recall offhand. Several times.”

“Where have you seen her?”

“At the place where I am employed.”

“Did you see her on the evening of the thirteenth of this month?”

“I did.”

“Where?”

“Now, just a moment, if the Court please,” Mason said. “I wish to interpose an objection on the ground that all of this is incompetent, irrelevant and immaterial.”

“I propose to connect it up,” Deering said.

“That isn’t sufficient,” Mason said. “An attempt is now being made to try Glamis Barlow as a codefendant with Carter Gilman. While I am representing Carter Gilman as his attorney I am not representing Glamis Barlow and I am not prepared to cross-examine witnesses who may testify to things that would involve Glamis Barlow in the commission of this crime. I think she is entitled to her own counsel.”

“I think so, too,” Judge Alvord said.

“Just a minute,” Hamilton Burger announced, getting to his feet. “Before the Court rules on this objection I should like to state that it is the contention of the prosecution that Carter Gilman killed Vera Martel, that he took wax impressions of the keys in her key container, that he had keys made from those impressions, that he delivered those keys to Glamis Barlow and that she, in accordance with a common purpose, went to Las Vegas, Nevada, on the evening of the thirteenth and, using the keys given her by the defendant, entered the Las Vegas office of Vera Martel for the purpose of searching through papers in order to find some incriminating document.”

“Incriminating to whom?” Judge Alvord said.

“Incriminating to both Glamis Barlow and Carter Gilman,” Burger said.

“If the Court please,” Mason said, “I think that is the wildest conjecture on the part of the district attorney. If Glamis Barlow entered that office for the purpose of getting a document which incriminated her in some way that is an entirely different case.”

“Not if she got the key which opened the office from Carter Gilman,” Hamilton Burger said. “And, furthermore, in order to show a joint purpose and a collaboration, we propose to show that fingerprints of the defendant, Carter Gilman, were found in the Las Vegas office of Vera Martel, and that this office as well as the Los Angeles office had literally been wrecked by someone who had pulled papers from the files and strewn them over the floor in a frantic search for some documents.”

Judge Alvord was visibly impressed by Burger’s statement.

“Can the prosecutor show when those fingerprints were made?” Mason asked. “Can he show those fingerprints were not made at a time prior to the death of Vera Martel?”

“The time is immaterial,” Burger snapped.

Judge Alvord pursed his lips, then slowly nodded. “In a public office, Mr. Prosecutor, an office where the public is invited by implication, fingerprints are not necessarily incriminating evidence unless it can be shown those prints were made at a time when the public was supposed to be excluded or because of a direct connection with some crime.”

“Not when the man who made those prints is shown to have transported the body of his victim in his automobile,” Hamilton Burger protested.

Judge Alvord frowned. “This is a very close question, gentlemen,” he said. “I have been somewhat impatient with the district attorney’s methods here, but in view of this latest statement and the possible testimony of this witness I am beginning to see an overall pattern which may be well within the permissible strategy of counsel for the People.”

“I still insist that it’s incompetent, irrelevant and immaterial,” Mason said, “until the district attorney first proves that the keys came from this defendant and that the document which Glamis Barlow was seeking was jointly incriminating.”

“I am inclined to think, in view of the manner in which the evidence is now developing,” Judge Alvord said, “that this may be permissible as tending to prove motivation. However, I will state to the prosecution, as I have stated several times before, that the prosecution has already made out a prima-facie case. If it intends to go ahead and try to prove a lot of details, such as motivation, it is going to open the door to a showing by the defense on those same matters.

“I would also like to point out that if these matters which would properly be a part of the case in the Superior Court are brought into the case at this time, and if it should then appear that the defendant is able to undermine the theory of the prosecution on any one of these matters, that weakens the case of the prosecution.

“Attempting to prove too much and failing in part of it may be just as fatal as attempting to prove too little.”

“I think I know what I am doing,” Hamilton Burger said. “I want to get this matter before the Court. I want to get these witnesses on the stand. I want to get their testimony in his case. I am willing to take my chances in the event any one of these factors in the case are discredited.”

“Very well,” Judge Alvord said. “I think, however, I would like to have a statement from you first as to what you expect to prove by this witness.”

“We expect to prove that this witness is acquainted with Glamis Barlow, that he has seen her several times in Las Vegas, that he has positively identified Glamis Barlow as the young woman he saw surreptitiously leaving the office of Vera Martel.

“The office of Vera Martel in Las Vegas is not in an office building but is on the second floor of a building which has a gambling establishment on the lower floor. Some of the upstairs rooms are devoted to apartments and there are a few offices. It happens that the office of Vera Martel is directly opposite the apartment occupied by this witness, an apartment which is given to him as part of his compensation as a card dealer in the casino downstairs.

“We expect to show that this witness saw Glamis Barlow surreptitiously leave the office of Vera Martel. We expect to show that the next morning the office of Vera Martel was found to have been burglarized and that files had been looted, papers strewn over the floor and that there was every evidence of a hasty search for some document, a search which presumably was successful.”

“May I ask the precise time that this took place?” Mason asked.

“The time was precisely nine fifteen in the evening,” Hamilton Burger said. “The witness can fix the time by reason of a radio program that had just given the time. And, if the Court please, we also expect to show the fingerprints of the defendant, Carter Gilman, were found in that office.”

“We renew our objection,” Mason said. “This is all by way of inference. Let the prosecution first prove that the defendant in this case turned over a key to Glamis Barlow.”

“I think we can sufficiently establish that fact by inference at this stage of the case,” Hamilton Burger said.

“Moreover,” Mason said, “a witness can’t testify as to a person’s manner in leaving a room as to that manner being surreptitious. That is sheer conclusion.”

“Not in this case,” Hamilton Burger snapped. “There are a dozen things that show a consciousness of guilt: the tiptoe exit, the look up and down the corridor, the glance back over the shoulder, the quiet closing of the door.”

“Then let him testify to those dozen things,” Mason said, “and I’ll cross-examine him on each one. But he can’t give his conclusion.”

Judge Alvord thought for a few moments, then reached a sudden decision. “The Court is going to take this matter under advisement,” he said. “I’m going to look up some authorities this afternoon and this evening, and tomorrow morning at ten o’clock I’ll make a ruling.

“Does the defense have any objection to a continuation of the case until ten o’clock tomorrow morning?”

“We have none,” Mason said.

“Very well,” Judge Alvord said, “the case is continued until ten o’clock tomorrow morning. The Court will take its ruling under advisement and announce its decision on this point at ten o’clock tomorrow morning. In the meantime, the defendant is remanded to the custody of the sheriff. Court is adjourned until ten a.m. tomorrow. All witnesses under subpoena will return at that time.”