The Case of the Moth-Eaten Mink

Chapter 17

Hamilton Burger, the big, barrel-chested district attorney, who managed to clothe himself with an air of unctuous dignity in keeping with his concept of the office he held, arose as soon as the case had been called, and said, “I wish to make a few preliminary remarks, Your Honor.”

“Very well,” Judge Lennox said.

“I wish to object to Perry Mason as attorney for the defendants in this case. I believe the Court should disqualify him from appearing as such attorney.”

“On what grounds?”

“Mr. Mason is a witness for the prosecution. Lie has been subpoenaed by the People as a witness. I expect to call him and examine him as such.”

“Mr. Mason is a witness for the prosecution?” Judge Lennox asked incredulously.

“Yes, Your Honor.”

“That’s rather unheard of, for an attorney for the defense—”

“Nevertheless, Your Honor, I have carefully gone over the legal grounds,” Hamilton Burger said, “and Mr. Mason is fully competent as a witness. He is the main witness on whom I must rely to prove a very important link in the chain of evidence. I expect to call him as my witness. He is under subpoena and he is, therefore, a necessary witness in the case. I can assure the Court and Counsel that I consider him a most important witness.”

“Have you been subpoenaed, Mr. Mason?” Judge Lennox asked.

“Yes, Your Honor. A subpoena was served on me.”

“And you are appearing as attorney for both defendants?”

“That’s right.”

“Your Honor,” Hamilton Burger said, “I am proceeding jointly against both Morris Alburg and Dixie Dayton on a charge of first-degree murder, and I expect to be able to prove that they not only conspired to bring about the death of George Fayette, but they committed an overt act in furtherance of that conspiracy, and thereafter they did actually murder George Fayette.

“I hold no particular brief for the decedent. His record, as the defendants will probably attempt to show, is not that of an estimable citizen, but rather is interspersed with occasional tangles with the law. There are also intervals during which we are unable to account for where he was or what he was doing. It is quite possible that the defendants thought Fayette might be endeavoring to blackmail them in connection with another crime which, of course, Your Honor, is entirely separate and apart from this present case, except that evidence will be introduced for the purpose of showing motivation.”

“You are, of course, aware of the fact that there can be no evidence of another crime, Mr. District Attorney. The defendants are called upon to meet one accusation and...”

“And that rule, Your Honor,” Hamilton Burger interrupted firmly and positively, “is subject to the well-recognized exception that when evidence of motive has to do with another crime, that evidence is perfectly admissible.”

Judge Lennox said, “I have always enforced the rule rather strictly in this court. I think there is a tendency at times to relax this rule far too much. Quite often, under the guise of proving motivation or a similar pattern of crimes, an attempt is made to prejudice, the defendant.”

“I understand, Your Honor, but when you hear the evidence in this case I think you will realize that it falls well within the exception, and that the prosecution is amply justified in introducing evidence of another crime, the murder of a policeman who...”

“Another murder?” Judge Lennox interjected.

“Yes, Your Honor.”

“By both defendants?”

“No, Your Honor. By the defendant Dayton. That is, she was involved in the murder of a young police officer, and it was because of an attempt to cover up her connection with that crime that this murder took place... It may well be that the decedent, George Fayette, was blackmailing her in connection with that other murder.”

“Well,” Judge Lennox said, “this presents an interesting situation. Now, let’s get back to discussing one thing at a time. You object to Perry Mason appearing as attorney for the defendants?”

“Yes, Your Honor.”

“What do you have to say with reference to that, Mr. Mason?”

“I say it’s none of his business,” Mason said curtly.

Judge Lennox flushed.

“Without meaning any disrespect to the Court,” Mason added. “I’ll handle my own business, and the district attorney can handle his.”

“It’s unethical,” Burger said.

“You watch your ethics, and I’ll take care of mine,” Mason snapped.

“Come, come, gentlemen,” Judge Lennox said. “Let’s not have personalities interjected in this case. Do you think Mr. Mason is disqualified, Mr. District Attorney?”

“I think he should disqualify himself.”

“There is no specific statute against it?”

“It is a matter of good taste and good ethics.”

“We’ll discuss ethics at the proper time and the proper place,” Mason said. “As far as good taste is concerned, I now have a matter of my own to present. I submit to Your Honor that when a district attorney influences a young woman, who is one of my witnesses, to resign her position, hurl an accusation at her employer that he is trying to get her to perjure herself, and arranges to have the press present while she is so accusing her employer in a telephone conversation — that when he bribes the young woman to take such a step by seeing that she is offered a position in one of the county offices at a greater salary...”

“I object to the use of the word ‘bribe,’” Hamilton Burger said.

“Pardon me,” Mason said with elaborate sarcasm. “Perhaps I should have said that you influenced her to take such a step.”

“I didn’t do any such thing,” Hamilton Burger said. “She did whatever she did of her own free will and accord.”

“You’d arranged for the job in the county office before she picked up the telephone to submit her resignation,” Mason said.

Hamilton Burger said, “Nonsense.”

“Deny it,” Mason challenged.

“I don’t have to.”

“You don’t dare to.”

Judge Lennox banged his gavel. “Now, gentlemen, I don’t know what this is all about. I haven’t read the papers in connection with this case, but obviously there is acrimonious feeling between Counsel. I want it controlled. I want Counsel to confine themselves to the trial of the case. You go ahead, Mr. District Attorney, and put on your first witness, and the Court will rule on matters as they come up.”

“Specifically, I object to Mr. Mason appearing as attorney in the case.”

“Is there any law that disqualifies me?” Perry Mason asked.

“As I have previously pointed out to the Court, it’s a matter of ethics.”

Mason said to Judge Lennox, “If the district attorney wishes to set himself up as an arbiter of good taste and good ethics, I submit that using an offer of county employment to get a young woman to quit her position and make a public accusation...”

“We won’t go into that, Mr. Mason,” Judge Lennox said, “and as far as this Court is concerned, Mr. District Attorney, Mr. Mason is not actually disqualified. If you have subpoenaed him as a witness, and if he is called as a witness he’ll have to take the stand. If he takes the stand he’ll be subject to the same rules of examination as any other witness. Now proceed with your case.”

“Very well, Your Honor,” Hamilton Burger said. “My first witness will be the autopsy surgeon.”

In swift, kaleidoscopic sequence of routine witnesses, Hamilton Burger laid the foundation for the murder charge: the discovery of the body of George Fayette, the nature of the bullet wound, the recovery of the bullet, the microscopic characteristics of the bullet for the sake of subsequent firearms identification.

“I’ll now call Carlyle E. Mott.”

Mott took the witness stand and the district attorney qualified him as an expert on firearms and ballistic evidence.

“Mr. Mott, I call your attention to the bullet, People’s Exhibit A, which has been identified as the fatal bullet which brought about the death of George Fayette. I will ask you if you have examined that bullet.”

“I have.”

“Through a microscope?”

“Yes, sir.”

“You have made photographs of that bullet?”

“Yes, sir.”

“Have you been able to determine the type of weapon from which that bullet was discharged?”

“I have.”

“What weapon was that?”

“The weapon which I have here in my hand. A Smith and Wesson police special, thirty-eight caliber, with a three-inch barrel.”

“We ask that that be introduced in evidence as People’s Exhibit B,” Hamilton Burger said.

“No objection,” Mason said.

“Cross-examine,” Burger snapped.

“No questions,” Mason said.

Hamilton Burger, caught completely by surprise, blurted, “You mean you aren’t going to ask him about—” He stopped abruptly, catching himself as he realized what he was saying.

“Call your next witness,” the judge said.

A distinctly annoyed Hamilton Burger called as his next witness the officer who had arrested Morris Alburg as he stepped from a taxicab in front of Mason’s office.

The officer testified to making the arrest and to finding the revolver in Morris Alburg’s possession, the revolver from which the bullet had been fired which had killed George Fayette.

“Cross-examine,” Burger said.

“How do you know this is the same gun?” Mason asked the officer.

“Because I took the number of the weapon, sir.”

“Did you make a note of that number in writing?”

“Certainly.”

“Where?”

“In my notebook, a notebook I always carry with me.”

“You know what that number is?”

“Certainly.”

“You can give us that number?”

“Yes, sir. It is S64805.”

“You’ve remembered it all this time?”

“Yes, sir.”

“Then you didn’t need to write it down, did you?”

“I wrote it down in order to be safe.”

“And this is the same number you’ve written down?”

“Yes, sir.”

“You may know it’s the same number that’s on the weapon, but how do you know it’s the same number you wrote in your notebook?”

“Because I looked at the notebook just before I came to Court to make sure.”

“Oh, then you weren’t sure?”

“Well, I was just guarding against the possibility of any mistake.”

“And you arrested Morris Alburg on the morning of the third?”

“At about nine o’clock. Yes, sir.”

“And took the gun from him at that time?”

“Yes, sir.”

“When did you write the number in your notebook?”

“I’ve already told you. That’s the number of the gun. I wrote it down so there’d be no mistake.”

“When you arrested Morris Alburg?”

“Approximately, yes.”

“What do you mean by approximately?”

“At almost the same time.”

“Within five seconds of the time you made the arrest?”

“Certainly not.”

“How many seconds?”

“I can’t answer that. I don’t compute time that way. That’s the number of the gun I took from the defendant, Morris Alburg.”

“What did you do with that gun?”

“I put it in my pocket as evidence.”

“Then what?”

“I gave it to the district attorney, who in turn gave it to the ballistics expert, Carlyle E. Mott.”

“And it was at Mott’s suggestion that you wrote the numbers in the notebook?” Mason asked, his manner casually matter-of-fact.

“That’s right.”

“At the time the gun was given to him?”

“No, when he returned it to the district attorney with his report. He said that it would be necessary to identify this gun at all stages of the proceedings.”

“So then you wrote down the numbers on a gun which Mott handed you?”

“Well, it was the same gun.”

“How do you know?”

“I could tell by looking at it.”

“What distinctive markings were on this particular gun which enabled you to distinguish it from any other Smith and Wesson gun of similar caliber and design?”

The witness was silent.

“Don’t you know?”

“If I could look at the gun,” he said, “I think I could tell you.”

“Certainly,” Mason said sarcastically. “You’d pick up the gun and turn it over and over, hoping you could find some scratch or some identifying mark, but tell us now what identifying mark was on the gun.”

The officer looked bewildered for a minute before answering, “I can’t recall.”

The judge turned to the discomfited witness. “You took a revolver from the defendant Alburg, is that right?”

“Yes, sir.”

“And you turned that over to the district attorney?”

“Yes, sir.”

“Who, in turn, turned it over to the ballistics expert?”

“Yes, sir.”

“And sometime later, when the ballistics expert returned that weapon to the district attorney, with a report that it was the weapon which had fired the fatal bullet, it was suggested by the ballistics expert that it would be necessary to have an absolute identification of this weapon in order to enable it to be introduced in evidence?”

“Yes, sir.”

“And you were then asked how you could identify this gun. Is that right?”

“Well, generally.”

“Is that right, or isn’t it?”

“Mr. Mott suggested that I should write the number in my notebook.”

“So you took out your notebook and wrote it down at that time?”

“Yes, sir.”

“And was there then some discussion about what your testimony would be?”

“Well, not at the time. That was later.”

“Call your next witness,” Judge Lennox said to Hamilton Burger, and his manner was distinctly frigid. “This witness is excused.”

Burger braced himself for a new attack and said, “My next witness will be Arthur Leroy Fulda.”

Fulda took the stand, was sworn and testified to his conversation with Morris Alburg, to his installation of the sound equipment in the Keymont Hotel, to the conversations that he heard and the recordings that were made.

The witness identified half a dozen plastic discs, explained how they were fed into a machine in relays so that there was a continuous transcription of conversation.

“Now then, Your Honor, I move to introduce these discs in evidence,” Hamilton Burger said.

“I’d like to examine the witness briefly on this particular point,” Mason said.

“Very well,” Judge Lennox said. “Go right ahead.”

“How do you know these are the same records that were left in the hotel room?”

“Actually, Mr. Mason, I can only testify as to the first one. As to the others, all I can say is that they look like records which I left on the machine. I have been informed that they were taken from the hotel room in which I had left my equipment.”

“That’s all,” Mason said. “No objection to the introduction of the records.”

“I assume you mean Record Number One?” Judge Lennox said.

“No, the whole batch,” Mason said. “A witness who is as truthful as this witness is quite likely to have an opinion I can trust. If he thinks these are the same records I’m willing to let them go in, subject to my right to object to any conversation that may be on those records as incompetent, irrelevant and immaterial, but the records themselves may be received in evidence.”

Judge Lennox smiled and said, “Well, that’s refreshing candor on the part of Counsel — and on the part of the witness. Very well, the records will be received as evidence.”

“Now, then, in regard to these records,” Hamilton Burger said, “there is a conversation in which the defendant, Dixie Dayton, states in so many words to Perry Mason that her co-defendant, Morris Alburg, is out murdering George Fayette. I want the Court to listen to that conversation. I want the Court to note that Mr. Mason accepted this information and did absolutely nothing about it. He did not communicate with the police. He did not...”

“Are you now trying to show that 7 am a conspirator?” Mason asked.

“You’ve criticized my methods of preparing a case,” Burger said. “I want the Court to realize exactly what happened.”

Mason said, “Then you’d better show it by evidence, not by a statement.”

“You don’t deny that this conversation is on this record, do you?”

“I deny that Dixie Dayton at any time told me her co-defendant, Morris Alburg, was planning to murder George Fayette.”

“But the record is right here. You can hear her voice.”

“How do you know it’s her voice?” Mason asked.

“I’m sure it is.”

“Then get on the stand and testify it is, and I’ll cross-examine you, and the judge can reach an opinion as to your assumption that it’s the same person.”

“I don’t have to do that,” Burger said. “I can do it another way.”

“Go ahead and do it, then.”

Burger said, “Miss Minerva Hamlin will be my next witness... Miss Hamlin, come forward and be sworn, please.”

Minerva Hamlin marched to the witness stand, her manner that of a young woman who is intent upon creating an impression of brisk competence.

Under Burger’s questioning, she testified with close-clipped, precise, well-articulated words, telling her story in a manner which unquestionably impressed Judge Lennox.

She described the emergency, the fact that she was called on to leave the switchboard and go at once to the Keymont Hotel, the arrangements that she made with Paul Drake by which she would flash an identification signal when the young woman in question started to leave the hotel, her acting the part of a maid in the hotel, and the time she spent watching room 721 in order to see who emerged from it.

“And finally,” Hamilton Burger asked, “someone did emerge from it?”

“Yes, sir.”

“A man or woman?”

“A woman.”

“Did you have an opportunity to look at this woman?”

“That was what I was there for.”

“That is not exactly an answer to the question,” Hamilton Burger pointed out. “Did you...”

“Yes, I did.”

“You noticed her particularly?”

“Yes, sir.”

“And you saw this woman emerge from room 721?”

“I did. Yes, sir.”

“Who was that woman?”

“Miss Dixie Dayton, one of the defendants in this case.”

“Will you please designate the woman.”

“The one I am pointing at.”

“The record doesn’t show the one that you’re pointing at. May I ask Miss Dayton, the defendant, to stand up?”

“Stand up,” Mason said.

Dixie Dayton stood up.

“Is that the woman?”

“That is the woman.”

“Let the record show,” Hamilton Burger said, “that the identification is that of the woman who stood up, and the woman who stood up is Dixie Dayton, one of the defendants in this case.

“What did you do when this woman left the room?” Burger asked.

“I followed her.”

“Where?”

“She took the elevator. The elevator went up. I ran up one flight of stairs. I was on the seventh floor, and there were only eight floors in the hotel. I therefore knew she couldn’t go up more than one floor. I felt that I could get up there almost as soon as the elevator.”

“And you did so?”

“Yes.”

“And where did this woman go?”

“She went to room 815, the room where the body of George Fayette was subsequently discovered by the police.”

“This same woman?” Burger asked.

“This same woman.”

“You’re positive?”

“Positive.”

“And who was that woman?”

“I have already told you.”

“I mean, who was the woman who went to this room 815?”

“The defendant, Dixie Dayton.”

“The same person who stood up? The same person you have previously identified?”

“Yes, sir.”

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

Minerva Hamlin turned to face Perry Mason with eyes that flashed antagonism, a manner that plainly showed she intended to give tit for tat, and that no adroit cross-examination was going to confuse her.

Mason’s attitude was that of an older brother asking an impulsive younger sister to confide in him.

“Miss Hamlin,” he said, “you didn’t know Dixie Dayton, did you?”

“I had never seen her until she stepped out of that room.”

“You didn’t know who she was at the time?”

“I saw her, I didn’t know her name, no.”

“And the police showed you a photograph of Dixie Dayton and asked you if that was the same woman, didn’t they?”

“Yes.”

“What did you tell them?”

“I told them it was.”

“Didn’t you tell them that you thought it looked like the same woman?”

“Well, if it was the same woman it would look like her, wouldn’t it?”

There was a ripple of merriment in the courtroom at her tart rejoinder.

“That,” Mason said, “is quite true. Since you ask me the question I’ll be only too glad to answer it, Miss Hamlin. You might pardon me also if I point out that if it had not been a photograph of Miss Dayton, that it still might have looked like her. Photographs are frequently confusing.”

“They don’t confuse me. I have a very keen eye.”

“And yet you couldn’t make an absolutely positive identification the first time you saw that photograph, could you?”

“Well, I told them — well, it depends on what you mean by ‘positive.’ ”

“Well,” Mason said smiling, “what do you mean by it?”

“When I’m positive, I’m positive.”

“So one would gather,” Mason said. “You weren’t quite as positive then as you are now.”

“Well, I’ve had a chance to see the woman herself since then. The photograph didn’t — well, it...”

“Do you mean it didn’t look like her?”

“No, it looked like her.”

“But you were still a little doubtful?”

“I wanted to be perfectly fair, Mr. Mason.”

“And you still do, don’t you?”

“Yes, sir.”

“Now,” Mason said, “when you first saw that photograph you couldn’t be absolutely positive. You weren’t positive. You said you thought it might be the same woman, but you couldn’t be certain.”

“That was when I first glanced at it.”

“So you studied the photograph, didn’t you?”

“Yes, sir.”

“And did you become more positive as you studied the photograph?”

“Yes, sir.”

“However, you weren’t completely convinced from just looking at the photograph, were you?”

“No, sir. What completely convinced me was when I saw the defendant in a police show-up, or shadow box, or whatever it is they call them.”

“And then you were certain?”

“I picked her out of a line of five women who were standing in the box. I picked her out unhesitatingly.”

“And that was after you had been studying her photograph?”

“Yes, sir.”

“Now, let’s be frank, Miss Hamlin, isn’t there at least a distinct possibility that you had studied that photograph so carefully in making a conscientious attempt to determine whether it was or was not a photograph of the person you saw leaving the room, that when you saw the defendant your mind almost subconsciously identified her with the photograph, and therefore you made the identification?”

“When I saw that woman in the line-up I was absolutely positive she was the woman who had been leaving the room in the hotel.”

“Now, would you be good enough to explain to the Court just where you were when the woman left the room in the hotel.”

“You mean room 721?”

“Yes.”

“I was down at the end of the corridor by the fire escape, pretending to go about my duties as maid.”

“And what particular duties were you doing at the time?”

“I pretended to be knocking on a door, as though I were checking towels.”

“I assume from your manner that you’re a rather remarkably efficient young woman, are you not, Miss Hamlin?”

“I try to be.”

“And in acting the part of the maid you did your conscientious best to act just as a maid would do under similar circumstances?”

“Mr. Mason, I am interested in amateur theatricals. I have studied acting. I think I have the ability to be a very good actress. I try to be efficient in everything I do. I realize that in order to portray a person and act a part successfully, you have to visualize that you actually are that person.”

“So you visualized that you were the maid?”

“Yes, sir.”

“And went about doing things just as a maid would do?”

“Yes, sir.”

“And a maid wouldn’t take too keen an interest in a woman who stepped out of a room and walked down the corridor, would she?”

“Just a glance, that’s all.”

“So you, making a good job of acting the part of the maid, gave just a glance?”

“Yes, sir.”

“Now, why had you gone to the end of the corridor by the fire escape?”

“I think that is quite obvious, Mr. Mason. I didn’t want to have the person who emerged from that room inspect me too closely. Therefore I went to the far end of the corridor. I knew that when she emerged from the room, no matter where she was going, whether she went to the elevator or the stairs, she would have to walk along the corridor. Under those circumstances, she couldn’t meet me face to face.”

“In other words, she turned her back to you?”

“Yes. But not before I had seen her face when she emerged from the room.”

“How far was the door of that room from where you were standing at the end of the corridor?”

“I don’t know. Twenty or thirty feet perhaps.”

“How was the corridor illuminated? What kind of lights?”

“It was a dim illumination, but I saw her all right, Mr. Mason. I looked at her. I made up my mind I’d take a good look at her, and I did.”

“You gave her just a glance, just as a maid might have looked up casually from her work?”

“Well, I–I took a good look.”

“A few moments ago,” Mason said, “you testified that you gave her a casual glance.”

“Well, with me, a casual glance is a good look.”

“I see. But it wasn’t good enough so you could positively identify her when you first saw that photograph?”

“A person hesitates to make a positive identification from a photograph.”

“That’s all,” Mason said.

“And now,” Hamilton Burger said, “I’ll call my main witness. Mr. Perry Mason take the stand, please.”

Mason unhesitatingly walked forward, held up his hand, took the oath and seated himself on the witness stand.

“This is, of course, a most unusual procedure,” Judge Lennox said.

“It’s a situation I tried to avoid,” Hamilton Burger pointed out. “I tried to avoid it by every means in my power.”

“To ask an attorney for the defendants to give testimony which would help convict the defendants is, of course, an anomalous situation,” Judge Lennox observed dubiously.

“That is the reason it is considered unethical for an attorney to act in a dual capacity,” Burger said. “I tried to spare Mr. Mason the embarrassment of being placed in such a position.”

“He is a necessary witness?” Judge Lennox asked.

“Absolutely, Your Honor. As the Court will realize from a contemplation of the evidence as it now stands in this case, it is necessary for me to prove the identity of the people who were participating in the conversation which took place in that room.”

“Of course, the conversation itself hasn’t been admitted yet.”

“That’s what I’m laying the foundation for, Your Honor.”

“Of course,” Judge Lennox pointed out, “the situation would be simplified if the defendants had some other attorney associated with Mr. Mason, who could assume charge of the defendants’ case at this point.”

“That would not be satisfactory either to the defendants or to me, Your Honor,” Mason said. “We’ve heard a lot of talk about ethics. Perhaps, if the Court please, I should quote from a California decision reported in 187 California 695, where the Court says:

“ ‘We are of the opinion that too much importance has been given, and too much irritation developed, over the fact that much of the evidence for the plaintiff was given by one of the attorneys in her behalf, as a witness in the case. So far as the court is concerned such testimony is to be received and considered, as that of any other witness, in view of the inherent quality of his testimony, his interest in the case, and his appearance on the witness stand.

“ ‘The propriety of a lawyer occupying the dual capacity of attorney and witness is purely one of legal ethics largely to be determined by the attorney’s own conscience. While it is not a practice to be encouraged, it may often occur that conditions exist in which an attorney cannot justly or fairly withhold from his client either his legal services or his testimony as a witness.’”

Judge Lennox seemed impressed by the citation. “Very well, Mr. Mason,” he said, “your position seems to be legally sound. In fact, from time to time you seem to find yourself in predicaments from which you extricate yourself by unusual methods which invariably turn out to be legally sound. The Court feels you are fully capable of looking after your own as well as your clients’ interests. We seem to be making judicial history as far as this court is concerned.”

“Mr. Mason,” Burger said, “I am going to ask you if, on the early morning of the third of this month, you were not present in room 721 at the Keymont Hotel?”

“I was.”

“Were you alone?”

“No.”

“A young woman was with you?”

“During a part of the time.”

“I believe she entered the room after you had arrived.”

“Yes, sir.”

“You went to the hotel?”

“Yes, sir.”

“Went to this room?”

“Yes, sir.”

“Entered the room?”

“Yes, sir.”

“And shortly afterwards this young woman arrived?”

“Yes, sir.”

“You went to that room at the request of Morris Alburg, one of the defendants in this case?”

“That question,” Mason said, “is improper. It, on its face, calls for a privileged communication between an attorney and client.”

“I think the Court will have to sustain that objection,” Judge Lennox said.

“I’m not asking him for the conversation. I’m simply asking him if he went there because of such a conversation,” Burger said.

“It amounts to the same thing,” Judge Lennox said. “You’re asking him, in effect, if his client told him to go to this room in the hotel. That, in my opinion, would be a privileged communication. After all, Mr. Burger, you must realize that there are certain peculiar aspects in this situation which are binding on you as well as on Counsel.”

“I understand, Your Honor.”

“Mr. Mason is occupying the dual role of a witness against his clients, and an attorney representing those clients. The Court will permit the examination of Mr. Mason as a witness, but the Court is certainly going to be very alert to safeguard the interests of the defendants.”

“Very well, Your Honor. Now, then, Mr. Mason, I am going to ask you if, while you were present in that room, the young woman who was present in that room did not state to you that Morris Alburg was at that time tracking down George Fayette for the purpose of killing him?”

“Now, to that question,” Mason said, “as attorney for the defendant Alburg, I interpose an objection that the question is incompetent, irrelevant and immaterial. As attorney for the defendant Dixie Dayton, I interpose an objection on the ground that if that woman was not Dixie Dayton the statement would be completely irrelevant and hearsay, and if the woman were Dixie Dayton it would be a privileged communication.”

“If the Court please, I had anticipated both of those objections,” Hamilton Burger said. “The evidence now shows that this woman was Dixie Dayton. Since the conversation related to a crime that had not as yet been committed, but which was about to be committed, the conversation was not a privileged communication. I am, of course, prepared to show the actual conversation. In other words, if Mr. Mason should deny that this statement was made I can impeach him irrefutably by producing the records which have been introduced in evidence, and playing that part of the conversation so that Mason will hear his own voice and the voice of the person who was in the room with him.”

“You can’t impeach your own witness,” Mason said.

“I can on a material point, but not on character,” Burger retorted.

“Suppose that person was not Dixie Dayton?” Judge Lennox asked the prosecutor.

“Minerva Hamlin has testified positively that it was Dixie Dayton.”

“That is the testimony of one witness.”

“But that’s the only testimony before the Court at this time,” Hamilton Burger pointed out.

Judge Lennox ran his hand up over his forehead, puckered his lips, swung halfway around in his swivel chair so as to avoid the eyes of Counsel, apparently trying thereby to improve his powers of concentration.

For several moments there was a tense silence in the courtroom.

Judge Lennox finally said, “Ask him the question. Put it right up to him. Was that woman Dixie Dayton, or wasn’t it?”

“Oh, no,” Hamilton Burger said, “that’s one question I have no intention of asking.”

“Why not?” Judge Lennox asked.

“Because if Mr. Mason should deny that it was Dixie Dayton he would be testifying as my witness. I am only going to ask Mr. Mason questions to which I already have the answers, and the correct answers, so that if Mr. Mason seeks to crucify me by betraying my case in his testimony I have it in my power to send him to prison for perjury.”

“I take it,” Judge Lennox said, smiling, “I opened the door for that, Mr. District Attorney. I take it you wish to convey that threat to Mr. Mason, and I gave you a good opportunity to do so.”

Hamilton Burger was grim. “The fact remains that I have stated my position.”

“You have indeed,” Judge Lennox said.

There was another period of silence; then Judge Lennox turned to Perry Mason. “I think I’d like to hear your position in this, Counselor.”

“As attorney for the defendant Morris Alburg,” Mason said, “I would point out that he isn’t bound by any statements made by Dixie Dayton.”

“As a co-defendant and a conspirator, I claim that he is,” Burger retorted.

Mason smiled. “Would you contend that any individual could walk into a hotel room and state that His Honor, for instance, was out committing a murder, and then seek to prove His Honor guilty of the murder by producing the corpse, and a recording of that conversation?”

“That’s different,” Burger snapped.

“Then would you mind stating exactly how it strikes you as being different?”

“But how about the defendant Dixie Dayton?” Judge Lennox asked.

Mason said, “Your Honor, Dixie Dayton, if she had been in that room and if she had said that Morris Alburg was out committing a murder, would still not be subject to any prosecution and the evidence could not be introduced in this manner unless she was a party to that murder.”

“But she was,” Hamilton Burger said.

“Prove it,” Mason snapped.

“That’s what I’m trying to do.”

“Then do it in an orderly manner. Get your cart and then get your horse, but don’t put the cart in front of the horse.”

“Now, just a minute,” Judge Lennox said, “there’s a peculiar situation here. I can see Mr. Mason’s point. It’s a carefully thought out point and it seems to be sound.”

“But, Your Honor,” Hamilton Burger protested, “can’t Your Honor realize the situation? Perry Mason was in that room with Dixie Dayton. Dixie Dayton stated in so many words, and I can assure Your Honor that that is a fact because we have those words recorded, that Morris Alburg was murdering or was going to murder George Fayette. Shortly after that George Fayette was found murdered, and there is ample evidence connecting Morris Alburg with the crime.”

“That’s all very nice,” Judge Lennox said, “but first you not only have to prove that it was the defendant Dixie Dayton who made the statement, but, as Mr. Mason points out, there must be some privity, some connection, some conspiracy.”

“Of course, as far as the element of conspiracy is concerned, we’re going to prove it by circumstantial evidence. We can’t introduce a tape recording of the two defendants sitting down and saying in effect, ‘Let’s go murder George Fayette.’ We have to prove that by declarations and conduct of the parties.”

“Of course,” Judge Lennox said, “you could simplify the situation by asking Mr. Mason if, at a certain date, Dixie Dayton, the defendant in this case, did not say to him so-and-so and such-and-such.”

“I don’t know what Mr. Mason’s answer would be to that question. He might deny it and then I would be in a position of trying to impeach my own witness. I don’t want to do that. I do want to keep the issues within such narrow limits of proof that Mr. Mason will either answer the questions in accordance with the facts as I understand them, or Mr. Mason will subject himself to a prosecution for perjury.”

“Yes,” Judge Lennox said, “I can see your point. I recognize the situation — I may say the dilemma — but the fact remains that it must be solved according to established rules of legal procedure. I think I am going to hold that this witness cannot be forced to answer that question over the objection of Counsel for both defendants. I feel that there must be some further proof of conspiracy before the conversation can be admitted. Are there any further questions of this witness?”

“Not at the moment,” Hamilton Burger said.

“Very well, Mr. Mason, you’re excused from the witness stand,” Judge Lennox said, “and may resume your position as Counsel for the defendants.”

“Subject to being recalled later after more foundation has been laid,” Hamilton Burger said.

“That is my understanding of the situation,” Judge Lennox ruled. “Go on with your case.”

“I want to call Frank Hoxie as my next witness.”

Frank Hoxie, the night clerk at the Keymont Hotel, was sworn, took the witness stand, and gave his name, address and occupation in a bored tone of voice.

“Are you acquainted with either of the defendants in this case?”

“Yes, sir.”

“With which one?”

“With both.”

“What were you doing on the second and third of the present month?”

“Working as a night clerk in the Keymont Hotel.”

“What time did you go on duty?”

“At nine o’clock in the evening.”

“What time did you go off duty?”

“At eight o’clock in the morning.”

“Now when did you first meet the defendant Morris Alburg?”

“A couple of days before...”

“Try and make it an exact date.”

“On the first of the month.”

“Where did you meet him?”

“I was at the hotel.”

“At the desk?”

“Yes, sir.”

“On duty as a night clerk?”

“Yes, sir.”

“And what conversation did you have with Mr. Alburg?”

“He came in and asked for a room. He said his sister-in-law had come to pay him an unexpected visit, and that he wanted to rent a room which she would occupy.”

“Under what name did he register?”

“Under the name of Mrs. Madison Kerby.”

“You assigned him a room?”

“Yes, sir.”

“What room?”

“Room 815.”

“That was the room in which the body of George Fayette was subsequently discovered?”

“Yes, sir.”

“Did you ever meet the person whom Morris Alburg said was his sister-in-law?”

“Yes, sir.”

“When did you meet her?”

“The defendant, Miss Dayton, came to the desk and said she was Mrs. Madison Kerby, and asked for the key to room 815. I gave her the key.”

“That was the defendant?”

“Dixie Dayton, one of the defendants, the one who stood up a minute ago.”

“When was that room given up?”

“You mean by the defendants?”

“Yes.”

“It was never given up. They kept the room until the date of the murder, when they were arrested.”

“Did you tell the police who had rented that room?”

“The police were after me pretty hard to find out who had rented it.”

“What did you tell them?”

“I told them I’d never seen the people before and didn’t know who they were.”

“Was that true or false?”

“It was true.”

“Perhaps,” Burger said, “you can tell us something of what happened on the evening of the second and the morning of the third.”

“It was on the morning of the third instant that Perry Mason came to the hotel.”

“At about what time in the morning?”

“Sometime around two-thirty in the morning, I think.”

“Was the defendant Dixie Dayton in the hotel at that time?”

“Yes, sir.”

“How do you know?”

“I had seen her come in and I hadn’t seen her leave.”

“When did she come in?”

“About half an hour before Mr. Mason did.”

“And the defendant Morris Alburg, was he in the hotel?”

“Yes, sir.”

“When did he come in?”

“About an hour before Mr. Mason arrived.”

“You’re certain of your identifications?”

“Very certain.”

Hamilton Burger turned to Mason and said, “Do you care to cross-examine this witness?”

“I think I do,” Mason said.

He pushed back his chair, arose, and faced the young man, whose blue, watery eyes made a valiant attempt to meet his, then shifted away, only to return, and again slither away.

Mason stood holding his eyes steadily on the witness.

Once more the witness made an attempt to meet Mason’s eyes, but, after less than a second, he averted his own eyes and shifted his position uneasily on the witness stand.

“How long have you been employed at the Keymont Hotel?”

“Three years.”

“Where did you work before that?”

“Various places.”

“Can you name them?”

“I sold goods on a commission.”

“What sort of goods?”

“Novelties.”

“Can you remember the name of the firm?”

“No. It was a fly-by-night outfit.”

“Did you ever serve in the Armed Forces?”

“No.”

“Have you ever held any other salaried position for as long as three years?”

“No.”

“You had two weeks’ vacation each year as a part of your compensation as night clerk?”

“No.”

“No vacations?”

“No vacations.”

“You worked there regularly, every night?”

“Well, there was once I was sent to Mexico City on business. It wasn’t really a vacation. It was a change.”

“What sort of business?”

“To collect a sum of money.”

“That was owed to the hotel?”

“Yes.”

“You collected the money?”

“I got a promissory note and was advised that would be satisfactory. The management wired me to that effect.”

“How long were you gone?”

“Almost a month. It was a difficult piece of work. There were a lot of angles.”

“For what was the money due?”

“I don’t know.”

“When was this?”

“About a year ago.”

“Exactly what date did you leave? Do you remember?”

“Certainly I remember. I left on a night plane on the seventeenth of — No, if you want to be technical it was on September eighteenth of last year.”

“Just how do you fix the date?”

“If you worked in the Keymont Hotel you wouldn’t have any trouble remembering when you had a free trip to Mexico City. The manager called me in and told me about this deal and said someone had to be on the ground who could handle the thing. He gave me money, told me to go up to my room, pack a suitcase and get to the airport.”

“What time was this?”

“Shortly before midnight, on the seventeenth.”

“The plane left at what time?”

“Right around one-thirty in the morning — the eighteenth.”

“A through plane?”

“No, I changed in El Paso, and if you want all the details, I sat next to a beautiful blonde who gave me the eye and then got sleepy when she found out I was leaving the plane at El Paso. From El Paso down I sat next to a woman who had been eating garlic, who had a kid that was airsick.”

The courtroom broke into laughter.

Mason didn’t even smile.

“There were some difficulties attendant upon your job in Mexico City?”

“Lots.”

“But it was a vacation?”

“It was a change.”

“Have you ever tried to leave the Keymont Hotel and secure employment with any other hotel?”

“Oh, Your Honor,” Hamilton Burger said. “There’s no reason why this witness should be ripped to pieces with all the details of his past life. Let Counsel confine his cross-examination to things that have been asked on direct examination.”

Judge Lennox said, “It seems to me that there is something unusual about the background here, and I am not going to limit Counsel’s cross-examination. The objection is overruled.”

“Have you?” Mason asked.

The witness tried to meet Mason’s eyes and failed. “No,” he said in a low voice.

“Have you,” Mason asked, “ever been convicted of a felony?”

The witness started to get up from the witness chair, then stopped and settled back down.

“Oh, Your Honor,” Hamilton Burger said, “this is so plainly a shot in the dark. This is an attempt to smear the reputation of a witness whose only fault has been that he has testified against Mr. Mason’s clients.”

“I think, myself, the question, under the circumstances, is rather brutal,” Judge Lennox said. “However, it is a perfectly permissible question. It’s one of the grounds of impeaching a witness, and obviously the question has been met with no forthright denial. Therefore I will have to overrule the objection, somewhat against my wishes.”

“Have you,” Mason asked, “ever been convicted of a felony?”

“Yes.”

“What was it? Where did you serve time?”

“I served time in San Quentin for armed robbery. Now you know the whole thing. Go ahead and ruin me. Rip me up the back if you want to.”

Mason studied the young man for a moment, then moved his chair around the end of the counsel table, sat down, and in a tone of genuine interest said, “I don’t think I want to, Mr. Hoxie. I think perhaps we may use this as a point of beginning rather than a point of ending. Did your employers know you had been convicted of a felony?”

“Why do you suppose I was holding down a second-rate job in a third-rate hotel?” Hoxie demanded angrily.

“You’re positive of your identifications of the witnesses?” Mason asked.

“Completely positive. I have a knack of never forgetting a face. Once I have seen a person and placed him I never forget him — which is why my services presumably are of some value to the hotel.”

“When were you convicted, Frank?”

“Ten years ago.”

“And you served how long?”

“Five years.”

“And then what?”

“Then I had four or five different jobs, and something was always happening. My record would come up and I’d be thrown out.”

“Then what?”

“Then I was picked up on suspicion. Not because of anything I had done but purely because of my record. I was put in a police show-up box and I knew it meant the loss of another job. I was pretty sore about the whole thing.”

“Go on,” Mason said.

“A police sergeant came to me after one of these show-ups. He sympathized with me and told me he knew how I felt. He said that he had a friend who managed the Keymont Hotel. He said it was a place that had been in trouble with the police and the manager would therefore know just how I felt, and the trouble I was having. This police officer knew I had a great talent for remembering people and he knew the Keymont Hotel was looking for a night clerk because he’d been instrumental in sending the one who had just been employed there to prison.

“He told me he’d had to threaten to close the hotel for good, and this new manager had promised to do his best to keep the place within the law. The police officer advised me to go to this new manager, to tell him all about myself. He said that the only thing for me to do was to get a job where the employer knew all about my past history so I’d have a real chance to make good. He suggested that I go there and tell them frankly my entire history, and he warned me that if I didn’t want to try to go straight I wasn’t to apply for the job because the place had a bad reputation and the Vice Squad was watching it.”

“You did that?”

“Yes. It was the best advice I ever had.”

“And you’re well-treated in this job?”

“My hours are twice as long as they should be. I’m paid about half of what I should be getting. I’m treated courteously. I’m told to keep my mouth shut. It’s not the best hotel in the city. It’s a third-rate hotel and caters to third-rate business with all that it means. I keep my eyes open, my ears open, my mouth shut, and my nose clean, and I’m still there. Now, I take it that answers your question, Mr. Mason, and you’ve had your fun. Tomorrow regular residents of the hotel will know that the night clerk is an ex-convict.”

“For your information,” Mason told him, “I think that this is the only time in my courtroom experience I have ever asked a witness if he had ever been convicted of a felony. Personally I believe that when a man has paid his debt to society, the debt should be marked off the books. However...”

“Oh, Your Honor, I object to all this self-justification on the part of Counsel,” Hamilton Burger said. “He’s tipped over the apple cart and ruined this young man’s career, and now he’s trying to present an alibi in the unctuous manner...”

Judge Lennox pounded his gavel. “The district attorney,” he said, “will refrain from offensive personalities. Mr. Mason is within his legal rights and the Court thinks it sees the general purpose in the back of Mr. Mason’s interrogation. If you have any specific objections to make, make them when Counsel has finished asking his questions... Proceed, Mr. Mason.”

Mason said, “Thank you, Your Honor.”

He turned to the witness and said, “This police sergeant who befriended you has kept an eye on you?”

“Oh, yes. He’s the head of the Vice Squad.”

“He checks up on you?”

“Yes.”

“Frequently?”

“Sure. They keep an eye on the hotel. Things happen there. We can’t help it, but the management doesn’t take part in any of that stuff. We don’t ask to see the marriage license when a couple registers, but neither do the high-class hotels. We try to keep the bellboys from furnishing call girls, and we don’t rent rooms to known dope peddlers.

“That’s where my knowledge of faces comes in handy. The hotel was in bad and the D.A. was threatening to close the place up. The owners had to clean up or lose their investment.”

And the witness made a little bow to Hamilton Burger, who tried to look virtuously disdainful.

“And because of that the management is anxious to cater to the district attorney?” Mason asked.

“Objected to as calling for a conclusion of the witness,” Burger said.

“Sustained.”

“How about you yourself?” Mason asked. “Do you wish to cater to the district attorney?”

“I don’t want him as an enemy. Any time the authorities turn thumbs down on me, I’m out. But that hasn’t made me tell any lies. I’m telling exactly what happened.”

“Yet you were glad of a chance to be of assistance to the district attorney?”

“I’m sorry I was ever called as a witness.”

“But you welcomed a chance to be of service to the district attorney?”

“I felt it might come in handy sometime, if you want to put it that way.”

Mason turned to Hamilton Burger and said, “I think it is only fair at this time, Mr. District Attorney, to acquaint the Court with what I understand is the general background of your case.”

“I’ll handle my case in my own way,” Hamilton Burger said.

“However, as I understand it generally,” Mason said to the judge, “the police have in their possession a revolver which had been pawned in Seattle. The pawnbroker is here in court and he will presently identify the defendant Dixie Dayton as the person who pawned that weapon. And that weapon was, according to the evidence of the ballistics department, as will be presently brought out by Mr. Mott, the weapon which was used in the murder of one Robert Claremont, a murder which took place something over a year ago here in this city, and, as I understand it, it is the contention of the prosecution that it was because of an attempt to cover up that murder that Morris Alburg and Dixie Dayton planned the murder of George Fayette.”

Hamilton Burger’s face showed complete, utter surprise.

“Is that generally the background of the prosecution’s case?” Mason asked him.

“We’ll put on our own case,” Hamilton Burger said.

Judge Lennox said, “You may put on your case, Mr. Burger, but the Court is entitled to know generally whether this outline of the background of the case as given by the defendants’ Counsel is correct.”

“It is substantially correct, Your Honor,” Burger said sullenly. “I had assumed Counsel for the defendants would try to keep out this evidence. His statement comes as a surprise.”

Judge Lennox frowned. “I can now appreciate the reason for the comments of the District Attorney concerning testimony regarding other crimes which might furnish in some way a motive for the crime charged in this case.”

Mason sat in the mahogany counsel chair, his long legs crossed in front of him, his eyes thoughtful, speculative, regarding the young man on the witness stand.

“Now on the night in question you were acting both as night clerk and switchboard operator?”

“Yes.”

“And there was a call from room 721 — a woman saying, ‘Call the police’?”

“Yes.”

“Yet you did nothing about that?”

“Certainly I did. The woman hung up. I immediately called back on the phone, and asked what was the trouble. She laughed at me and said to be my age, that it was a gag.”

“You did nothing else?”

“Certainly not. I assumed her boy friend had become a little too wolfish and so she decided she’d throw a scare into him. But she obviously wasn’t worried.”

“Did it occur to you that another woman had answered your ring?”

“Not at the time. In the Keymont you don’t call the police for anything short of a riot. You handle trouble yourself.”

“Yet you did call the police later?”

“When a revolver shot was reported, yes. You can’t overlook a revolver shot.”

Once more Mason regarded the witness with thoughtful speculation.

“Your employers know about your criminal record, Mr. Hoxie?”

“I’ve told you they did.”

“And it’s brought up to you once in a while?”

“What do you mean by that?”

“Whenever you are called upon to do something that might be perhaps a little bit irregular?”

“You have no right to examine me about anything except the facts in this case,” the witness retorted.

“Quite right,” Mason said, and, without turning his head, said over his shoulder, “Is Lieutenant Tragg in court?”

“Here,” Lieutenant Tragg said.

Mason said, “Lieutenant, you have a photograph of Robert Claremont, the rookie cop who was murdered in this city something over a year ago. Would you mind stepping forward and showing that photograph to the witness?”

“What does all this have to do with the present case?” Hamilton Burger asked irritably.

“It may have a great deal to do with it,” Mason said, without even turning toward the source of the interruption, but keeping his eyes fixed on the witness. “I take it you gentlemen would really like to solve the Claremont murder?”

“I would,” Lieutenant Tragg said, striding toward the witness stand.

Lieutenant Tragg extended a photograph to Perry Mason.

“Show it to the witness,” Mason said.

Lieutenant Tragg moved up to stand by the witness, holding out the photograph.

The witness looked at the photograph, started to shake his head, then extended his hand, took the photograph, looked at it and held it for a moment.

It was quite obvious that his hand was shaking.

“You say you never forget a face you have once seen,” Mason said, “and therefore you are a valuable asset to the Keymont Hotel. Have you ever seen the face of the man in the photograph?”

“If the Court please,” Hamilton Burger said, “this isn’t proper cross-examination. If Counsel wants to make this man his own witness he...”

“He certainly has a right to test the memory of the witness,” Judge Lennox said. “Any witness who makes the unusual statement that he never forgets a face he has once seen is testifying that he has a memory which is far better than average. Therefore, under the circumstances, Counsel is entitled to test that memory. The witness will answer the question.”

“I can’t...”

“Careful,” Mason cautioned sternly. “Remember you’re under oath.”

The witness once more held up the photograph. This time the trembling of his hand was so obvious that he lowered the hand hastily to his lap.

“Well?” Mason asked. “What’s the answer? Yes or no?”

“Yes,” Hoxie said, in an all but inaudible voice.

“When did you see him?”

“Oh, Your Honor,” Hamilton Burger said, “that is asking too much...”

Lieutenant Tragg whirled to glare angrily at the district attorney.

“I’ll withdraw the objection,” Hamilton Burger said.

“When?” Mason asked.

“If that’s really Claremont’s picture, I guess it was the night I left for Mexico.”

“What time during the night?”

“Early in the evening. There was a little trouble.”

“What sort of trouble?”

“He went up to see a tenant. There was a complaint about a quarrel. I phoned up to the tenant in the room. The noise quieted down.”

“Then what happened?”

“Nothing.”

“Were there telephone calls from that room?”

“I can’t remember.”

“You have said you never forget a face. Who was the occupant of that room?”

“A regular tenant.”

“Who?”

“George Fayette, the man who was murdered on the third of this month.”

Perry Mason got up, pushed back his chair, and said, “Thank you, Mr. Hoxie,” then to the bewildered court, “Those are all the questions I have.”

“You mean you’re quitting now?” Judge Lennox demanded incredulously.

“Now,” Mason said, and then added with a smile, “and I think if Court will take a thirty-minute adjournment the examination can best be completed by Lieutenant Tragg and in private.”

Judge Lennox hesitated, frowned, then reached for his gavel. “I think I get your point, Mr. Mason. Court will take a thirty-minute recess. The defendants are remanded to custody.”

And Judge Lennox, with a significant glance at Lieutenant Tragg, promptly left the courtroom for his chambers.