The Case of the Reluctant Model

Chapter Fourteen

Deputy District Attorney Thomas Albert Dexter got to his feet and said, “May it please the Court, this is the time fixed for the preliminary hearing in the case of the People of the State of California versus Maxine Lindsay. The People are ready.”

“Ready for the defendant,” Mason said.

“Very well,” Judge Crowley Madison said, with a curious and almost sympathetic glance at Maxine, “call your witnesses, Counselor.”

“Call Lieutenant Tragg,” Dexter said.

Lt. Tragg took the stand. He had, he explained, been called by Miss Della Street, or, that is, by someone who said she was Miss Della Street, on the morning of the 14th. He had gone to an apartment, Number 338-B, rented by Maxine Lindsay, the defendant in this case, and had there found Della Street and a body. The body had subsequently been identified as that of Collin Max Durant, an art dealer. The body was lying partially in the shower stall in the bathroom.

“You have photographs?” Dexter asked.

Tragg produced a sheaf of photographs. They were introduced in evidence, one at a time.

Tragg also produced a diagram he had made of the interior of the apartment, and that was introduced in evidence.

“And what was in the pockets of the deceased at the time you found the body, Lieutenant?”

“Some keys, including a key which opened the door of the defendant’s apartment; a handkerchief, a pen knife, a package of cigarettes, a lighter, two fountain pens, a notebook, one hundred one-hundred-dollar bills and about twenty-five dollars in smaller currency and change, making a total of ten thousand and twenty-five dollars.”

“Miss Street made a statement to you at that time?”

“Yes.”

“What did she say?”

Judge Madison said, “This is not the best evidence. It’s hearsay.”

“I know,” Dexter said, “but since Miss Street is the secretary of Mr. Perry Mason, the attorney for the defendant, I thought it might be better to bring the matter to the Court’s attention in this way, particularly if there is no objection from the defense.”

“Is it material?” Judge Madison asked.

“It’s quite material.”

“Is it important?”

“We consider it so.”

“In what way?”

“It tends to contradict the defendant’s subsequent declarations.”

“Very well,” Judge Madison said, “if there is no objection—”

“There is an objection,” Mason said.

“Well,” Judge Madison said irritably, “that would have disposed of the matter without all this running around, if you had interposed the objection at the time the question was asked.”

Mason smiled. “I am objecting at this time.”

“The objection is well taken. It’s sustained,” Judge Madison said, and then added somewhat brusquely, “I recognize your tactics, Counselor. You wanted the district attorney’s office to explain why it considered the conversation important. All right, you have that information now, you’ve made your objection and it’s been sustained.”

“I’ll call Miss Della Street to the stand at this time in order to prove the conversation,” Dexter said, “and withdraw Lieutenant Tragg so that he can finish his testimony later.”

“Well, that’s somewhat irregular,” Judge Madison said, “but I guess it’s all right. However, if Mr. Mason wants to cross-examine the lieutenant on the testimony he’s already given before he leaves the stand, I’ll give him that privilege.”

“I’m quite willing to cross-examine him later,” Mason said.

“Very well,” Judge Madison said. “Miss Street to the stand.”

Della Street stepped forward, held up her right hand, was sworn and took her position on the witness stand.

“You are acquainted with the defendant, Maxine Lindsay?”

“Yes.”

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

“I did.”

“Did you see her at that time?”

“I did.”

“Did you have a conversation with her?”

“I did.”

“What time was this?”

“It was about nine o’clock in the evening.”

“Who was present?”

“Mr. Mason and myself, in addition to Maxine Lindsay.”

“What did she say? What was that conversation?”

“Just a moment,” Mason said. “May I ask a question on voir dire?”

“Certainly,” Judge Madison said.

“At the time of that conversation,” Mason said, “what was your occupation, Miss Street?”

“I was your secretary.”

“And what is my occupation?”

“An attorney at law.”

Mason smiled at Judge Madison and said, “Now, Your Honor, I wish to object to the question on the ground that it calls for a privileged communication, a confidential communication made to an attorney.”

“Just a moment,” Dexter said angrily. “I have one more question. Miss Street, at the time of this conversation, was Maxine Lindsay a client of Perry Mason?”

Della Street hesitated. “I don’t know,” she said.

“Let me put it this way,” Dexter said. “Had she paid any retainer?”

“She had not paid a retainer,” Della Street said.

Dexter smiled triumphantly. “There you are, Your Honor. It was not an attorney-and-client relationship.”

“I’d like to ask a question,” Mason said. “Is Miss Lindsay my client now, Miss Street?”

“That’s self-evident,” Judge Madison interrupted. “I don’t see what that has to do with the situation. You’re appearing now as attorney of record for her.”

“Then,” Mason said, “since it is thoroughly understood that she is now my client and that I am appearing as attorney of record for her, I will ask Miss Street this question. Has she ever paid me a retainer?”

“No,” Della Street said, “she hasn’t.”

Judge Madison smiled. “Pardon me, Counselor. I didn’t appreciate the drift of your cross-examination.”

Dexter said, “I would like to ask one more question, Miss Street. Did Mr. Mason tell you that he was going to represent Maxine Lindsay?”

“Yes.”

“And when did he make that statement?”

“Sometime on the fourteenth.”

“Then he hadn’t told you she was his client on the thirteenth?”

“He hadn’t told me at that time, no.”

Judge Madison ran his hand over his head. “I think we had better have a clearer understanding of the facts in this case,” he said, “before the Court rules on the objection.”

Mason said, “Permit me to ask one more question. Miss Street, was there any relationship of friendship, that is, personal friendship, between Miss Lindsay and myself, that you know of?”

“None.”

“Was there anything in this conversation to indicate that she was consulting me as a friend, rather than an attorney?”

“No. She was consulting you because she had been in your office earlier.”

“She made that statement?”

“That was the effect of the conversation, yes.”

Mason said, “I renew the objection, if the Court please.”

“I’m going to sustain the objection for the moment,” Judge Madison said. “Let’s let the evidence develop in the case. If it turns out there’s enough evidence to bind the defendant over without ruling on this objection, then the prosecution can withdraw these questions because it won’t be necessary to have them asked and answered.

“The Court feels there’s a close point here. The Court feels that we should have some authorities on the matter, but the Court is inclined to sustain the objection.”

“Very well,” Dexter said, with poor grace. “I’ll look the matter up. I had anticipated that there would be no objection to Tragg’s stating what Della Street told him. I think it’s part of the res gestae.”

“What she told him about discovering the body might be part of the res gestae,” Judge Madison said, “but what she told him as part of the conversation about what the defendant had stated the day before, or rather, the evening before, is not a part of the res gestae.”

“Very well, recall Lieutenant Tragg,” Dexter said. Della Street returned to her seat.

“Lieutenant, on the afternoon of the fourteenth, did you have occasion to see Maxine Lindsay, the defendant in this case?”

“I did.”

“Where?”

“At Redding, California.”

“And who was with her at that time, if anyone?”

“Mr. Perry Mason.”

“You made some statement to her at that time in the presence of Mr. Perry Mason?”

“Yes, sir. I told her that I wanted to question her concerning the murder of Collin Max Durant.”

“And did she make any statement to you at that time?”

“Not at that time. Mr. Perry Mason told her not to make any statement.”

“You returned to Los Angeles?”

“Yes, sir.”

“Who returned with you?”

“Mr. Perry Mason and Maxine Lindsay, the defendant.”

“Subsequently Maxine Lindsay was interrogated without Perry Mason being present?”

“Yes, sir.”

“Did she make any statement?”

“At first she refused to make any statement. Then I explained to her that we didn’t want to work any injustice but that there was evidence pointing to her, that if she would explain just what had happened we would investigate and if the evidence bore out her story she would be released. I then went on to tell her that the evidence of her flight was evidence which could be received as evidence of guilt in this state, and she told me that she wasn’t fleeing. She said that she had decided to visit her sister, a Mrs. Homer H. Stigler, who resides in Eugene, Oregon. I then asked her how long she had been on the road and learned that she had left Los Angeles at approximately nine-forty; that she was in Bakersfield a little after midnight; that she had very limited funds and that she looked around for a while getting the cheapest motel she could find.”

“You learned all this from the defendant?”

“Yes, sir.”

“She had been advised of her constitutional rights?”

“She had.”

“Then what else did she tell you?”

“That she had sent a wire to her sister asking for funds and that she had received those funds transferred by telegraph to Redding.”

“Incidentally, Lieutenant, did you talk with the sister?”

“Subsequently I talked with the sister.”

“And did the sister verify—”

“Just a minute,” Mason interposed. “The question as now being asked is leading. Furthermore it is incompetent, irrelevant and hearsay. The statement by the sister cannot in any way be binding on this defendant, and—”

“Withdraw the question,” Dexter said wearily. “I was trying to save time.”

“And I was trying to preserve the constitutional rights of the defendant,” Mason said.

“Now then, subsequently did the defendant make any other statements to you?”

“Yes, she did. I suggested to her that she had arranged with Perry Mason to meet her along the road and she denied this. I then questioned her concerning the time at which she had met Perry Mason and she advised me that she had last seen Perry Mason at about nine-thirty on the evening of the thirteenth; that she had then decided to visit her sister; that she had given Miss Street the key to her apartment. I asked her how well she knew Collin Durant, the dead man, and she said at first that she barely knew him. Later on she changed her story and admitted that she had been friendly with him at one time, and that since she had been in Los Angeles she had seen him from time to time.”

“Did you ask her anything about having a child?” Dexter asked.

“Just a moment,” Mason said, “that question is objected to as leading and suggestive. It is completely incompetent, irrelevant and immaterial.

“I think it is incompetent,” Judge Madison said, “at least in its present form.”

“Well, I’ll put it this way,” Dexter said bluntly. “Did you ask her anything about having a child by the dead man, Collin Durant?”

“Not at that time, no.”

“Did you, subsequently?”

“Yes.”

“What did she say?”

“I object to this whole line of questioning as being leading and suggestive.”

“It is leading,” Judge Madison said, “but the prosecution is trying to get some particular conversation here in evidence. I’m going to overrule the objection. I think the question is now pertinent because it would go to a question of motivation.”

“What did she say?” Dexter asked.

“She denied it.”

“Denied ever having a child, or denied that Collin Durant was the father of the child?”

“Now, just a minute,” Mason said. “Before you answer that question I want to object, if the Court please, and I assign the asking of this question in this manner as misconduct. The Court has already ruled that the question of whether this defendant had had a child has nothing to do with the issues in this case unless the child was the offspring of Collin Durant. By approaching the subject in this manner and asking the question in this way, the prosecution is trying to put the defendant in a position where public sympathy will be alienated, where the newspapers will have a story, and—”

Judge Madison said. “There’s no need to go on, Mr. Mason. The Court has already ruled on this. The Court admonishes the prosecution that the question is improper. The Court has opened the door only so far as it goes to a question whether the witness was questioned about whether she had a child by Collin Durant, and her answer to that question.”

“She denied it,” Tragg said.

“Cross-examine,” Dexter snapped.

Mason said, “Now then, Lieutenant Tragg, did you ask her if she had had a child and the father of that child was Thomas Albert Dexter, the district attorney?”

Dexter jumped to his feet. “Your Honor, this is... this is rank misconduct! This is a conduct which is contemptuous on its face!”

“Why is it?” Mason asked. “You asked the lieutenant a leading question, if he had had a conversation in which he had accused the defendant of having a child by Collin Durant. Apparently there was no foundation for any such assumption, any more than there is any foundation for the assumption that you are the father of a child by the defendant. I just wanted to drive home my point. And,” Mason added with a smile, “in case the daily press should regard your quote bombshell unquote as the highlight of the case, I wanted my question to illustrate my position and be a higher highlight.”

Judge Madison smiled and said, “Proceed with some other question, Mr. Mason. I think you have made your point.”

“You ascertained that the defendant did have a sister, Mrs. Homer Hardin Stigler, living at Eugene, Oregon?”

“Yes, sir.”

“And that she had received a telegram from the defendant and had forwarded her twenty-five dollars in response to that message?”

“Yes, sir.”

“No further questions,” Mason said.

“One matter I overlooked,” Dexter said. “Did the defendant tell you how she had got in touch with Mason on the evening of the thirteenth?”

“She said she had called him from a bus depot at about seven-fifteen. That she had called the office of Paul Drake and asked for Mr. Mason and asked if they could get in touch with Mr. Mason. She said that she waited there until about eight-fifteen and that Mr. Mason called in at that time and arranged to meet her in forty-five minutes in front of the apartment building where Miss Della Street lives, and that was the reason that she met Mason and Miss Street there and gave Miss Street her key at that time.”

“You asked her other questions?”

“Yes, we asked her other questions which she refused to answer. We told her that we were making no accusations as yet, that the case was in the stage of investigation and that our questions were asked simply so she could help clear up certain matters.”

“You wish to cross-examine further?” Dexter asked.

“No further questions,” Mason said.

“I will call Dr. Phillip C. Foley,” Dexter said.

Foley came forward, was sworn, and identified himself as an autopsy surgeon in the office of the county coroner.

“I will stipulate Dr. Foley’s professional qualifications, subject to the right of cross-examination,” Mason said. “I wish it understood, however, that I am not stipulating to his qualifications as such, only to a prima facie showing, and I have a right to cross-examine as to those qualifications.”

“Very well,” Judge Madison said. “Go ahead with your questions, Mr. Prosecutor.”

“I am referring to the body identified as that of Collin Max Durant, Number three, six, seven, four W in the records of the coroner’s office.”

“Yes, sir.”

“Who performed the autopsy on that body?”

“I did.”

“When was it performed?”

“At approximately two o’clock on the afternoon of the fourteenth.”

“When did you first see the body?”

“At ten o’clock in the morning. Actually it was just a few minutes past ten. I would say three or four minutes past ten. It wasn’t as much as five minutes past ten.”

“In your opinion, Doctor, how long had the body been dead at the time you examined it? Or, I’ll put it another way: When had death occurred?”

“I would say death took place between seven-forty and eight-twenty on the night of the thirteenth.”

“Did you determine the cause of death?”

“Yes, sir. There were three bullet wounds. One of them might eventually have proven fatal. The other two would have proven almost instantly fatal. The bullet wound which I believe was the first wound inflicted was one which penetrated the spine at the fourth cervical. The other bullet, which I believe would have proven almost instantly fatal, penetrated the ascending aorta. The other bullet entered the lung. All three shots were fired from the back.”

“Did you recover any of the bullets?”

“I recovered all three of the bullets.”

“And what was done with those bullets?”

“I turned them over to the ballistics department for possible identification, after first labeling them so I could identify them.”

“Cross-examine.”

“The phenomenon of rigor mortis is a variable, is it not?” Mason asked.

“It is.”

“There have been instances of troops slain in the heat of combat under circumstances of excitement and where the temperature has been high and rigor mortis has developed almost instantly?”

“I believe that is right. I have never seen that myself but I believe it is an accepted medical fact.”

“And there are circumstances under which rigor mortis is very slow in its onset?”

“Yes, sir.”

“It begins with the jaws and neck muscles and gradually works down through the body?”

“Yes, sir.”

“And when it leaves, does it leave in the same way?”

“Yes, sir.”

“Now, post-mortem lividity is also a variable, is it not?”

“Well, yes.”

“That is a phenomenon in which the forces of gravitation and those of blood deterioration or coagulation combine?”

“In a way, yes. I believe you might call it that.”

“Blood settles into the lower vessels, except where those vessels are shut off due to pressure?”

“Yes, sir.”

“The pattern is quite uniform. It follows a general pattern?”

“Yes, sir.”

“And once it has developed it does not change unless the body is moved?”

“That is right.”

“So that an autopsy expert could only tell very, very generally what time death occurred from post-mortem lividity?”

“I would say so, yes.”

“And rigor mortis is also such a variable that you can only tell very generally when death took place?”

“Yes.”

“Now in regard to body temperature, Doctor, what can you say about that?”

“Well, the body loses temperature at a uniform rate.”

“Depending, however, on the temperature of the room?”

“Yes, sir.”

“The temperature of the body at the time of death?”

“We always assume a normal temperature at the time of death in case of this sort.”

“But you don’t know that it exists? That’s only an assumption?”

“Well, yes.”

“And the rate of loss of temperature depends on the clothing?”

“Yes, to a very large extent.”

“You didn’t know the temperature of the room in which the body remained until removed by the police?”

“It was seventy-two degrees Fahrenheit.”

“You went to the room?”

“Yes,”

“And did what?”

“I used the newest method of ascertaining the time of death by the Lushbaugh method. By using this method incorporating an electrical direct reading thermometer with a thermistor in a plasticized probe, I was able to determine the precise rate at which body temperature was decreasing.

“This method enables one to ascertain the time of death to within thirty to forty minutes.

“I used this so-called ‘death thermometer’ method in this case. The result agreed with all the other physical evidence I was able to evaluate and pinpointed the time of death.”

“You fix the earliest time of death as seven-forty?”

“Using this method, yes.”

“And the latest time as eight-twenty?”

“Yes.”

“Could death have occurred at seven-thirty-nine?”

“That’s quibbling.”

“It could have been seven-thirty-nine?”

“Perhaps.”

“It could have been seven-thirty-eight?”

“Well, I’ll put it this way, Mr. Mason. I fixed those time limits as the extreme limits under this test. The probable time of death was midway in that period, again under this test.”

“That’s all,” Mason said.

“Call Matilda Pender,” Dexter said.

Matilda Pender, a rather attractive woman in her early thirties, was sworn, testified that she was a ticket seller at the bus depot, that she had seen Maxine Lindsay on the night of the thirteenth, that she had noticed her particularly because the girl seemed distraught and excited.

“During what time intervals did you observe her?” Dexter asked.

“Approximately between eight o’clock and eight-twenty.”

“What was she doing?”

“Standing by a telephone booth.”

“Now, did you see her before that?”

“No, sir.”

“Cross-examine,” Dexter said.

“She could have been there prior to eight o’clock without your seeing her?” Mason asked.

“I noticed her because she was nervous.”

“Exactly,” Mason said. “If she hadn’t been nervous you wouldn’t have noticed her. In other words, there was nothing other than nervousness to differentiate her from the hundreds of other persons who pass through that bus depot in the course of a day.”

“Well, I noticed her because she was nervous.”

“I am asking you,” Mason said, “if that was the reason you noticed her.”

“I have told you. Yes.”

“And if she hadn’t been nervous, you wouldn’t have noticed her.”

“No.”

“Then if she had been there prior to eight o’clock but hadn’t been nervous, you wouldn’t have noticed her.”

“I suppose not, no.”

“She could have been there from six o’clock and if she hadn’t been nervous you wouldn’t have noticed her.”

“If she’d been there that long I would have noticed her.”

“From six to eight-twenty?”

“Yes.”

“Even as it was, and she was nervous, you didn’t notice her immediately, did you?”

“I suppose not.”

“So you now feel she must have been there some time before you noticed her even with all the nervousness that you have testified to.”

“I don’t think she could have been there very long before eight o’clock.”

“But she must have been there before eight o’clock,” Mason said, “because when you saw her, you saw her at the phone booth and she was nervous. You didn’t see her when she entered.”

“No.”

“Then she had entered before you saw her?”

“Yes.”

“And you don’t know how long before?”

“No.”

“Then if something happened to make her nervous at eight o’clock, that would account for your noticing her.”

“I noticed her because she hung around the telephone booth and acted in a nervous manner.”

“Exactly,” Mason said. “So what you are actually testifying to is that at eight o’clock this woman became sufficiently nervous for you to notice her.”

“Yes.”

“Now, that nervousness, of course, could have been due to some telephone call that she put through, some information she received on the telephone?”

“It could have been due to anything. I’m not trying to state what caused the woman to be nervous, but only that she was nervous.”

“And because of that nervousness you noticed her?”

“Yes.”

“That’s all,” Mason said.

“Call Alexander Redfield,” Dexter said.

Mason said, “I will stipulate as to Mr. Redfield that he has all of the qualifications of an expert in the field of ballistics and firearms identification, subject to my right to cross-examine. I am only making this stipulation to save time on the direct examination. I reserve the right to cross-examine as to his qualifications if I so desire.”

“Very well. We will accept that stipulation.”

Dexter turned to the witness. “Mr. Redfield, did you receive three bullets from Dr. Phillip C. Foley?”

“I did.”

“And did you place those bullets where you could be certain they were not contaminated in any way?”

“I did.”

“And later on, did you compare them with a weapon for the purpose of seeing whether they had been fired from that weapon?”

“I did.”

“Can you tell us something generally about firearms identification and bullet matching?”

“Each barrel has its own peculiarities,” Redfield said. “There are, of course, class characteristics, such as the number of lands, the pitch, the direction of the pitch, the rotation, the width and spacing. Those are what we call class characteristics. For instance, the Colt Firearms Company manufactures barrels having certain distinctive class characteristics. The Smith and Wesson barrels have entirely different class characteristics.

“In addition to these class characteristics there are also what we refer to as individual characteristics. Those individual characteristics are the result of those minute imperfections in a barrel which cause striations on a bullet which is fired through that barrel.

“Given a gun and a fatal bullet which is not too badly disfigured by impact, we are nearly always able to fire a test bullet through the gun and match it with the fatal bullet so that we can tell positively whether the fatal bullet was fired from the gun in question.”

“And you tested these bullets, which were given you, with a firearm?”

“Yes, sir, with a Hi-Standard nine-shot twenty-two revolver of the brand known as Sentinel. That is a particular brand made by the High Standard Manufacturing Corporation. The number of this particular gun was one, one, one, one, eight, eight, four. It had a nine-shot cylinder, a two and three-eighths inch barrel.”

“And what was the caliber of that gun?”

“Twenty-two.”

“What else can you tell us about that weapon?”

“It was a nine-shot revolver. Three of the chambers had been fired. There were three empty shells in the cylinder and six loaded cartridges. The gun was registered in the name of the defendant.”

“And what can you tell us about the three twenty-two caliber bullets which were handed to you by Dr. Foley?”

“They had all been fired from this gun.”

“You may cross-examine,” Dexter said.

“No questions,” Mason said smiling.

Judge Madison said, “It now having reached the noon hour, gentlemen, Court will adjourn until one-thirty this afternoon. The defendant is remanded to custody.”