The Case of the Reluctant Model

Chapter Sixteen

Promptly at one-thirty, as Judge Madison took the bench, Thomas Dexter sprang his bombshell. “I would like to recall Matilda Pender,” he said.

The young woman returned to the stand.

“There is one more thing I want to ask you about,” Dexter said. “You saw the defendant and she seemed nervous. She was near the telephone in the telephone booth, apparently waiting for—”

“Never mind the apparently,” Mason said, “let’s have the facts. We’ll let the conclusions speak for themselves.”

“All right,” Dexter said, “I have here a diagram of the bus terminal, showing the telephone booths, the lockers, the ticket window, the location of the rest rooms and the waiting room. Also showing the doors for loading and unloading passengers. Now, will you please point out the spot on this diagram where you saw the defendant? First, however, let me ask you to orient yourself on the diagram and tell me whether or not that correctly delineates the floor plan of the premises.”

“Yes, sir. It does.”

“All right,” Dexter said, “now let’s get the defendant located as of the night of the thirteenth.”

The witness placed a pencil on the sketch.

“At about this point?” Dexter asked.

“Yes.”

“You saw her here for how long?”

“She was either there in that spot or near that spot for at least fifteen minutes that I’m certain of.”

“Then what happened?”

“Then she was in the phone booth.”

“I notice that a rack of lockers is right near the phone booths.”

“Yes, they’re just behind them.”

“I’m going to ask you if you know where Locker twenty-three W is?”

“Yes, sir.”

“Where?”

“It is the third one from the top in this diagram.”

“Do you know a man by the name of Fulton — Frankline Fulton?”

“Yes, sir.”

“Did you see him either on the fourteenth or fifteenth?”

“It was the fifteenth.”

“And where did you see him, and under what circumstances?”

“I monitor the lockers at the terminal,” she said. “Whenever one of them is unopened for twenty-four hours we check the contents, and in accordance with a notice given the public to that effect, the contents are removed to the office and the locker is placed back in operation.”

“And how is that done?”

“Every time a coin is inserted in the locker so as to activate it,” the witness said, “it registers on the master counter at the top of the locker. Every night before I go off work, I go through the lockers and make a list of the numbers that are shown on the master register at the top. I then compare each of these numbers with the numbers which were on the master register during the preceding twenty-four hours. Whenever I find one that is the same, I take my key and remove the entire lock.”

“You don’t simply open the locker?”

“Not in that sense of the word. We take off the lock which is on there, the lock with the master register — everything. We then take whatever is in the locker out of the locker itself, put it in dead storage in the office, and put the locker back in service with a new lock and register.”

“Now, on the fifteenth, did you have occasion to do that with one of these lockers?”

“Yes, sir.”

“What locker was that?”

“This locker with the number you mentioned — twenty-three W.”

“And when you took the master lock off and opened it, what did you find?”

“We found a gun.”

“Now, who was with you at the time?”

“No one at that time, but I called the police, and Frankline Fulton came right out. I believe he is a sergeant.”

“He’s a member of the metropolitan police?”

“That’s my understanding, yes.”

“And at his suggestion, did you make any mark on this gun so that you would know it again?”

“Yes. We both put identifying marks on it.”

“I now hand you a Hi-Standard Sentinel twenty-two caliber revolver which has previously been introduced in evidence in this case as People’s Exhibit G. I ask you to look at that gun carefully and tell me if you have ever seen it before.”

The witness took the gun, turned it over in her hands, and said, “Yes. That’s the gun we found in the locker.”

“And that was the locker near which you had seen the defendant on the evening of the thirteenth?”

“Yes, sir.”

“Cross-examine,” Dexter said.

“You didn’t see the defendant open that locker, did you?” Mason asked.

“No.”

“Did the police dust that locker for fingerprints?”

“Yes.”

“Was anything said to you about them?”

“Only that they found several they couldn’t identify.”

Mason smiled. “Thank you, that’s all.”

“Call Agnes H. Newton,” Dexter said.

Agnes Newton had evidently spent the morning at a beauty parlor. She had selected her clothes with the hope that she would be photographed on the witness stand, and she came forward with the manner of an opera star making her entrance on the stage.

“Hold up your right hand and be sworn,” the clerk said. “Then give me your name and address.”

The woman complied.

“Miss Newton or Mrs. Newton?”

“Mrs.,” she said. “I am a widow.”

“Very well, just take the stand.”

Dexter said, “You live in the same apartment house as that in which the defendant lives?”

“I do.”

“Directing your attention to the thirteenth of this month, did you see the defendant at any time during the evening?”

“I did.”

“And where did you see the defendant?”

“She was just going out of the door of her apartment — and I saw her all the way to the stairs.

“Now, I’d better explain that,” the witness went on glibly. “You see, she lives on the third floor and she usually uses the elevator when she goes and comes. This time she didn’t use the elevator. She was in such a hurry that—”

“Just a minute,” Dexter interrupted. “It may be better if we cover this by question and answer, Mrs. Newton. Now, can you give us the time that you saw the defendant?”

“Yes, sir, I can, exactly.”

“When was it?”

“Two minutes before eight o’clock in the evening.”

“And what was she doing when you saw her?”

“She was leaving her apartment. She walked rapidly from the apartment to the stair door.”

“Did she have anything in her hand?”

“She was carrying her canary.”

“You may cross-examine,” Dexter said.

Mason started his cross-examination with the caution that a veteran lawyer uses when it becomes apparent the prosecution has dumped a witness in his lap knowing the defense attorney will have to cross-examine and that every answer the witness makes to questions on cross-examination is going to damn the defendant still more.

Mason said, “How long have you lived in this apartment house, Mrs. Newton?”

“Four years.”

“Do you know how long the defendant has lived there?”

“About eighteen months.”

“Are you inclined to be neighborly?” Mason asked smiling.

“Well, I mind my own business but I’m friendly, yes.”

“Now, do you work?” Mason asked. “Are you home all the time?”

“I don’t work, and I’m not home all the time,” she said. “I come and I go as I please. I have an income and I don’t have to work.”

“That’s very fortunate,” Mason said. “When did you first get acquainted with the defendant?”

“I saw her very shortly after she moved into the apartment.”

“That wasn’t my question,” Mason said. “I wanted to know when you first got acquainted with the defendant. When did you first talk with her?”

“Well, I don’t know. I’ve said good morning and things like that. I guess I did that very shortly after she moved into the apartment.”

“I understand. But let me put it this way. When did you first start visiting with the defendant, talking with her?”

“Well, I don’t know as I ever did talk with her much. She was a body who always kept pretty much to herself, and from what I’d heard around the apartment house—”

“Now, never mind what you’ve heard,” Mason said, “and please try not to volunteer information, Mrs. Newton. This hearing is being conducted according to strict rules of law and I want to ask you questions and have you answer just those questions and not volunteer any other information. Otherwise it might be necessary for me to ask the Court to strike out the parts of your answer that are not responsive.”

“Just don’t volunteer any information,” Judge Madison said. “Just listen to the question, then answer it. Do you understand?”

“Yes, Your Honor.”

Mason said, “May I have the indulgence of the Court for just a moment, please?”

Mason turned to Maxine. “What about her?” he whispered. “Do you know her?”

“She’s a gabby busybody,” Maxine said. “She likes to visit with everybody in the apartment house and find out all about their affairs and then go blabber-mouth everything she finds out. She’s lying. She lives on my floor, but I didn’t go out at eight o’clock, and I didn’t have any canary with me. I don’t know what happened to my canary. I—”

“Never mind the details,” Mason said. “I just wanted to get the picture. There’s something funny here. Either the prosecutor wants me to lead with my chin and ask some question that will enable her to give a devastating answer, or there’s a weak point in her testimony and he was trying to cover it up with a very terse direct examination.”

Dexter tilted back in his swivel chair at the counsel table, smiling across at Mason, knowing from long experience the predicament in which the lawyer found himself.

“That witness,” Mason said, “is booby-trapped. I hardly dare open up any new gambit, and yet I have to cross-examine her.”

The lawyer looked up to see Judge Madison regarding him with a somewhat quizzical smile.

Mason returned to questioning the witness.

“Your apartment is on the same floor as that on which the defendant’s apartment is located, Mrs. Newton?”

“That’s right.”

“And you were in your apartment at the time you saw the defendant?”

“I was not.”

“You were then perhaps walking down the corridor toward the elevator?”

“I was not.”

Mason hesitated a moment wondering whether he dared to quit or would have to go on and, catching a glimpse of Dexter’s countenance, knew that he was walking into a trap.

“Were you,” Mason asked, “standing still in the corridor, Mrs. Newton?”

“I was standing still in the corridor,” she said. “A friend of mine was coming up in the elevator and I was standing just outside the doorway of my apartment.”

“So your friend could find the apartment without difficulty?” Mason asked.

“Yes!”

“Was this friend a man or a woman?”

“Objected to as not proper cross-examination, incompetent, irrelevant, immaterial,” Dexter said.

“The objection is overruled,” Judge Madison said. “The Court wasn’t born yesterday, Mr. Dexter, and the Court recognizes the technique you have used with your direct examination on this witness. I’ll state one thing: The defense is going to have every latitude in the way of cross-examination. Proceed, Mr. Mason, and the witness will answer the question.”

“It was a man,” Mrs. Newton snapped.

“And this man had phoned that he was coming up in the elevator?”

“Yes.”

“And just how do you fix the time as being exactly two minutes of eight?” Mason asked.

Dexter’s smile broadened into a grin.

“Because he was going to watch a certain television program with me. He was late and I was afraid that the television program would start before he arrived. So when he telephoned I looked at the clock and it was just a few minutes before eight o’clock, so I went to the apartment door and held it open for him.”

“Now let’s get the location of your apartment,” Mason said. “You’re on the same floor as the apartment occupied by the defendant?”

“Yes, sir.”

“And you say that when the defendant left her apartment she went to the stairs instead of the elevator?”

“That’s right.”

“And the stairs are located near the elevator?”

“They are not! They are located at the opposite end of the corridor.”

“And the defendant’s apartment is between you and the elevator?”

“Between my apartment and the stairs,” she said.

“Oh, I see,” Mason said. “Then you were standing in the corridor by the door of your apartment eagerly awaiting the visit of your boy friend.”

“I didn’t say he was my boy friend, and I didn’t have to be eager about it!” the witness snapped.

“Let me put it this way,” Mason said. “You were anticipating the visit of a man who was coming to call on you; you were alone in your apartment at the time?”

“Yes.”

“He was going to watch a television program with you?”

“Yes — among other things.”

“I see,” Mason repeated, with a slightly mocking smile, “among other things, I believe you said?”

“That’s what I said!”

“And you were waiting by the door of your apartment so that this friend of yours, this masculine friend, if you object to the term ‘boy friend,’ Mrs. Newton, wouldn’t miss the apartment?”

“Well, I was showing him the apartment.”

“Then this was the first time he had been up there?” Mason said.

“I didn’t say that.”

“Well, I’m asking you that. Was it the first time he had been up there?”

“No, it wasn’t.”

Mason raised his eyebrows. “Well, was the young man intoxicated, Mrs. Newton?”

“Certainly not!”

“He was in full possession of his mental faculties, as far as you know?”

“Of course.”

“Then why was it necessary for you to stand at the door of your apartment in order to show him the location of the apartment, if he already knew where it was?”

“Well, I was being hospitable.”

“But that isn’t what you said in your earlier testimony. You stated that you were standing there to show him the apartment.”

“Well, I was.”

“But he already knew the location of the apartment.”

“Well, I wanted to make certain he didn’t forget.”

“How many times had he been to your apartment prior to this visit?”

“I don’t know.”

“Oh, Your Honor,” Dexter said, “this is getting entirely out of hand. This is becoming a cross-examination of this witness as to her social life and an attempt is being made to hold her up to public ridicule simply because she was doing something that was perfectly natural: standing in the door of her apartment to welcome a visitor.”

“With open arms?” Mason asked.

Judge Madison smiled.

Dexter turned angrily to Mason and said, “It was a thoroughly natural gesture, and you know it, and this examination is for the purpose of embarrassing the witness.”

“Not at all,” Mason said. “I am simply trying to ascertain how it could be that if she was standing in the doorway watching the elevator for the purpose of seeing her friend as soon as he left the elevator in order to guide him to her apartment, she was also able to see behind her and notice the defendant leaving her apartment and walking in the opposite direction. I take it there is no claim she has eyes in the back of her head.”

Judge Madison said, “Gentlemen, let’s have no more personalities. Please address your remarks to the Court. This is quite plainly a case where a witness has been given a very perfunctory direct examination and counsel expects opposing counsel to develop the circumstances. Cross-examination of such a witness is, well, to use a popular expression, it’s loaded with dynamite. The defense attorney is forced to cross-examine, and he’s proceeding in the dark, realizing, of course, the danger which exists.

“The Court is watching the development of the situation with a great deal of interest, just as the prosecutor is watching it with a great deal of amusement. The Court certainly doesn’t intend to interfere as long as the cross-examination is within anything like reasonable limits, and the Court will confess that it has been puzzled as to how the witness could see the defendant emerge from her apartment, which was opposite to the direction in which the witness was looking, and follow her all the way to the stairs, while at the same time she was watching the elevator.”

“Well,” Mrs. Newton snapped, “I didn’t have to stare at the elevator. I was conscious of other things that were taking place. I didn’t keep my eyes riveted on the elevator.”

“Don’t argue with me,” Judge Madison said to the witness, “and don’t volunteer information. Mr. Mason will doubtless cover this point by questioning, and you may answer his questions.”

The grin had faded from Dexter’s face. He now seemed slightly concerned.

Mason said, “Now you have fixed the time as being two minutes of eight, Mrs. Newton?”

“I have.”

“And you approximated that time because of—”

“I didn’t approximate it. That’s accurate.”

“And just how did you fix it?”

“Because the television program we wanted to watch came on at eight o’clock.”

“You had expected this boy friend of yours earlier?”

“I didn’t say he was my boy friend.”

“He was a man?”

“Yes.”

“He was a friend?”

“Naturally.”

“Then I’ll refer to him as a man friend,” Mason said. “You had expected this man friend earlier?”

“I’d been waiting for him ever since... well, half past seven.”

“That was when he was due to arrive?”

“That was when I expected him.”

“So you were annoyed at the delay?”

“I was somewhat apprehensive.”

“Apprehensive?” Mason asked. “You thought perhaps he wasn’t coming?”

“No, I thought perhaps something had happened to him.”

“He’d been up to your apartment before?”

“I already said he had.”

“Was he in the habit of coming late?”

“I don’t make appointments by the clock.”

“But this time you did?”

“I made this appointment by the television.”

“Did you make the appointment, or did he?”

“Well, I suggested that... well, I don’t know. It’s just one of those things that happen.”

“So you were a little apprehensive as you were watching the elevator?”

“I had been apprehensive prior to that time. I wasn’t apprehensive when I was watching the elevator; I was expectant.”

“Was the defendant standing in the hall when you opened the door?”

“No, she came out afterwards.”

“You saw her when she emerged?”

“Well, I... yes.”

“Did you see her when she was emerging?” Mason asked.

“What do you mean by that?”

“Did you see her as soon as she opened the door?”

“The door was opened once and then closed again, and then opened the second time and the defendant came out holding this canary cage. She closed the door and hurried down the corridor.”

“Did you speak to her?”

“I didn’t have the chance.”

“What do you mean?”

“She didn’t even turn around.”

“Oh, then her back was to you?” Mason said.

“Naturally. If she was going to the stairway, her back had to be toward me. She wouldn’t have walked backwards.”

There was a slight titter in the courtroom. Judge Madison started to say something, then smiled and settled back in his chair.

“Did she have her back to you when she came out the door?” Mason asked.

“Yes.”

“Did you take your eyes off the elevator while you were watching her?”

“No, I— Well, I was sort of looking in both directions.”

“At the same time?”

“Well, alternating.”

“You were turning your head back and forth just as rapidly as you could turn it?”

“Certainly not! I was primarily interested in the elevator. I saw the defendant — well, just like you’d see anything incidentally.”

“And was her back to you when she came out of the apartment carrying the bird cage?”

“Yes. She backed out of the apartment, holding the bird cage.”

“Pulled the door shut and walked rapidly toward the stairs?”

“I’ve already told you that a dozen times.”

“So you never did see her face,” Mason said.

“I didn’t have to see her face to recognize her. I recognized her figure; I recognized her clothing.”

“So you didn’t see her face?”

“I saw her clothes.”

“So you didn’t see her face?”

“No.”

“What was she wearing?”

“A tweed coat.”

“Can you describe that coat? Was it tight-fitting or—”

“No, it was a loose-fitting, baggy, tweed coat.”

“A long coat or a short coat?”

“A long coat. It came to her knees — a little below.”

“You’d seen her in that coat before?”

“Many times.”

“And during all of this time you were waiting for your man friend to emerge from the elevator?”

“Yes.”

“And keeping your eye on the elevator so that he wouldn’t miss your apartment?”

“I wanted to welcome him.”

“Then you were standing there not because you wanted him to know where the apartment was, but because you wanted to give him your welcome in person?”

“Oh, if the Court please,” Dexter said, “that question has been answered several times.”

“And in several different ways,” Judge Madison said. “The witness may answer the question.”

“All right!” she said angrily. “I don’t know why I was standing there. It was just a natural gesture. I was... well, I was there, and it doesn’t make any difference why I was there. I was there and I saw this defendant emerge from her apartment carrying that caged canary.”

“When your man friend emerged from the elevator, did you run toward him?”

“No.”

“Did you walk toward him?”

“No.”

“You just stood there and let him walk all the way?”

“Well, I moved a few steps.”

“Walking, or running?”

“Walking.”

“Then you did walk to meet him?”

“Well, not all the way.”

“Part of the way?”

“Yes.”

“And during that time you had your back turned to the defendant?”

“She had gone before that. She opened the stair door and just shot through it.”

“Before your man friend emerged from the elevator?”

“At just about the same time.”

“What were the lighting conditions in the hallway of the apartment house, Mrs. Newton? The lighting was rather dim, I take it?”

“Well, you take it wrong,” she said. “I had been complaining about the lighting and so had some of the other tenants and beginning with the first of the year the management had put in a whole new series of lights — and it was high time they did it. The way things had been it was just as dark as a pocket. A body could have got herself hurt there.”

“So the lighting conditions were good?”

“They were.”

Mason hesitated a moment. “Do you have a driving license, Mrs. Newton?”

“Of course I do.”

“May I see it?”

“Well, I certainly don’t see what that has to do with it,” the witness said.

“Nor do I,” Dexter announced, getting to his feet. “If the Court please, I think it is incompetent, irrelevant and immaterial.”

Judge Madison shook his head. “This is cross-examination,” he said. “This witness has testified to a recognition of the defendant under circumstances which could be very vital to the defense, and I have no intention of limiting the cross-examination of defense counsel as long as the examination is within reasonable limits. Moreover, the Court thinks it knows what counsel is after and it is certainly pertinent.”

The witness reluctantly opened her purse, produced her driving license. “This gives the date of my birth,” she said, “and I certainly don’t want to have my age published in the newspapers. I just don’t think it’s anyone’s business.”

“I wasn’t interested in the date of your birth,” Mason said, taking the driving license. “I was interested in whether there were any restrictions — ah yes, I see that your driving license says that you must wear corrective glasses.”

“Well, what about it?” snapped the witness.

“You don’t seem to have any glasses on now,” Mason said.

“Well, I’m not driving a car now.”

“And you weren’t driving a car on the night of the thirteenth when you saw a figure that you thought you could recognize as that of the defendant.”

“I didn’t see a figure I thought I could recognize as that of the defendant. I saw the defendant. She was walking out of that apartment carrying her bird cage, and I just said to myself, I said to myself—”

“Never mind what you said to yourself,” Mason interrupted with a smile, “that would be hearsay. Let me ask you, Mrs. Newton, can you see the headline on this newspaper I’m holding up?”

“Certainly I can see it. And I can read it. And I can read the smaller headlines. I can read those headlines over in the right-hand corner: president contemplates: balanced budget for next fiscal year.”

Mason frowned thoughtfully, said abruptly, “Are you wearing contact lenses, Mrs. Newton?”

“Yes!”

“When did you first wear contact lenses?”

“I got them on the afternoon of the twelfth.”

“And discarded your other glasses?”

“Not all at once. I alternated — I still do.”

“So on the thirteenth you hadn’t as yet become fully accustomed to your contact lenses?”

“Well, I could see with them all right.”

“But you were wearing them only a short time each day?”

“Yes.”

“Did you have them on when you emerged from your apartment and saw the figure you take to be that of the defendant in the corridor?”

“I don’t remember.”

“Well, let’s see if we can refresh your memory,” Mason said. “When did you put them in on the thirteenth, in the morning?”

“I don’t remember.”

“You recognized the figure you now say was that of the defendant, by the clothes?”

“I’d know that tweed coat of hers anywhere.”

“It wasn’t form-fitting?”

“I’ve told you it wasn’t. It was a baggy, tweed coat.”

Mason said, “Then you couldn’t see the face, you couldn’t see the figure. All you could see was the coat and the caged canary.”

“What more do you want?”

“I don’t want anything,” Mason said smiling, “except to have you tell the truth. Now, you couldn’t recognize the defendant by her form, could you, because you couldn’t see her form.”

“That question is argumentative, if the Court please,” Dexter said.

“I’m going to allow it anyway,” Judge Madison said. “I think the situation is quite obvious here and if counsel wants to develop it for the record I’m going to permit him to do so.”

“I couldn’t see her figure; she had her clothes on.”

“By clothes you mean this baggy, tweed coat?”

“She had other clothes on.”

“But you couldn’t see them.”

“I can’t see through a coat. I don’t have X-ray eyes.”

“So all you could see was a figure wearing a tweed coat”

“Well, I guess I know the coat when I see it.”

“And carrying a bird in a cage.”

“A caged canary.”

“Could you see the bird?”

“I saw the bird well enough to know it was a canary.”

“And in view of the fact that you didn’t intend to drive your car,” Mason said, “the probabilities are that you didn’t have your glasses on. Is that correct?”

“All right,” the witness snapped. “I didn’t have my glasses on, but I’m not blind, Mr. Mason.”

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

“No redirect,” Dexter said.

“Call your next witness,” Judge Madison directed.

“That’s our case, Your Honor,” Dexter said. “The People rest.”

“Well,” Judge Madison said, “of course the testimony has some gaps, as Mr. Mason has so dramatically pointed out. The defendant was seen near this locker. However, she was not seen opening the locker, or putting anything in it.

“Of course, however, it is her gun and, while Mr. Mason’s dramatic cross-examination of the last witness indicates that there may be weak links in the evidence, there seems to be no alternative for this Court but to bind the defendant over and...”

Mason rose.

“And since it is a murder case,” Judge Madison went on, “the defendant will not be admitted to bail.”

“May I make a statement, if the Court please?” Mason asked.

“Certainly,” Judge Madison said.

“The defendant wishes to put on a case.”

Judge Madison frowned, hesitated a moment, then spoke cautiously, weighing his words. “The Court had no intention of precluding the defendant from putting on a case. The Court had naturally assumed that there would be no defense, since this is merely a preliminary hearing.

“The Court apologizes to counsel for starting to make its order binding the defendant over without asking the defendant’s counsel if he wished to put on any case.

“Having said that, however, may the Court point out that in a matter of this sort where the only question before the Court is whether a crime has been committed and there is reasonable ground to believe the defendant committed that crime, it does no good to raise a conflict in the evidence. The Court’s duty is apparent.

“I take it the defense understands this somewhat elemental situation?”

“The defense understands it,” Mason said.

“Very well,” Judge Madison said, if you wish to put on a defense, go ahead.”

Mason said, “I’ll call Goring Gilbert to the stand.”

Gilbert, his shirt now buttoned and tucked in his slacks, and wearing shoes and a sport coat, came forward, raised his right hand and seated himself on the witness stand.

After the witness had given his name and address to the clerk of the court, Mason said abruptly, “Did you know Collin Max Durant in his lifetime?”

“I did.”

“Did you have any business transactions with him?”

“Several.”

“Within the last several weeks did you have any business transactions?”

“Yes.”

“As a result of that business, did he give you a sum of money?”

“Yes. He paid me for some of the work I did.”

“How was that money paid to you, in cash or by check?”

“In cash.”

“And how was it paid in cash? Were there bills of any particular denomination?”

“The last money I received from him was all in one-hundred-dollar bills.”

Judge Madison frowned thoughtfully and leaned forward on the bench to look down at the witness.

“And what were you hired to do?” Mason asked.

“I was hired to do various paintings.”

“You completed those paintings?”

“I did.”

“And what did you do with them?”

“They were delivered to Collin Durant.”

“Do you know where those paintings are now?”

“No.”

“What?” Mason exclaimed.

“I said I didn’t know where they were.”

“I will call your attention to a painting I examined at your studio, one that was in the style of a painter named—”

“I am familiar with that painting.”

“Where is it now?”

“I have it.”

“You were served with a subpoena duces tecum to bring a painting with you?”

“I was.”

“That was the same painting I looked at in your studio?”

“Yes.”

“And you have that painting here?”

“Yes. It is wrapped up and in the witness room.”

“Will you get it, please?”

“Now, just a moment,” Dexter said. “I haven’t objected to this line of examination, if the Court please, because I felt certain counsel intended to connect it up.

“As far as the one-hundred-dollar bills are concerned, it is possible — barely possible — that the testimony is pertinent. But as far as this painting is concerned, it is very plainly incompetent, irrelevant and immaterial, and I object to it on that ground.”

“So it would seem,” Judge Madison ruled. “The payment in one-hundred-dollar bills is an interesting development, but unless those one-hundred-dollar bills can be identified in some manner — I take it counsel intends to connect them up?”

Judge Madison looked at Perry Mason. Mason said, “If the Court please, I intend to connect up this painting.”

Judge Madison shook his head. “I don’t see that the painting can be at all relevant. The money that was paid for the painting might have some bearing.”

Mason said, “I intend to connect up the painting, Your Honor.”

“No,” Judge Madison said, “I think you should go at it the other way, Counselor. I think you should first show the fact that the painting is pertinent according to some phase of the case before you try to introduce it.”

“I intend to do that,” Mason said.

“I think you had better do it, then.”

“However” Mason said, “while this witness is here, if the Court rules that I can’t have this painting introduced in evidence, I certainly would like to have it marked for identification and retained in the custody of the clerk until I have connected it up.”

“I take it there is no objection to that procedure?” Judge Madison asked Dexter.

Dexter seemed somewhat uncertain. After a moment he got to his feet. “If the Court please, this witness is here in response to a subpoena duces tecum, he has brought the painting, the painting isn’t going to run away.”

“Paintings don’t run away,” Mason said, “but it might be taken away.”

“Well, it’s here now. It can be brought back at a later date.”

“If it is marked for identification and left in the custody of the court, it will—”

“Very well,” Judge Madison interrupted. “The Court is going to so rule. Produce the painting, Counselor.”

Mason said to Gilbert, “Will you produce the painting, please?”

Gilbert, sullen, plainly hostile, hesitated. “It’s my painting. I don’t think that anyone has any right to take it away from me.”

“Produce it, please, and we’ll take a look at it,” Judge Madison said. “That is the Court’s ruling.”

Gilbert left the witness stand, went to the anteroom, shortly returned with a painting covered with wrapping paper. He angrily ripped off the wrapping paper and held up the painting.

Judge Madison looked at the painting, blinked his eyes, and looked again at Gilbert. “Did you do that, young man?” he asked.

“Yes, Your Honor.”

“That’s a very good painting,” Judge Madison said.

“Thank you.”

“You may resume your position on the witness stand.”

Gilbert walked back to the witness stand.

“This painting that you have produced,” Mason asked, “is one that you did at the request of Collin M. Durant, the decedent?”

“Now, just a moment, before you answer that question,” Dexter said, “I’m going to object to this on the ground that it is incompetent, irrelevant and immaterial; that this painting has absolutely no bearing on the issues in the case.”

“At the present time I think that is correct. The objection will be sustained.”

“I ask, if the Court please, that this painting be marked for identification,” Mason said.

“So ordered,” Judge Madison said.

“And left with the clerk in the custody of the court.”

“For how long?” Judge Madison asked. “How long will it take you to get to the matter in hand, Counselor?”

“I would like to have until tomorrow to do so.”

“You mean you have a case which is going to take all afternoon?” the judge inquired.

“If the Court please,” Mason said, “I intend to put the defendant on the stand.”

“Put the defendant on the stand!” Judge Madison echoed incredulously.

“Yes, Your Honor.”

Dexter jumped up, paused openmouthed, looked at Mason, looked at the judge, and then slowly sat down.

“And,” Mason said, “in order to prepare for this rather unexpected development in the case, I would like to have a recess until three-thirty this afternoon. I may state to the Court that my determination to put on a defense was not reached until a few minutes before the prosecution concluded its case.”

“You have a right to put on a defense and you have a right to have a reasonable continuance in order to get your witnesses here,” Judge Madison said. “Do I understand, Mr. Mason, that you now state you are going to put the defendant on the witness stand?”

“I am going to put the defendant on the witness stand,” Mason said.

“Very well, that’s your privilege,” Judge Madison said. “I may point out that it is very seldom, if ever, done in a preliminary hearing in a murder case.”

“Yes, Your Honor.”

Judge Madison said, “I suppose you know what you’re doing... Very well. Court will take a recess until three thirty... I would like to see counsel for the defendant in chambers, please.”

“Yes, Your Honor,” Mason said.

Judge Madison left the bench and went into his chambers. Dexter said to Mason, “What kind of a stunt are you trying to pull now?”

“No stunt at all,” Mason said. “The defendant certainly has a right to let the Court know her story.”

“You mean to let the newspapers know it.”

“Any way you want it,” Mason said.

“It’s your party,” Dexter said, “and it’s your funeral.” He picked up his brief case and walked out.

Mason went into chambers, and Judge Madison, hanging up his robe in the closet, turned to the lawyer and said, “Now, look here, Mason. I’ve known you for a long time. You’re a shrewd, clever lawyer. You have a good-looking client who is very probably going to appeal to the sympathies of a jury, but you know this Court well enough to know that tears and nylon are not going to have any effect on my judgment.”

“Yes, Judge,” Mason said.

“All right. Don’t do it.”

“Don’t do what?”

“Don’t put your defendant on the stand. You know better than that. You get her on the witness stand and there’ll be a record made of her testimony, they’ll try to tear her to pieces with cross-examination, and then when she gets in the Superior Court she has two strikes against her. Everything she says, every answer she gives, has got to be exactly like the story she told at the preliminary hearing. Now, I’d feel different about it if it could do any good, but I just want to tell you off the record what I told you on the record in court. I’m going to bind this defendant over for trial and no amount of explaining or denial on her part is going to stop me.

“It was her gun that killed Durant. He was killed in her apartment. She resorted to flight immediately after the murder. She left the apartment without even pausing long enough to pack up her things. All she took with her was her canary. She lied to the officers about the time she left the apartment and she went down to the bus station and stayed down there until she could get you on the phone. She concealed the gun in one of the lockers there and left it. Then she gave your secretary the key to her apartment and skipped out.

“Now, you may be able to beat that case in front of a jury. You’re clever and you have a good-looking client. But you can’t figure out any possible combination of facts which would keep a committing magistrate from binding the defendant over under circumstances such as that, so why lead with your chin?”

Mason said, “I’m taking a calculated risk.”

Judge Madison said, “The minute I make an order binding that defendant over for trial, every lawyer in the country is going to be grinning and stopping his brother lawyers and saying ‘Did you hear about Perry Mason’s goof?’ ”

“I know it,” Mason said.

“Damn it!” Judge Madison expostulated. “I’m your friend. I’m trying to keep you from doing something you’ll regret.”

“I’m going to take a calculated risk,” Mason said.

“All right,” Madison said, “go ahead and take it. But just remember that tears and nylon mean nothing to me.”

“I’ll remember,” Mason said.