The Case of the Reluctant Model

Chapter Eighteen

Hamilton Burger, the district attorney, was personally present when court reconvened. He was seated beside his trial deputy, his manner indicating very plainly that he felt Perry Mason had blundered, and the district attorney, who had long been feuding with the defense lawyer, intended to be there in person to take full advantage of the opening Mason had given.

“I call Maxine Lindsay to the stand,” Mason said. “Just go up there and hold up your right hand, Maxine. And,” he added, “tell the truth.”

“No need of the grandstand,” Hamilton Burger said. “There’s no jury here.”

Judge Madison smiled but said quietly, “I would like to have counsel refrain from personalities, please.”

Mason said, “Maxine, you remember the night of the thirteenth?”

“Very well,” she said.

“You knew Collin Durant in his lifetime?”

“Yes.”

“How long had you known him?”

“Some— I can’t remember. Three or four years.”

“Were you friendly with him?”

“I had been friendly with him and — well, I knew him. I did things for him.”

“Now,” Mason said, “I want you to listen to my questions very carefully, Maxine, and answer the questions without volunteering information.”

“Yes, sir.”

“Are you acquainted with Otto Olney?”

“I am.”

“Were you present on his yacht at a time when you had a conversation with Mr. Durant about one of Mr. Olney’s paintings?”

“Yes.”

“And what did Mr. Durant say?”

Judge Madison pursed his lips. “We’re now getting into a realm where—”

Hamilton Burger jumped to his feet. “If the Court please,” he said, “we are not making any objection. We want Mr. Mason to go right ahead. Every subject that he opens up gives us a new gambit for cross-examination. We don’t intend to object to any question he may ask.”

“I can appreciate the attitude of the district attorney,” Judge Madison said, “but after all, this Court has a crowded calendar... However, there being no objection, I’ll let the question stand.”

“Can you tell us what happened with reference to one of the paintings?” Mason asked.

“Mr. Durant came to me and told me that a painting Mr. Olney had on his yacht, a painting supposedly by Phellipe Feteet, was a fake. Later on he told me to report that conversation to Mr. Rankin.”

“And who is Mr. Rankin?”

“That is Lattimer Rankin, an art dealer. He was, I believe, the art dealer who had sold Mr. Olney the picture.”

“And what did Mr. Durant tell you about this picture?”

“He said in effect that I was to tell Mr. Rankin that he, Durant, had pronounced the picture a fake and that it was a fraud.”

“That was a painting of some women under a tree?”

“Yes.”

Mason said, “I am going to show you a picture which was marked for identification and ask you if that is the same picture.”

Judge Madison looked at Hamilton Burger. “No objection,” Hamilton Burger said, beaming. “We want counsel to have all the rope he wants to take.”

Judge Madison pointed out, “This probably will lay the foundation for the introduction of that picture in evidence.”

“If he wants to put the defendant on the stand in order to get it in, let him put it in,” Hamilton Burger said. “Let him put in anything he wants, let him open all doors for our cross-examination.”

“Very well,” Judge Madison said crisply.

Mason said, “I’ll put it this way, Maxine. I’m going to show you a picture which was marked for identification. You saw that picture at the time it was brought into court?”

“I did.”

“Now, listen to the question carefully, Maxine. Is that picture, that painting which I now show you and which has been marked tentatively for identification as Defendant’s Exhibit Number One, is that the painting, the one Mr. Durant pointed out to you, and which he told you to tell Mr. Rankin was a forgery?”

“I don’t know.”

“Can you answer the question any better than that?”

“I’ll say this, it is a painting that is absolutely similar. If it isn’t the same one that was hanging there, it looks like the same one.”

“Now, on the night of the thirteenth did you have any further conversation with Mr. Durant?”

“I did.”

“At what time?”

“At about six o’clock in the evening.”

“And what did Mr. Durant tell you at that time?”

“Mr. Durant told me to get out of town, fast, and not to leave any trail — not to stop to take anything with me, just to get out.”

“When did he tell you to leave?”

“Within an hour. He said I couldn’t be in my apartment any later than that.”

“Did you have any conversation about money?”

“I told him that I didn’t have enough money to travel and he said that he would try to get me some money. He said I was to wait an hour for him to return, that if he could raise some money for me he would do so; that if he couldn’t, I would have to get along as best I could, even if I had to hitchhike or wire my sister for money.”

“You have a married sister living in Eugene, Oregon?”

“I do.”

“Did you report to Mr. Durant that you had told Mr. Rankin that the picture in Otto Olney’s yacht, in the main salon of that yacht, the picture purporting to be by Phellipe Feteet, was a fake?”

“Yes.”

“And did you tell him anything you had done in connection with that litigation?”

“Yes, I told him that I had signed an affidavit in your office, stating that Mr. Durant had told me the Phellipe Feteet in Otto Olney’s yacht was a fake.”

“And it was after you had made that statement to Mr. Durant that he told you to get out of town?”

“Yes.”

“Now I’m going to ask you, Maxine, if Mr. Durant had some hold on you?”

“He did, yes.”

“There was some bit of information that he was threatening to disclose if you did not do as he wished?”

“Yes.”

Mason said, “If the Court please, I feel that this painting should now be introduced in evidence.”

“We object to having the painting introduced in evidence at this time,” Hamilton Burger said. “There is nothing to show that it is a forged Phellipe Feteet painting, there is nothing to show that it ever hung on the wall of the main salon in Otto Olney’s yacht and—”

“We don’t claim that it ever hung on the wall there,” Mason said. “We don’t think it did.”

“What?” Judge Madison asked, puzzled.

“I think, if the Court please,” Mason said, “the plot was much deeper than appeared on the surface.”

Hamilton Burger said, “Of course, if the Court please, this whole thing is extraneous except as it shows motivation for murder, and we want to develop that gambit on cross-examination. However, let us suppose that the decedent was a swindler who was engaged in an attempt to swindle Mr. Olney or Mr. Rankin or both; that still doesn’t give the defendant the license to murder him. We don’t have an open season on swindlers, nor do we have an open season on blackmailers.”

Judge Madison said, “The fact remains, Mr. Mason, that this painting which has been marked for identification is so far an isolated issue in the case. In other words, a witness has testified that the decedent paid him to make several paintings. But that witness said, unless I misunderstood him, that this painting was one he had been hired to make but he didn’t state specifically it was Durant who had employed him to make it. Now the defendant has testified that this painting looks like one that was hanging in the main salon of a yacht, and which Durant told her was a forgery. But we haven’t established that it is either a copy, or a forgery, or the original.”

“Exactly,” Mason said, “and I want to be able to establish exactly what it is.”

“Well, go ahead and establish it,” Judge Madison said. “For all the present testimony shows, this could be the original. It looks too good to be a copy.”

“In order to establish what it is,” Mason said, frowning thoughtfully, and apparently conceding the point reluctantly, “I would have to withdraw this witness temporarily and ask some more questions of the previous witness, Goring Gilbert.”

“Very well,” Judge Madison said, “if you want to get that painting in evidence at this time we will have a voir dire examination in regard to the painting. You may step down, Miss Lindsay, and Mr. Gilbert will take the stand.”

Hamilton Burger half got to his feet as though to object, then hesitated and dropped back into his chair.

Mason, biting his lip, apparently with annoyance, turned so that his back was to Hamilton Burger and gave Della Street a reassuring wink.

Gilbert once more took the stand.

“Were you hired to make a copy of a painting that was in the yacht of Otto Olney?”

Gilbert said, “Yes.”

“And you made such a copy?”

“Yes.”

“And this painting which I now show you, which is marked for identification as Defendant’s Exhibit Number One, was that painting?”

“Yes.”

“You were paid for it?”

“Yes.”

“How much?”

“Two thousand dollars.”

“How were you paid?”

“Haven’t we gone all over this?” Judge Madison asked.

“This is now preliminary merely and I want to be sure the foundation is in,” Mason said, glancing surreptitiously at the clock.

“Very well, very well,” Judge Madison said. “Go ahead.”

“I was paid two thousand dollars in cash, in the form of twenty one-hundred-dollar bills.”

“And you made this copy?”

“I did.”

“I think that’s all the questions I have of this witness,” Mason said. “I take it the prosecutor has no desire to cross-examine this witness.”

“On the contrary,” Hamilton Burger said, “the prosecution certainly does intend to cross-examine this witness. And while the prosecution intends to give the defense counsel every latitude in asking questions of the defendant, the prosecution intends to object to the introduction of this painting at this time. It hasn’t been connected up with anything.”

“This is on voir dire to identify the painting,” Judge Madison said. “It is a limited proceeding, simply for the purpose of laying a foundation.”

“That’s why I want to cross-examine the witness.”

“Very well, go ahead,” Judge Madison ordered. “We still have a few minutes before adjournment.”

“I doubt if I can complete my cross-examination before time for adjournment.”

“It’s all right. Go ahead and start your questions.”

“When did you first talk with Durant about copying pictures?” Hamilton Burger asked.

“About a year ago.”

“And you made copies of several pictures for him?”

“Not exact copies. I copied the style, not the picture.”

“But this picture is an exact copy?”

“Yes.”

“Of a painting owned by Otto Olney?”

“Yes.”

“And Durant paid you to make this copy?”

“No.”

“What?”

“I said no.”

“Oh, I see. He didn’t pay you, so you retained possession of the picture, is that right?”

“No.”

“Didn’t you say you were paid two thousand dollars in hundred-dollar bills for making this picture?”

“Yes.”

“And then you retained the picture?”

“Yes.”

Burger, suddenly suspicious of a trap, hesitated, then bent over for a whispered conference with Dexter.

After a few seconds he straightened and said, “Did the defendant pay you to make this copy?”

“No.”

“Who did?”

“It has no connection with this case, so I am not going to divulge the name of my client.”

“Whether it has any connection with this case isn’t for you to say, young man,” Hamilton Burger thundered. “I want an answer to my question.”

“Just a moment,” Mason said. “The district attorney is not entitled to an answer to that question unless he concedes that the painting is pertinent to the case. If the painting is entirely without the issues of this case, then the district attorney isn’t entitled to an answer to that question.”

“You’ve made it a part of the case,” Hamilton Burger said. “I have a right to cross-examine the witness on anything you’ve brought out on direct examination.”

Mason said, “I didn’t bring out the name of the person who had hired him to make the painting.”

“I understood it was Collin Durant,” Burger said.

“Go back and look at the testimony,” Mason said, “and you’ll see the witness never said it was Collin Durant.”

“Well, I’m entitled to an answer to my question.”

Mason said, “If the Court please, the prosecution can’t eat its cake and have it too. If the prosecution wants to stipulate that this painting is a part of this case and that it is a material factor in the case, then I am entitled to have the painting introduced in evidence and the prosecutor can force the witness to answer this question, unless, of course—” here Mason paused and glanced significantly at the witness, slowing his diction so the words came slowly and distinctly — “unless, I repeat, he should state that the answer to that question would involve him in a crime, in which event the witness couldn’t be forced to answer the question.”

Judge Madison regarded Burger’s flushed face, then looked at Mason, then at the defendant. “This is a most peculiar situation,” he said.

“I’m entitled to cross-examine any witness that the defendant puts on the stand as to any matter connected with the testimony the witness has given,” Hamilton Burger said doggedly.

“But this is a proceeding in voir dire,” Judge Madison ruled.

“That makes no difference. I’m entitled to a cross-examination.”

“Provided the question relates to issues which are relevant to the case. You can’t cross-examine a witness on issues which are irrelevant, despite the fact that the witness may have been asked those questions on direct examination.

“Now, you will remember, Mr. District Attorney, that the Court called your attention to the fact that some of the questions called for irrelevant testimony, but you stated that you weren’t going to make any objection, that you wanted the defense to open up all possible doors for your cross-examination.

“You may adopt that attitude, but it is not binding on the Court. The Court doesn’t have to sit here and listen to a lot of evidence which is entirely extraneous. Now, the Court is inclined to believe that Mr. Mason is correct; that if you are going to insist on an answer to something which was not brought out in direct examination and which is not relevant, then the defense is entitled to object. The only way that it would be relevant for you to inquire into the antecedents of this picture would be if the picture itself is going to be introduced in evidence.”

“Well, the defense is trying to get it introduced,” Burger said.

“And you’re trying to keep it out,” Judge Madison ruled. “Now I want to give everyone every opportunity to present competent evidence, but I don’t want to have time taken up with extraneous matters.

“I noticed earlier in the day that this witness did not definitely state that Collin Durant had commissioned him to paint this particular picture, and now he has gone farther and has stated definitely that Collin Durant did not hire him to make this copy. Now then, you want to know who did. That question certainly is of no relevancy unless it has some bearing on the case itself, and it can have no bearing on the case unless the picture is to become a part of the case.”

“Well, I want to know about it,” Hamilton Burger said, “and I think I’m entitled to.”

“Do you now concede then, that the picture is a part of the defendant’s case?”

“No, I do not.”

“At this time, if the Court please,” Mason said, “I move that this picture, which has previously been marked for identification as a defense exhibit, be introduced in evidence as a part of the defendant’s case.”

“I object,” Hamilton Burger said. “No proper foundation has been laid.”

Judge Madison smiled and said, “Then I think I will sustain Mr. Mason’s objection to the question. I think this is a matter which calls for some investigation. It’s highly technical but, nevertheless, it relates to the introduction of extraneous matter and the cross-examination of a witness on points which even the cross-examiner contends are irrelevant to the case.”

“It’s not irrelevant on the voire dire,” Burger said.

“But the picture itself is irrelevant?”

“Yes.”

“Then,” Judge Madison said, “if it wasn’t ordered by the decedent, and it wasn’t ordered by the defendant, what possible reason could there be for finding out who ordered it?”

“I want to know,” Hamilton Burger said. “I’d like to satisfy my curiosity.”

“Your curiosity isn’t one of the things that’s in issue in this case,” Judge Madison said. “I’m trying to restrict the evidence to pertinent questions. If you’re going to object to the introduction of this picture, I presume you intend later on to move to strike out all evidence concerning the picture on the ground that it is incompetent, irrelevant and immaterial.”

“That is true, Your Honor,” Burger said.

“Under those circumstances,” Judge Madison said, “until this picture is further identified, I am not going to force this witness to divulge the names of his clients, particularly when it appears that the name of that client has nothing to do with the issues in this case. Or, to put it in another way, until there is something to make it appear that the name of the client would have anything to do with the issues. I think I will sustain the objection.

“However, it is so close to the hour of afternoon adjournment that I am going to hold the matter over until tomorrow morning. Quite frankly, I want to look up some of the authorities in regard to the right of cross-examination on extraneous evidence.”

Again Hamilton Burger had a brief, whispered conference with his associate, then said, “If the Court please, I have no objection to a continuance. I, too, would like to look up some authorities. We will take the matter up in the morning.”

“Very well,” Judge Madison said. “Court is adjourned until nine-thirty tomorrow morning.”