The Case of the Shapely Shadow

Chapter Fifteen

When court reconvened at two o’clock, Hamilton Burger said, “If the Court please, at this time the prosecution would like to reopen its case.”

Judge Seymour shook his head. “I think not, Mr. Prosecutor,” he said. “The prosecution had that opportunity and elected not to take it. You stated that you would reserve the evidence which you had for rebuttal. Now that the defense has rested there can be no rebuttal. The Court sees no reason for permitting a prosecutor to gamble on what is going to take place and then, in the event he loses, to reshuffle the cards so there will be a new deal. The evidence in the case is closed. Are you ready to proceed with the argument?”

“Under those circumstances,” Hamilton Burger said, “we ask that the Court recess until tomorrow morning in order to give us an opportunity to prepare for argument and we can then put in a full day in argument to the jurors.”

Judge Seymour glanced at Perry Mason. “Does the defense have any objection?”

“The defense wants to proceed,” Mason said. “The district attorney is an officer of the people and paid by the taxpayers. He has expressed himself as being very much concerned at the cost to the taxpayers of undue delay in these matters so we’re quite willing to give the taxpayers a break by proceeding right now.”

“Very well,” Judge Seymour said, “the motion is denied. Proceed with your opening argument, Mr. District Attorney.”

“We waive our opening argument,” Hamilton Burger said.

“Very well, Mr. Mason, proceed for the defense,” Judge Seymour said.

Perry Mason arose, walked over to face the jury, smiled at them and said, “Ladies and gentlemen of the jury, this is going to be a very brief argument.

“The Court will instruct you that in a case depending upon circumstantial evidence if there is any reasonable hypothesis, other than that of guilt, upon which the circumstantial evidence can be explained, it is your duty to acquit the defendant.

“That is a part of the doctrine of reasonable doubt, which is a part of our law and a part of our basic system of the administration of justice.

“Now then, you people can very readily see what happened in this case. It depends entirely upon circumstantial evidence. You have the story of the defendant through the lips of the police witnesses who told you about her story of the suitcase and the letter which had been composed of headlines clipped from newspapers.

“It now becomes apparent that that letter was not sent through the mail but was prepared by Mr. Theilman himself. He sent his secretary out to get newspapers and scissors and prepared those letters.

“Why did he do it?

“He did it because he was engaged in a fight for control of one of his companies. His former wife, Carlotta Theilman, had the controlling interest in that stock. Theilman wanted it and other people wanted it.

“Carlotta Theilman was still in love with her husband. She felt that his affections had been stolen by an attractive young woman who had made it her business to be attractive and to cultivate her physical charms.

“So what did Carlotta Theilman do? She took herself in hand. She started dieting. She took off forty or fifty pounds. She regained much of her lost beauty. She wanted her husband to see her in her new personality. You can’t blame her for that. She wanted revenge on the woman who had stolen her husband. That’s human nature. You can only sympathize with her for that.

“In the meantime her husband wanted her stock. He felt that she wouldn’t sell it to him if he approached her directly and so he used a dummy. He instructed that dummy to give a fictitious name.

“What fictitious name would the dummy naturally give? He would give whatever name Mr. Theilman had told him he wanted on the stock ledger.

“And what name did Theilman want on the stock ledger?

“He wanted to put the stock in his wife’s name. His wife’s maiden name had been Agnes Bernice Vidal; so he had a dummy telephone his former wife. This dummy was instructed to give his name as A. B. Vidal and to offer Carlotta a cash deal for her stock.

“Why did Theilman want it to be a cash deal?

“Because he didn’t want the mysterious opponent to know what he was doing. He wanted to have this person left in the dark as to the identity of A. B. Vidal.

“When Theilman realized that he had withdrawn so much money that it might attract suspicion, he sent his secretary down to get some newspapers and from the newspapers he clipped out a threatening message — apparently a blackmail message. Then he was careful to tear that message and put it in the wastebasket where his secretary would be sure to see it and, later on, if there should be any question of the cash withdrawals, any person spying on Theilman’s operations would think the cash had been withdrawn to pay a blackmailer, A. B. Vidal. It would never occur to such a spy that A. B. Vidal was Mr. Theilman’s wife and therefore his alter ego.

“However, he was afraid that his secretary might be too ethical to prowl in the wastebaskets so he sent her back down for another set of papers, prepared another message, folded it and put it in his inside coat pocket.

“Then he sent his secretary down to put a suitcase full of money in a locker and to send the key to A. B. Vidal at General Delivery. However, Theilman had a duplicate key to that locker and as soon as his secretary had deposited the suitcase he opened the locker and took out the suitcase. He then had the money necessary to pay Carlotta Theilman in cash for the stock. He wanted to have his dummy, A. B. Vidal, do that, but Mrs. Carlotta Theilman had other ideas. She wanted to sell that stock to Morley Theilman personally so that Morley Theilman could see her new radiant beauty, her svelte figure. That was what any one of you women on the jury would have done. You would have planned an opportunity to revenge yourself on the vampire who had broken up your home.

“The twenty-dollar bill that the cabdriver had was one that he got from Mrs. Carlotta Theilman. She got it from the man who gave the name of A. B. Vidal, the man who was acting as a dummy for her ex-husband, Morley Theilman.

“Now then, we come to the question of the murder.

“If you will note all of the evidence concerning that murder, all of the evidence which implicates the defendant, you will find that it hinges entirely upon one thing: The defendant made a statement to the officers in which she said Morley Theilman had telephoned her, giving her instructions to go to Las Vegas; that the telephone call had been received a little before nine o’clock on the morning of the fourth.

“The theory of the prosecution is that Theilman was dead at that time.

“How do they fix the time of death?

“By rigor mortis which means nothing and post-mortem lividity which means even less.

“The only reason they fix the time of death at that time is because a thundershower was supposed to have moistened the soil, and the tracks of the defendant’s automobile were in that soil.

“Now then, there are photographs in evidence in this case — photographs of the place where the body was found. I ask you to look at those photographs. You will note that this was a real estate development which had gone into disrepair. Evidently there was a lawn in front of the building at one time, the little real estate office where the body was found.

“The theory of the prosecution was that the defendant and the decedent had an amorous interlude at that house; that she killed him and left after the thundershower. The only evidence that she was there is due to the fact that her automobile left tracks through that soft ground, going in one direction.

“The evidence shows that immediately after talking with Mr. Theilman on the fourth, the defendant went to a beauty shop and was there for some five hours. Her car had been parked near her apartment, which was also near the beauty parlor. It was only necessary for someone to take this car, drive it up to the real estate office where that person had arranged to meet Mr. Theilman, shoot him, and then return the defendant’s car to its parking place at the beauty parlor.

“All this murderer needed to do to frame a case against the defendant and to confuse the time of death was to see that the ground was softened in front of the real estate office.

“And how did the murderer do that?

“Notice this photograph, ladies and gentlemen.”

Mason walked over to the clerk’s table, picked up one of the photographs that had been introduced in evidence and returned to face the jury.

“You will notice that there is a hose, neatly coiled, attached to the faucet in front of this house. All anyone needed to do was to drive the defendant’s car up to this house, sprinkle the soil with water from the hose until the soil became muddy, then coil up the hose, drive the defendant’s car through the soft ground, and every bit of circumstantial evidence that has been introduced in this case would be accounted for, and every bit of it would, in the opinion of the murderer, point to the defendant.

“That, ladies and gentlemen of the jury, is a reasonable hypothesis. I think you will agree with me that it is reasonable.

“The Court is going to instruct you that if there is any reasonable explanation of the circumstantial evidence in this case which is consistent with the innocence of the defendant, you are duty bound under your oath to accept that explanation and acquit the defendant.

“Thank you, ladies and gentlemen of the jury. We shall expect a verdict of acquittal at your hands.”

Mason turned, walked back and sat down.

“Proceed, Mr. District Attorney,” Judge Seymour said.

Hamilton Burger got to his feet. “Why, Your Honor, we’re not prepared. We— Why, we anticipated counsel’s argument would take all afternoon.”

“Well, counsel’s argument didn’t take all afternoon,” Judge Seymour said. “You may proceed with your argument now.”

Hamilton Burger engaged in a whispered conference, then lumbered forward. “This is all poppycock, ladies and gentlemen,” he said. “This is the sheerest nonsense. The defendant in this case, a shrewd, scheming woman, arranged to fake blackmail letters in the name of A. B. Vidal.

“Heaven knows what it was she had on Morley Theilman but it was something that made him get money.

“I want you to see her as I see her — a shrewd, scheming, hypocritical young woman, at times disguising her beauty beneath a mask of ugliness and frumpiness; then at times emerging as a radiant beauty to have an affair with her employer.

“And this theory of the defendant’s about that hose — why, that’s preposterous. That— Why, that’s an abandoned real estate office! That water was shut off when the real estate firm went into bankruptcy. It hasn’t been turned on for months. It—”

“Just a moment, Your Honor,” Perry Mason said. “I assign the remarks of the district attorney as prejudicial misconduct, as stating facts which are not in evidence and facts which are so prejudicial that they cannot be removed by even an admonition of the Court. I ask the Court to declare a mistrial in this case.”

Judge Seymour said, “Mr. District Attorney, is there any evidence in this case, any evidence whatever, about that water being shut off?”

“No, Your Honor, we intended to put it in evidence. It would have been part of our rebuttal.”

“And, Your Honor,” Mason said, “since he couldn’t get it in evidence legitimately, he has deliberately committed misconduct. This is a flagrant instance of deliberate misconduct.”

“I think it is,” Judge Seymour said. “The jury will disregard the remarks of the district attorney; in fact, I... I doubt that the misconduct can be cured by an admonition of the Court.

“Mr. District Attorney, this is very prejudicial misconduct.”

Hamilton Burger said angrily, “Your Honor, I wasn’t going to sit here and let the defense attorney bamboozle the jury into believing that this whole case hinged upon some murderer sprinkling water over the ground in front of that real estate office when there wasn’t any water to sprinkle. It’s preposterous! Simply on the strength of that hose—”

Judge Seymour interrupted, “If you had wanted to argue to the jury that there was no proof that there was water in the pipes, you could have done so with perfect propriety, but you have gone farther and made a positive statement that the water was shut off.”

“Well, it was shut off!” Hamilton Burger snapped.

“That does it,” Judge Seymour said. “The Court is going to grant a mistrial in this case. Ladies and gentlemen of the jury, the Court regrets very much that this situation has arisen. But it has arisen. The district attorney has been guilty of flagrant misconduct, and I agree with the defense that the prejudicial effect in your minds cannot be removed by any admonition of the Court.

“In other words, the state of the record is now such that in the event you should find the defendant guilty of this crime and an appeal should be taken to the Supreme Court, there is no doubt whatever in my mind that the Supreme Court would reverse the conviction on the ground of the misconduct on the part of the district attorney. In fact, it wouldn’t need to go that far because this Court would unhesitatingly grant a new trial on the strength of that misconduct.

“You may be seated, Mr. District Attorney.”

Hamilton Burger, his face white, his lips quivering with rage, walked over to the counsel table. For a moment he appeared to be about to say something. Then he lowered himself slowly into his chair.

Perry Mason said, “May I be permitted to make one statement to the Court?”

“It depends upon what the statement is,” Judge Seymour said, his manner plainly showing his judicial anger.

“I agree with the Court,” Mason said, “that the misconduct cannot be cured by an admonition of the Court but, rather than have a mistrial, I will stipulate that the case can be reopened so that evidence may be received by calling competent witnesses as to whether or not it was possible for the murderer to have watered the ground through that hose. If the water actually was shut off, I have no desire to take advantage of a situation of that sort. And if the evidence so shows, we will again submit the case. I will again make my argument and the prosecution can make an argument in reply.”

“I’m not going to do any such thing,” Hamilton Burger said.

“You refuse such stipulation?” Judge Seymour asked.

“I do.”

“Under those circumstances,” Judge Seymour said, “the Court has no alternative but to declare a mistrial in the case.”

“Well now, wait a minute, wait a minute,” Hamilton Burger said, “maybe I’d better confer with my deputy about this. If I may have the indulgence of the Court...”

Hamilton Burger, so angry that his face was white, his lips quivering, leaned over to Ruskin and engaged in a whispered conference.

Ruskin argued vehemently in excited whispers.

Hamilton Burger, too angry to listen, glared around the courtroom, then finally reluctantly nodded his head.

“Very well, Your Honor,” he said, “we will accept defendant’s stipulation. We will, of course, have to have a little time within which to subpoena the records of the water company. I happen to know that... well, I won’t state what I know. But I can assure the Court that by three-thirty we can have the records of the water company showing that the water had been shut off for more than a year.”

“Very well, if there is no objection on the part of the defense, the case will be continued until three-thirty when it will be reopened in accordance with the stipulation of the parties for the specific purpose of putting on evidence concerning the water. That is satisfactory to you, Mr. Mason?”

“It is satisfactory to me,” Mason said.

“And to the prosecution?” Judge Seymour asked.

“Yes, Your Honor.”

“Very well. The court will recess until three-thirty.”

As the courtroom cleared, Paul Drake came forward, frowning.

“What the devil did you do that for, Perry?”

“Do what?” Mason asked, his manner indicating surprise.

“Let Burger off the hook. The judge was granting a mistrial.”

“Sure he was. Then Janice would have remained locked up in jail and would have been tried again and perhaps convicted. I am now about to get her acquitted.”

“You are! How?”

Mason said, “Ever since I saw that photograph showing the coiled hose, I hoped I could get the prosecution to walk into this trap. Now they’re going to try to show the water had been shut off for months.”

“And as soon as they do it, your theory of the murderer sprinkling the ground with a hose goes out the window,” Drake said.

Mason grinned. “And that leaves Hamilton Burger with the job of trying to convince this jury that a man with the wealth of Morley Theilman would pick a place to spend the night with his secretary where there was no water in the bathroom, no water in the faucets!

“Stick around, Paul. You’re going to see something.”

Paul Drake pursed his lips. “I’ll be damned,” he said slowly.