The Case of the Troubled Trustee

Chapter Eighteen

The next morning as Judge Alvarado took his place on the bench and looked over the courtroom, it was quite apparent that the prosecution was discussing strategy on a matter which they considered to be of considerable importance.

Bailey and Hamilton Burger had their heads together in a whispered conference, as soon as the bailiff had rapped his gavel and Judge Alvarado had seated himself on the bench.

"The case of People versus Kerry Dutton," Judge Alvarado said. "The defendant is in court; the jurors are all present. It is so stipulated, gentlemen?"

"So stipulated," Perry Mason said.

"Yes, Your Honor," Hamilton Burger said. "It is so stipulated. May we have just a moment?"

Again there was a whispered conference; then Burger nodded his head somewhat reluctantly, apparently.

Immediately Bailey jumped to his feet. "If the Court please, that concludes the evidence of the prosecution. We rest our case."

A murmur of surprise ran through the spectators in the courtroom.

Judge Alvarado frowned. "It would have been perhaps fairer to the defense if the decision had been announced at the close of the courtroom session yesterday."

"We didn't know it at that time. We have just this minute reached our decision," Bailey said.

"Very well," Judge Alvarado said. "I will, however, be willing to grant the defense a reasonable recess so that it may meet this somewhat unexpected development."

"If the Court please," Mason said, arising and smiling at the jury, "the defense is not only willing but eager to proceed immediately."

"Very well," Judge Alvarado said. "Go ahead."

"And we do not wish to make an opening statement at this time," Mason said. "Our first witness is Desere Ellis."

"Come forward to the stand, Miss Ellis," Judge Alvarado said. "You have already been sworn and so it is not necessary for you to take an oath once more."

Desere Ellis came forward. This time she met the defendant's eyes with a quick flicker of a smile; then seated herself on the witness stand and turned to face Perry Mason.

"You are, of course, acquainted with the defendant and have known him for some time?" Mason asked.

"Yes."

"Did the defendant ever give you a gun?"

"He loaned me a gun, yes."

Mason said, "I show you the People's Exhibit A-G, a Smith and Wesson snub-nosed, thirty-eight-caliber revolver, number K524967, and ask you whether or not you have ever seen this gun before?"

"That is the gun that he gave me."

"Did he make any statement to you when he gave you the gun?"

"Yes. There had been some rather offensive telephone calls from a person who did not disclose his name and I was a little apprehensive."

"Now, was there any conversation specifically about the ownership of this gun which took place when it was handed to you?"

"Objected to as incompetent, irrelevant, and immaterial and as a self-serving declaration," Bailey said.

"I am simply asking for a conversation which was part of the res gestae of this particular transaction," Mason said. "It is a part of the transaction itself and it took place far in advance of this murder."

"That doesn't keep it from being a self-serving declaration, nor does it make it competent or relevant to the case at bar," Bailey said.

"I think I'll overrule the objection," Judge Alvarado said. "It is always my policy to give the defendant as much leeway as possible in cases of this sort. Answer the question."

"Yes," Desere Ellis said, "he said that it was his gun, one he had bought some time ago but had no use for."

"Did he show you anything about using it?"

"Yes, he took the shells out of it and taught me how to point it and pull the trigger."

"You knew then that it was a double-action revolver?"

"I beg your pardon, I don't understand."

"In other words, by pulling the trigger all the way back, you cock the hammer and then after the hammer has passed a certain point, it comes down on the firing pin so the shell is exploded and at that time the cylinder advances," Mason said. "The effect of this action is such that you can pull the trigger six times and fire six shots."

"Yes."

"What I am getting at," Mason said, "is that this gun he gave you was not an automatic; it was a revolver. In other words, the cylinder rotated."

"Yes."

"And what happened to this gun?" Mason asked.

"I kept it in a drawer in my bedroom, in a nightstand."

"When did you last see it?"

"I last saw it some two or three days before the twenty-first of September."

"Two or three days before the date of the murder?"

"Yes, sir."

"And when did you next look for the gun after that?"

"It was, I believe, either the twenty-third or the twenty-fourth of September."

"And how did you happen to look for it?"

"You asked me about it and I went to get it for you and then found it was gone."

"Cross-examine," Mason said.

Hamilton Burger, who seldom had an opportunity to cross-examine Mason's witnesses, inasmuch as Mason usually made a practice of winning his cases before the prosecution rested and by bringing out his defense from the prosecution's own witnesses, seized upon the opportunity with the eager avidity of a bird pouncing upon a hapless worm.

"What make was the gun that the defendant gave you?" he asked.

"What make?"

"Yes, who manufactured it? Was it a Colt, a Smith and Wesson, a Harrington and Richardson, a-"

She shook her head. "I don't know the brand, Mr. Burger."

"You don't know the manufacturer's name?"

"No, sir."

"You don't know the serial number?"

"No, sir."

"Yet when Perry Mason held this gun up in front of you and asked if you had seen this Smith and Wesson gun, number K524967 and you said it was the gun the defendant had given you, you were swearing to facts you didn't know. Is that right?"

"I relied upon Mr. Mason. It looked exactly like the gun Mr. Dutton had given me."

"Looked like it," Hamilton Burger sneered. "How many guns have you had in your possession?"

"Just the one."

"You never looked at the number on this gun?"

"No, sir."

"You don't even know where the number is located, do you?"

"No, sir."

"You say it looked like this gun," Hamilton Burger said, holding up the weapon. "People's Exhibit A-G?"

"Yes."

"Exactly like it?"

"As nearly as I can tell, exactly like it."

"Do you know how these weapons are made?"

"What do you mean?"

"You know that they are made by machinery and then assembled?"

"I assume as much."

"And do you know that there are hundreds-thousands-perhaps hundreds of thousands of guns of this exact make and model, guns which look exactly like this?"

"Well, I… I suppose so."

"You didn't notice any distinguishing marks on the gun which the defendant gave you, no scratches of any sort?"

"No, sir."

"So, for all you know, the defendant could have had half a dozen guns and simply handed you any one of these guns, told you that it was his and still been carrying another gun in his pocket?"

"Well, I… I can't identify this specific gun."

"Exactly," Burger said, "all you know is that the defendant gave you a gun. You don't know that he gave you this gun."

"I can't swear to it."

"Then you can't testify to it," Hamilton Burger said. "You're here to swear, not to guess."

The witness was at a loss for any answer.

Hamilton Burger tried a new attack.

"Prior to the disappearance of this gun, had the defendant called on you?"

"He had been at my apartment, yes."

"And while he was there, had he made some excuse to go to the place where you kept this gun? Think carefully now."

"He had a fight with Fred Hedley."

"Where did that fight take place?"

"In my apartment."

"I mean where in your apartment?"

"It wound up in my bedroom."

"In your bedroom!"

"Yes."

"That's where you kept this gun?"

"Yes, sir."

"And the defendant was in there?"

"Yes, sir."

"What was the date of this fight?"

"The twenty-first of September."

"The night of the murder?"

"Yes, sir."

"So on the night of the murder the defendant made an excuse to go to the room where you kept this gun, created a diversion there, then ran out and when next you looked in the bedroom for this gun, it was gone. Is that right?"

"Well, it wasn't-"

"Yes or no, please."

"Well… yes."

"That's all!" Burger announced.

Mason said, "One question on redirect. Who started the fight?"

"Fred Hedley."

"Who ran into the bedroom where you kept the gun?"

"He did."

"Fred Hedley?"

"Yes."

"That's all," Mason said, smiling, "and our next witness will be the defendant, Kerry Dutton."

Mason turned to Dutton. "It's up to you," he whispered. "If you can put it across, you're out, and if you can't, you're convicted."

"I'll put it across," Dutton promised, and strode to the place in front of the witness stand where he held up his hand; was sworn; took the witness chair and turned to face Perry Mason.

Mason led the witness along skillfully, showing his name, his occupation, his acquaintance with the father of Desere Ellis, the death of the father, the provisions of the will by which Dutton became trustee of a so-called spendthrift trust.

"What was the value of the various securities which you received under this trust at the time you received them?"

"Approximately one hundred thousand dollars."

"And the term of the trust under the will was how long?"

"Until the beneficiary, Desere Ellis, became twentyseven years of age."

"And there was a provision in the will that the trust was created because her father believed she was at an impressionable age in life; that she was overly sympathetic, particularly to lost causes, and that he felt she needed to be protected from herself?"

"Yes, sir."

"And did you discuss with Miss Ellis the manner in which you proposed to administer the trust?"

"Yes, sir."

"The first conversation," Mason said, holding up the index finger of his left hand, "let's have the first conversation. What did you tell her?"

"I told her what the income from this money would be; that it wouldn't support her in the rather expensive style to which she had been accustomed; that she would undoubtedly be married prior to the termination of the trust, and that I proposed to give the money to her in such a way that she would have approximately equal monthly installments for four years. That this would enable her to have a good wardrobe, to travel, to keep herself in a position to meet the right sort of people."

"In other words," Mason said, "to exhibit herself favorably on the matrimonial market?"

Dutton frowned. "That wasn't what I said."

"How much have you given her on an average each year during the time the trust has been in effect?"

"Approximately twenty-four thousand dollars."

"What is the value of the money in the trust fund at the present time," Mason asked, "the market value of the securities and the cash on hand?"

"Approximately two hundred and fifty, thousand dollars," Dutton said.

Judge Alvarado leaned forward sharply. "What was that figure?" he asked.

"Approximately two hundred and fifty thousand dollars."

"How does that happen?" Judge Alvarado asked. "You had a trust fund of one hundred thousand dollars. You dispersed ninety-six thousand dollars?"

"Yes, Your Honor, but under the provisions of the trust, I was empowered to make investments, to buy and sell securities and to keep the trust in a healthy condition."

"And you made that much profit?"

"After taxes," Dutton said.

"Well," Judge Alvarado remarked, "you certainly showed remarkable ability."

"Did you," Mason asked, "tell the beneficiary the extent of the trust funds?"

"No."

"Why not?"

"Objected to as incompetent, irrelevant and immaterial," Hamilton Burger said.

"I think I will sustain that objection," Judge Alvarado said. "The answer is that he didn't tell the beneficiary. To your knowledge, did she have any idea of the nature and the extent of the trust fund?"

"No."

"Now then," Mason said, "the trust fund was created so that you could protect her from herself."

"Yes."

"Did you feel that if she knew the exact amount of the trust, that it would tend to defeat the purposes of the trust; that she would extravagantly espouse some lost cause and-"

"Your Honor, Your Honor," Hamilton Burger literally shouted, "this question is viciously leading and suggestive. I object to it. It is incompetent, irrelevant and immaterial."

"Sustained," Judge Alvarado snapped. "Counsel will refrain from this sort of question."

However, the jurors, exchanging astonished glances, showed that the point had registered and made a deep impression on them.

"Now then," Mason said, "did you know and do you know a Fred Hedley?"

"Yes."

"What was his relationship to Desere Ellis?"

"He was described by her on occasion as her fiance."

"Did you approve of him?"

"I did not."

"Why?"

"Objected to as incompetent, irrelevant and immaterial," Burger said.

Judge Alvarado hesitated. "I think," he said, "I am beginning to see a pattern in counsel's questions. A pattern which may well be pertinent to the defense. I am going to overrule the objection. The answer will be limited as to the state of mind of this witness. Further, it will be limited to the actions of the witness in connection with the trust fund."

"Answer the question," Mason said.

"I felt that he was a fortune hunter."

"And was it because of him that you refrained from telling Desere Ellis- Just a minute," Mason said, as he saw Hamilton Burger on his feet, "I'll reframe that question. Did that idea on your part have anything to do with your actions in connection with giving information of the amount of the trust fund? You can answer that yes or no."

"Objected to," Hamilton Burger said.

"Overruled," Judge Alvarado said.

"Yes, it did."

"In connection with the trust fund, did you have securities of a company known as the Steer Ridge Oil and Refining Company?"

"I did."

"Those had been part of the original securities transmitted to you as trustees under the terms of the will?"

"Yes."

"What did you do with those securities?"

"I sold them."

"Did you ever discuss that sale with the beneficiary?"

"No."

"What had she told you about the Steer Ridge stock?"

"She was very much interested in it. She became somewhat excited because they had sent her a brochure telling about the valuable oil properties they had under lease. She knew that her father had been enthusiastic about the stock."

"And did she make any request to you in connection with those securities?"

"She asked me to hang on to them."

"But you disregarded her request?"

"Yes."

"And then what?"

"Well, I sold the securities and… well, after a while I reinvested."

"In those same securities?"

"Yes, in a block of that same stock."

"Why?"

"I had a tip that- Well, I had reason to believe that there might be a proxy fight, and they might turn out to be a good investment if two different factions were going to fight for control of the company."

"How much did you buy?"

"Twenty thousand shares."

"In connection with those securities, did you have any contact with the decedent, Rodger Palmer?"

"I talked with him over the telephone, yes."

"And what was the nature of that conversation?"

"Palmer told me that he had been in touch with Desere Ellis; that he had been trying to get a proxy to vote her shares in the Steer Ridge Oil and Refining Company; that she had referred him to me; that if I would co-operate with him it would be possible for us to greatly enhance the value of the securities held by Miss Ellis or for her benefit."

"Just what did he want in that connection?"

"He said that it would be necessary for us to have a meeting in great secrecy."

"Did you arrange such a meeting?"

"After he told me that if I would see that he had the proxy for twenty thousand shares, and an unsecured loan of five thousand dollars, he would see that Fred Hedley would be placed in such a position that it would be impossible for him to marry Desere Ellis, I told him a meeting might be arranged."

"And what happened?"

"He told me that at a certain time on the evening of September twenty-first, I was to call a certain number; that that would be the number of a pay station; that the person who answered that number would give me another telephone number to call which would be the number of another pay station; that if I would call that number, I would be advised where to go in order to meet him."

"Did you make such a call as the first one?"

"Yes."

"And what were you told?"

"I was given the number of the other pay station, the number which I was to call."

"Was that the decedent, Rodger Palmer, with whom you were talking?"

"I don't know. The voice sounded disguised. It sounded like a man trying to talk in a high-pitched voice. It could even have been a woman. I thought at the time it was a man. Thinking back on it now I am not so sure."

"And you called the next number?"

"Yes."

"And what happened there?"

"A voice told me to go to the seventh tee at the Barclay Country Club, to be there just as soon as I could get there; that there had been some mix-up in time schedule; that the man I was to meet was going to be forced to leave in just a few minutes; that I was to get there at the earliest possible instant."

"Was anything said in any of these conversations about money?"

"Yes, I was to have five thousand dollars with me. If the information that was to be given me was as represented, I was to pay over the five thousand dollars."

"At the time of this telephone conversation, did you have occasion to notice the witness, Tom Fulton, who has previously testified?"

"Yes, sir, I saw him, but, of course, at that time, I had no idea he was taking any personal interest in me. I thought he was simply someone who was in a hurry to use the telephone. He came up to the telephone booth and made some sort of signs to me and I motioned him to go away."

"Subsequently, did you know that he was following you?"

"No, sir."

"You left the phone booth in a hurry and went through some red lights and a boulevard stop?"

"I'm afraid that I was in such a hurry that I violated several sections of the vehicle code."

"And went to the country club?"

"Yes."

"You are a member of that club?"

"Yes."

"Did you know that you had been followed to that club, or followed part of the way?"

"No, sir."

"What did you do?"

"I parked my car, used my key and went in. I looked around for the night watchman but didn't see him. I hurried out on the links."

"You were familiar with the location of the seventh tee?"

"Yes."

"What did you do?"

"I hurried out there and looked around; saw no one, but finally noticed a dark object lying on the ground. I bent over that object and it was the body of this man, Rodger Palmer."

"You knew him at the time?"

"I had not seen him previously. I had talked with him over the telephone. That was all."

"How many times?"

"Several times. First, after he had requested Desere Ellis to give her proxy and she had referred him to me. He had called me and then I had had several conversations with him over the telephone concerning a suggestion that I pay him for this information which he offered to give me."

"What time was it when you got to the Barclay Country Club?"

"It was just a few minutes before ten."

"What did you do after you discovered the body?"

"I looked around- That is, I wanted to make sure he was dead."

"And when you did make sure, then what did you do?"

"I got to my feet. My right foot encountered a hard object. I bent over to find out what it was, and saw that it was a gun."

"And then what did you do?"

"I realized it was my own gun and suddenly became panic-stricken."

"And what did you do?"

"I left the country club. I drove down the road for a short distance, threw the gun under a culvert where I hoped it would never be discovered; went to Ensenada in Mexico and registered at the Siesta del Tarde Auto Court under the name Frank Kerry."

"Frank is one of your names?"

"Yes, my full name is Frank Kerry Dutton."

"You recognized the gun as your own?"

"I thought it was mine, yes."

"And you knew you had given that gun to Desere Ellis?"

"Yes."

"Were you trying to protect Desere Ellis in-"

"Objected to," Hamilton Burger said, "incompetent, irrelevant and immaterial, argumentative, leading and suggestive."

"Sustained," Judge Alvarado said.

"Cross-examine," Mason snapped.

Hamilton Burger, the district attorney, masked his true feelings behind a facade of extreme courtesy as he arose and approached the witness.

"I have a few questions," he said. "Simply for the purpose of clarifying your story in my own mind and for the jury, Mr. Dutton, I take it you have no objections?"

"Certainly not," Dutton said.

It was quite apparent that Hamilton Burger, having been warned by Mason, would make every effort to tear him to pieces, the defendant was agreeably surprised by this attitude on the part of the prosecutor.

"We'll start in with finding the body," Hamilton Burger said. "What time was it that you arrived at the seventh tee? I believe you said it was a minute or two after ten?"

"Yes, sir."

"Well, we should be able to clarify it a little better than that," Burger said. "You were in a hurry?"

"Yes."

"Is there, by any chance, a clock on the dashboard of your automobile?"

"There is."

"Was it accurate on the night in question?"

"I try to keep it accurate, yes, sir."

"Well, now," Burger said, smiling, "from the manner in which you make that statement, I gather that it is a habit of yours to be punctual and to know what time it is?"

"Yes, sir."

"So you keep your clock accurate at all times?"

"I try to, yes."

"Now, having made an appointment for that night and being in a great hurry, you undoubtedly looked at your clock several times while you were driving from the telephone booth to the golf club-you must have."

"I'm quite sure I did," Dutton said, matching the district attorney's affable courtesy.

"Exactly," Hamilton Burger said, his voice low and well modulated, "so you must be able to tell the jury what you mean by a minute or two after ten?"

"I would say that it was one minute before ten when I entered the golf club. I think I arrived there and had parked the car at one minute after ten."

"I see," Hamilton Burger said, "and how long did it take you to get to the seventh tee?"

"I would say about three minutes."

"So you arrived at the seventh tee at exactly four minutes after ten?"

"We could give or take a few seconds, but for practical purposes, right around four minutes after ten."

"So it takes you about three minutes to go from the seventh tee to the clubhouse?"

"Yes."

"Now, you have heard the detective, Tom Fulton, testify that you left the golf club at ten-twenty-two?"

"Yes, sir."

"Did you, by any chance, look at the clock on your automobile when you left?"

"I was rather excited. I didn't look at the clock at that exact moment. No, I remember I did look at it when I stopped the car at the culvert."

"And what time was it then?"

Dutton smiled. "Frankly, I have forgotten, Mr. Burger. The time registered with me but it didn't seem to have any particular significance. I do remember, however, looking at the clock. I think it was right around ten-twenty-five or something like that. I am not sure."

"Why did you glance at the clock?"

"Just a mechanical reflex, I guess."

"I see," Hamilton Burger said. And then suddenly added, "Oh, by the way, had you made up your mind to go to Ensenada at that time?"

"I was thinking of it, yes."

"So," Burger said casually, "you probably were checking the time to figure about how long it would take you to make the trip."

"I could have been, yes."

"Well, that sounds very reasonable," Burger said.

Dutton nodded.

"Now, let's see," Burger went on, "you got to the seventh tee at four minutes past ten. You were expecting to meet Rodger Palmer there, and, of course, expected him to be alive?"

"Yes, sir."

"There was a glow in the sky, that is, you could see the reflection of the lights of the city?"

"Yes, sir, quite a glow."

"Enough light for you to walk by and find your way?"

"Yes, sir."

"Not bright light, but a diffused light such as one would naturally expect on a golf course from the lights of the city reflected by the atmospheric impurities?"

"Yes, sir."

"And if Rodger Palmer had been standing up to meet you when you reached the seventh tee, he would have stood silhouetted against the skyline?"

"Yes, sir."

"Then you must have suspected something was wrong almost immediately on reaching the seventh tee and failing to see him?"

"I think I did. I think that's what started me looking around."

"Looking around?"

"Yes."

"What do you mean by looking around?"

"Well, taking a few steps; looking on the ground."

"Looking on the ground?" Hamilton Burger said, his voice suddenly changing. "So, you began looking for the man you were to meet on the ground?"

"Well, I was looking around. He wasn't standing up. He had to be someplace if he was there."

"I see," Hamilton Burger said, "so within a few seconds of the time you arrived at the seventh tee you began looking for him on the ground?"

"I didn't say within a few seconds."

"No, you didn't," Hamilton Burger said, "but it follows as a necessary inference. You expected him to meet you. You looked around; you didn't see him outlined against the lights of the horizon. So you started looking around. Now, it didn't take you over two or three seconds to ascertain that he wasn't standing up silhouetted against the horizon. Isn't that right?"

"Yes, sir."

"So then, right away, you began looking around- You'll pardon me, Mr. Dutton, I want to be fair with you. I want to see that the jury understands your story, that's all. It was within a few seconds, wasn't it?"

"Yes, I guess it was."

"So, you were then looking on the ground at least by five minutes after ten?"

"I guess I must have been, yes."

"And as soon as you looked on the ground, you discovered the body?"

"Well, not right away."

"But within a matter of seconds, eight or ten seconds?"

"I don't know that it was eight or ten seconds."

"Well, let's time it," Hamilton Burger said. "Just get up from the witness stand, if you will, and start walking around in a circle. I'll consult my watch and let you know when ten seconds are up."

The witness got up from the stand and started walking.

He made a circle, then another circle.

"That's ten seconds," Hamilton Burger said. "Now then, considering your starting place as being at the seventh tee, would the body have been within that circle?"

"Well perhaps a little wider circle."

"Then, perhaps it was twenty seconds after you started looking around that you found him?"

"I would say so. Perhaps even as much as thirty seconds."

"Thirty seconds would be the extreme limit?"

"I would say so, yes, sir."

"All right, then, within that circle that you made in thirty seconds, your foot struck against something?"

"Well, I saw something dark and prodded it with my foot."

"And found it was a body?"

"Yes, sir."

"And immediately dropped to your knees?"

"Yes, sir."

"Now then," Hamilton Burger said, "that was within thirty seconds. Let's say that you dropped to your knees- Oh, let's give you plenty of time, Mr. Dutton. Let's say that by six minutes past ten you had dropped to your knees by the side of the body."

"Yes, sir."

"That seems fair to you?"

"I think it is very fair."

"And you ascertained at once the man was dead?"

"Well, within a few seconds."

"Ten seconds again, Mr. Dutton?"

"I would say so, yes. Well within ten seconds."

"Now then," Hamilton Burger said, "you ascertained the man was dead and then what?"

"Well, I was just going to run and call the police when my foot struck against something heavy and I reached down and saw it was this gun."

"And then what did you do?"

"I recognized the gun as mine."

"You were sure it was yours?"

"I felt certain it was."

"So then what?"

"Then I suddenly realized I was in a peculiar position.

"One would certainly say so," Hamilton Burger said. "In fact, that's the understatement of the week. You were in a most peculiar position."

"Yes, sir."

"So you wanted to stop and take a while to think it over?"

"Yes, sir."

"Now, eventually you reached a decision and decided to leave the golf club without reporting the fact that you had found the body to the police?"

"Yes, sir."

"Once you reached that decision, you hurried from the seventh tee, out through the club house, crossed to where your car was parked, jumped in and drove away?"

"Yes, sir."

"Now then, we have that time fixed," Hamilton Burger said. "That was ten-twenty-two. Now, by ten-o-six you had found the body and found the gun; that left you with an interval of over fifteen minutes, Mr. Dutton."

"Well, I didn't think it was that long."

"The indisputable evidence shows that it was that long, Mr. Dutton. An interval of fifteen minutes, during which time you were sitting by the corpse, holding that gun."

"It couldn't have been that long."

"What else were you doing?" Burger asked.

"I- Nothing else."

"Fifteen minutes," Hamilton Burger said. "A quarter of an hour. What were you trying to do, Mr. Dutton?"

"I was trying to clarify the situation."

"Were you, perhaps, concealing any evidence?"

"Certainly not. I wouldn't do that."

"But you knew the gun was evidence?"

"I assumed it was."

"And you concealed that."

"I took it with me."

"And concealed it in a culvert?"

"Yes, sir."

"So then you did conceal evidence?"

"Well, yes."

"Then there's no need in assuming a self-righteous attitude in front of this jury," Hamilton Burger said, "that you wouldn't conceal evidence. So, I'm going to ask you again, what you were doing during those fifteen long minutes, during that quarter of an hour that you sat there in the dark by the corpse?"

"I don't know. I was trying to adjust myself."

"Now, you could see the sky. That was rather well lighted?"

"Yes, the horizon was lighted."

"But the ground was dark?"

"Well, not too dark."

"But dark enough so that you didn't see the body immediately?"

"I saw something dark."

"But you have just told us that it took from twenty to thirty seconds; in your own words, you were walking around for perhaps thirty seconds."

"Well, it wasn't that long. It was- I'll go back to my original statement that it was eight or ten seconds."

"Then you want to change your testimony that it was not thirty seconds?"

"I think the thirty seconds was an estimate of time that you placed on it. 1 said it was longer than ten seconds; that it might have been twenty seconds and you said you would give me thirty seconds to be sure and be fair."

"Yes, yes," Hamilton Burger said, "then your own estimate was twenty seconds?"

"Yes, sir."

"But now you say you think it was less than ten seconds"

"Well, after all, I didn't carry a stopwatch."

"That's right," Hamilton Burger said, "you didn't carry a stopwatch but you did testify to this jury under oath that you thought it was longer than ten seconds; that it might have been twenty seconds."

"Well, yes."

"Now you insist that it was under ten seconds."

"I think it could have been."

"Which was right?" Hamilton Burger asked, his voice taking on an edge, "ten seconds or twenty seconds?"

"I would say nearer ten seconds."

"Now, you picked up this gun?"

"Yes."

"And thought it was yours?"

"Yes."

"What made you think so?"

"Well, I saw it was a Smith and Wesson revolver of exactly the same type I had purchased."

"You saw it was a Smith and Wesson revolver?"

"Yes, sir."

"How could you do that if it was so dark you couldn't see the corpse for a matter of ten or twenty seconds? How in the world could you tell the make of the gun?"

"I had a small pocket flashlight."

"You what?" Hamilton Burger exclaimed, as though the defendant had just admitted to murder.

"I had a small pocket flashlight."

"Well, why in the world didn't you tell us about that?"

"Nobody asked me."

"Oh, you had a pocket flashlight with you and you didn't tell us about it because no one asked you."

"That's right."

"Do you have any other incriminating admissions to make that you have hitherto withheld because nobody has asked you?"

"I don't consider that an incriminating admission."

"You don't!" Hamilton Burger said. "You now admit you had a flashlight, why didn't you use that flashlight when you were looking around?"

"Well, it was in my pocket."

"And you were too lazy to take it out of your pocket?"

"Not too lazy. I saw no need for it."

"But you started searching the ground?"

"Yes."

"For an interval of at least ten seconds?"

"Perhaps that."

"And it never occurred to you to get out the flashlight?"

"Not then."

"Did you subsequently illuminate the body with your flashlight?"

"No."

"Why not?"

"I was only trying to ascertain whether he was dead."

"Well, well, well," Hamilton Burger said, "you had a flashlight and you weren't sufficiently interested to look at the man's features to see if you knew him?"

"I had never met Rodger Palmer. I had talked with him over the telephone."

"So you assumed the body was that of Rodger Palmer?"

"Yes."

"That was only an assumption on your part?"

"Yes."

"It could have been anyone else?"

"Well, it could have been."

"You weren't curious enough to look with a flashlight?"

"No."

"In other words, you knew the identity of the body, didn't you, Mr. Dutton?"

"No, sir. I tell you I didn't. I only assumed it."

"But as soon as you found the gun, you looked at it with a flashlight?"

"Yes."

"To make sure it was a Smith and Wesson revolver?"

"Yes."

"Did you check the numbers on the gun?"

"I believe I did."

"And noticed that one shell had been fired?"

"Yes."

"And you then realized that you had left fingerprints all over the gun?"

"Yes."

"What did you do about those?"

"I took my handkerchief and wiped the gun thoroughly."

"Oh!" Hamilton Burger said. "You took your handkerchief and wiped the gun thoroughly?"

"Yes, sir."

"Thereby wiping off, not only your own fingerprints, but those of anyone else?"

"Yes, sir, I suppose so."

"And yet you have just assured us that you wouldn't do anything to conceal evidence, oh, no, not you! Why in the world did you wipe the fingerprints of the murderer off that gun?"

"I wanted to remove my own fingerprints."

"Why?"

"I was afraid-I was afraid that it was my gun and I might be connected with the murder."

"So, you had a guilty feeling that you might have been connected with the murder at least as early as six or seven minutes after ten o'clock that night?"

"Well, how would you feel if your gun had been there?"

"How would I feel?" Hamilton Burger said, drawing himself up to his full height. "I would feel that I was a law-abiding citizen and wanted the protection of the police immediately. I would have taken every possible step to have preserved the fingerprints of the murderer on that gun. I would have dashed to the nearest telephone. I would have called the police. I would have said, 'I think this is my gun. I think my fingerprints are on it, but the fingerprints of the murderer should also be on it.' I certainly wouldn't have taken a handkerchief and scrubbed the murderer's fingerprints off the gun, nor would I have stopped at a culvert and thrown the gun under a culvert, nor would I have- But, come, come, I digress, Mr. Dutton, you asked me a question and I answered it. I shouldn't have. I should be the one asking you questions. Now, after you had rubbed the fingerprints off that gun, what did you do?"

"I hurried off the golf course and got in my car."

"No, you didn't," Hamilton Burger said. "Your testimony shows that you waited another fourteen minutes. What were you doing during that fourteen minutes?"

"Well, I was rubbing the gun for one thing."

"Polishing it like mad, I suppose?"

"I polished it vigorously."

"You breathed your breath on it so that the moisture in your breath would condense on the metal and help eliminate the prints?"

"I believe I did blow on it, yes."

"Well, well," Hamilton Burger said, "and all this from a man who wouldn't presume to conceal evidence!"

Hamilton Burger shook his head as though bewildered at such depravity on the part of any human being, turned and started back to his chair. Then, as though actuated by some afterthought, turned back to the witness. "Well, let's ask you a few questions about the trust, Mr. Dutton. You say there was some hundred thousand dollars in the trust when you received it, and, after paying out a hundred thousand, there is approximately two hundred and fifty thousand left?"

"Yes, sir."

"And the Steer Ridge Oil Company stock, you sold that?"

"Yes."

"But the reason you were meeting with this man, Rodger Palmer, was to discuss making a deal with him in connection with Steer Ridge Oil Company proxies?"

"Yes, sir."

"I don't understand," Hamilton Burger said. "You had sold the Steer Ridge Oil Company stock?"

"Well, I had some other stock."

"Other stock, Mr. Dutton?"

"Yes."

"Other Steer Ridge Oil Company stock?"

"Yes."

"Well, well, tell us about that, by all means," Burger said.

"I had some stock that I had purchased myself."

"When did you purchase that?"

"The first batch was several weeks earlier, then I increased my holdings to the original amount only a few days before the strike."

"And had been holding this stock?"

"Yes."

"You sold the stock which the trust fund held in the Steer Ridge Oil Company?"

"Yes, sir. I sold that stock."

"Why?"

"Well, I thought it was highly speculative. I didn't think it was a good investment for the trust."

"But it wasn't too highly speculative to be an investment for you, yourself, as an individual?"

"I could afford to take a chance."

"I see," Burger said. "Now, with reference to the sale of the stock from the trust fund, did you sell yourself the stock from the trust fund?"

"I got my stock later and I paid the market price for it."

"But it has gone up in value?"

"Yes."

"How much has it gone up in value?"

"Quite a bit."

"What price did you credit the trust fund from the sale of that Steer Ridge stock?"

"Around ten thousand dollars."

"And what is that stock worth now?"

"Two hundred thousand."

"So you made a hundred and ninety thousand dollars' profit out of betraying the interests of the beneficiary?"

"I did nothing of the kind."

"You sold the stock from the trust fund and bought shares of that same stock yourself?"

"Yes-when I felt a proxy fight was on."

"And that stock is now worth many times what you paid for it?"

"Yes."

"And how did you justify that action as trustee, Mr. Dutton?"

"I felt the stock was highly speculative. I didn't buy it because I wanted it, but to protect the trust fund."

"And just how would you protect the trust fund by buying the stock in your own name?"

"I felt that I could give it back in the event the stock went up."

"Oh, I see," Hamilton Burger said, "you were buying the stock. If the stock went down you intended to absorb the loss. If the stock went up you intended to turn over the profit to the trust?"

"Well, something like that."

"Something like that!" Hamilton Burger repeated sarcastically. "Now, have you turned this stock back to the trust?"

"Yes."

"And it is because of turning this stock back to the trust that the trust now is worth two hundred and fifty thousand dollars?"

"That accounts for still further profits."

"Well, this certainly seems like financial jugglery to me," Hamilton Burger said. "Perhaps you can explain it a little better, because, after all, I'm not a financier. I believe you are a professional financial counselor, Mr. Dutton?"

"Yes, sir. I represent several clients."

"And with these other clients, do you surreptitiously sell the profitable stock to yourself?"

"These other clients are on a different basis."

"I see. They're on a basis where they ask, from time to time, for an accounting. By the way, how many accountings have you ever made to Miss Ellis?"

"I have made none."

"When did you tell her about selling the stock of the Steer Ridge Oil Company?"

"I didn't tell her."

"You didn't tell her?"

"No."

"I believe you said she asked you to hang on to that stock?"

"She wanted me to, yes."

"You didn't tell her that you had sold it?"

"No, sir."

"You didn't tell her that you had sold it to yourself?"

"No, sir."

"Nor that you were making a handsome profit on it?"

"No, sir, and the stock I purchased was not the trust stock."

"Now, you say you conveyed that stock back to the trust fund?"

"Yes."

"If this wasn't trust fund stock, why did you convey it back to the trust fund? Was it conscience money?"

"No, sir."

"Then, if it wasn't trust fund stock, why give it back? And if it was trust fund stock, why juggle it out of the trust and into your name?"

"I can't answer that question any better than I have."

"When did you transfer this stock to the trust fund with reference to the date of September twenty-first, about what time?"

"It was right around that time."

"Right around that time?" Hamilton Burger repeated. "How interesting! In other words, it was right around the time that this man, Rodger Palmer, started telephoning you that you transferred the stock back to the trust fund?"

"His telephone calls had nothing to do with my actions."

"Well, what else had happened at about that time?" Burger asked. "Had you, by any chance, consulted an attorney at about that time?"

The witness hesitated.

"Had you?" Hamilton Burger snapped. "Yes or no. Had you consulted an attorney at about that time?"

"Yes."

"And did you tell the attorney that you had embezzled the stock held by the trust fund?"

"I told him that I had sold certain stocks from the trust fund, stocks that I felt were going down in value."

"So you bought those same stocks?"

"The Steer Ridge shares, yes, sir."

"Are you accustomed to buying stocks that you think are going down in value?"

"I sometimes take a chance."

"You buy the stocks you think are going down in value?"

"I mean I sometimes buy speculative stocks."

"But when you buy a speculative stock, you think it is going up in value?"

"I hope so."

"So, when you bought this Steer Ridge stock you thought it was going up in value?"

"Well, I knew there was a possibility."

"Yet, as trustee, knowing that the stock was one which the beneficiary wanted you to hold; knowing that it stood a good chance of going up in value, you sold it from the trust?"

"I thought that was the best thing to do."

"The best thing for whom? For the beneficiary, or yourself?"

"For the beneficiary."

"So, later on you bought an equal amount yourself," Hamilton Burger said, musingly, "and you turned it back into the trust fund just a short time before the murder, on the advice of an attorney, and you never told the beneficiary anything about what you had done and you never made an accounting in the trust. Well, well, I'm glad I cross-examined you, Mr. Dutton, because otherwise these matters wouldn't have come out and I think the jury is interested in them. You didn't intend to tell the jurors about all this, did you?"

"I wasn't asked."

"You mean, on your direct examination, your attorney carefully avoided asking you these questions?"

"Objected to as argumentative," Perry Mason said.

"Sustained," Judge Alvarado promptly ruled.

Hamilton Burger grinned broadly at the jurors. "That concludes my cross-examination," he said, and walked back to the counsel table with the triumphant air of a man who has at last gratified a lifelong ambition.