"And all of a sudden, I realized it was time for that ten o'clock news I like to listen to on TV. I was just starting to go in the house to turn on the TV when I heard this shot."
"Did you turn on the television?"
"Sure did. Seems to me I missed the first couple of minutes of it. Remember I was mad that I turned it on in the middle of a commercial."
Mason said, "Your testimony may be very valuable, Mr. Holbrook. There was just the one shot?"
"Just the one shot. That's why I figured it wasn't a backfire. Usually you get a backfire and there'll be an interval of a second or two and then two or three more backfires, and then an interval and maybe one big backfire-something like that. This was just the one single explosion."
Mason said, "I'm going to ask you to come to court as a witness. Do you have any objection?"
"Well, I don't Want to get mixed up in things," Holbrook said. "But I don't want to be a party to an injustice."
Mason glanced at Paul Drake. "Would your wife's sister get a kick out of seeing your picture in the paper?"
Holbrook grinned. "Now, I'll say she would! She's a good sport. If she thought that there'd been a murder committed out there and she just missed it- Well, she'd get a kick out of it, but…" And here the smile left Holbrook's face. "I'm not so sure about Doris."
"That's your wife?" Mason asked.
"That's my wife, for better or worse. She's it."
Holbrook was thoughtful for a moment, then went on. "She's awful nice. Good housekeeper; mighty neat and considerate-can't say that I complain, but she isn't like Edith."
"Edith is the sister?" Mason asked.
"Edith is the sister."
"You drove to the airport to meet your wife's sister?"
"That's right."
"How far do you live from the airport?"
"Takes us twenty-five minutes."
"And she arrived on the ten-fifty plane?"
"That's right."
"Then you could have hardly listened to the ten o'clock news that night," Mason said.
A sudden frown creased Holbrook's forehead. "Now, wait a minute. Wait a minute," he said. "Oh yes, the plane was a little late. I remember we called up about ten o'clock. They said the plane would be fifteen minutes late. I'm pretty sure I watched both the nine o'clock and the ten o'clock news that night."
"You're sure about the nine o'clock news?"
"That's right. I was mad because I missed the first minute or two of the nine o'clock news, so I turned the set on again at ten."
Mason said to Della Street, "I think we're going to have to rely on Mr. Holbrook as a witness, Della."
Della Street nodded, handed Mason the subpoena.
Mason said, "Just to make it formal, Mr. Holbrook, I'm giving you a subpoena. This is made out for ten o'clock tomorrow morning. If you'll just be in court at ten o'clock, I don't think we're going to detain you very long because I think the prosecution is about ready to rest its case."
"Well, whatever's right is right," Holbrook said. "I just thought you ought to know about it. I called the office and they said you were in court but the Drake Detective Agency was investigating anything in connection with the case, so I told my story down there at the agency. That was right?"
"That was right," Mason said.
"Well, I was awfully glad to meet you people. I guess I didn't get your name, young lady."
"Della Street," she said, "Mr. Mason's confidential secretary, and have been for many years."
"I figured as much," Holbrook said, putting forth a big bony paw. "Even if you look young, you seem to know what's what. Pleased to meet you, Miss Street."
Then Holbrook solemnly shook hands with Mason and with Paul Drake. Della Street held the door open and Holbrook walked out.
Mason waited until the door had clicked shut; then he executed a little jig, grabbed Della Street around the waist, whirled her into a few steps of a dance, then released her to grab Paul Drake's hand and pump it up and down.
"Saved by the bell!" he said.
"You think that'll do it?" Drake asked.
"That'll do it," Mason said. "That's going to create a reasonable doubt."
"Suppose the prosecution comes up with someone who swears the shot was later?"
Mason grinned and said, "I'll then claim there were two shots, and the prosecution can't prove which shot was the fatal shot from the standpoint of time."
"It'll create a reasonable doubt?" Drake asked.
"It'll do better than that," Mason said. "It'll probably result in a verdict of acquittal on the theory that Dutton is telling the truth and Palmer was dead when he got there. Dutton just walked into a trap."
"It still would have been a lot better if he hadn't taken that gun and hidden it," Drake said.
Mason's face lost its smile. "Are you telling me?" he said. "I'm going to have to do quite a bit of arguing to get around that, but I'm going to make it appear that when he saw that gun, he naturally thought the woman he loved was involved."
"Desere Ellis?"
Mason nodded.
"Going to let him say that he's in love with her on the witness stand?" Drake asked.
Mason shook his head. "Heavens, no, I'm not going to let him say it. I'm going to let him try to keep from saying it; and then when the district attorney takes him on cross-examination, it's all going to come out and come out reluctantly. We'll have a romantic and dramatic scene in the courtroom."
"And, I take it," Drake said, "no defense attorney ever got an unjust verdict when there was a romantic and a dramatic scene in a courtroom?"
"Not one involving heartthrobs," Mason said, "and this is going to involve heartthrobs, orange blossoms, wedding bells and what have you.
"Come on, we're closing up the shop and I'm going to buy you folks the best dinner to be had anywhere in the city-a dinner with all the frills, including ice-cold vintage champagne."
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."
The Case of the Troubled Trustee pm-78 Page 12