"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.
Chapter Nineteen
"Call Mr. Holbrook," Mason said.
George Holbrook-tall, gangling, his weather-beaten face and somewhat shambling gait claiming the attention of the jurors-took the oath and assumed his position on the witness stand.
"Do you have occasion to remember the evening of September twenty-first of this year?" Mason asked.
"I sure do."
"There was something that happened on that evening which made an impression upon you?"
"Yes, sir."
"What was it?"
"My wife's sister came to visit."
"What time did she arrive?"
"Eleven-ten was when she actually got there at the airport."
"Did you go to the airport to meet her?"
"We sure did."
"Now, calling your attention to that evening, did anything happen earlier in the evening which aroused your attention, anything at all that was out of the ordinary?"
"Yes, sir."
"What was it?"
"About nine o'clock, just right around a minute or two after nine, I heard the sound of a shot."
Hamilton Burger jumped to his feet. "I move to strike out the latter part of that answer as calling for a conclusion of the witness."
"Oh, I think the expression is common enough so we'll let it go," Judge Alvarado said. "You may crossexamine him on that point."
"Could you determine the direction of that sound?" Mason asked.
"It came from the golf links."
"Now, where is your home with reference to the golf links of the Barclay Country Club?"
"We're along a street that parallels the golf club."
The Case of the Troubled Trustee pm-78 Page 14