“Then what did you do?”
“I reached down inside the flour.”
“What did you find?”
Tragg couldn’t keep his voice from being nervously rapid. “I found a .38 caliber, double-action Smith & Wesson revolver.”
“You may tell us what you did with reference to that revolver.”
“I rushed it to the criminal laboratory to see if fingerprints could be developed. I took the number and, while I have traced that number to my satisfaction, I haven’t as yet secured the necessary witnesses to appear and testify. I think I can have a witness here by tomorrow morning.”
“Cross-examine,” Burger said.
Mason said urbanely, “But you have satisfied yourself, Lieutenant, as to what the sales record will show?”
“I have. We have recently compiled statistics so that the sales of any guns within the county, over a period of fifteen years, can be instantly determined—that is, so far as the police are concerned. Of course, those records aren’t anything we can take to court as evidence. We will have to get the original record from the dealer who made the sale.”
Mason said, “I understand, Lieutenant. But those records do give you, for police use, the information which is contained on the dealers’ registers of firearm sales?”
“Yes, sir.”
Mason said, “I will waive all objections as to whether this is or is not the best evidence, and ask you if the police records don’t show this revolver was purchased by Franklin B. Shore sometime prior to January, 1932?”
Tragg’s eyes showed that Mason’s question caught him by surprise, but he answered after a moment, “Yes, sir. That gun, according to our records, was purchased by Franklin B. Shore in October of 1931.”
“And what do you deduce from all this, Lieutenant?” Mason asked.
Judge Lankershim frowned at Mason. “That question, counselor, calls for something which could hardly be binding upon the defendant, nor, of course, would it be permissible, if asked by the prosecution.”
“I understand,” Mason said, “but I take it there is no objection from the prosecution.”
“None whatever,” Burger said, with a triumphant leer at the jury. “I would like nothing better than to have Lieutenant Tragg answer that question.”
Judge Lankershim still hesitated, then said, “There is only one theory upon which this would be admissible as cross-examination, and that would be to show the bias of the witness. In view of the fact that the question may be permissible upon that ground, since there is no objection on the part of the prosecution, I will permit it to be answered. The Court cannot, of course, tell what counsel for the defense has in mind. But the Court does feel that, so far as the proceedings against this defendant are concerned, the constitutional guarantees must be observed. Therefore, the Court will limit the consideration which the jury may give to the answer, as relating to and showing a possible bias on the part of the witness. Under those circumstances, the witness may answer the question.”
Tragg said, “There is no question in my mind but what Franklin B. Shore got up after Thomas Lunk left the house, went to the pantry and concealed this gun in the can of flour; that this kitten followed him into the pantry, jumped in the flour, and that Mr. Shore pushed the kitten out, and the kitten thereupon ran into the bedroom and jumped in the bed which Mr. Shore had just vacated. I may state further that this simply goes to indicate how vitally important a witness Franklin Shore is and was, and emphasizes the gravity of any attempt which might have been made to spirit him away.”
Mason smiled. “It also indicates that Franklin Shore was, very shortly after the shooting of Jerry Templar, in possession of the revolver with which the shooting was perpetrated, and of the same revolver which, in all probability, fired the fatal bullet into the body of Henry Leech, does it not?”
Burger said, “I’m going to object to that question, Your Honor, upon the ground that it is argumentative, and not proper cross-examination.”
Judge Lankershim said, “It is highly irregular. It is far afield from the ordinary course of examination. It indicates what happens when a police witness is permitted to give his opinion and deductions under the guise of evidence. However, by failing to object to that other question, the prosecution has opened the door to this entire line of cross-examination. Only, however, for the purpose of showing the bias of the witness. If this witness is once permitted to give his deductions as to what the facts indicate, counsel for the defense should be permitted to point out to the witness a possible fallacy in his reasoning. I think I see the point counsel is driving at, and I think I appreciate what his next question will be—a question which might very seriously affect the case of the prosecution. By permitting the door to be opened at all, the district attorney has given counsel an opportunity to open it all the way. I am going to let the witness answer this question as well as the question which I feel certain will follow.”
Tragg said cautiously, “I don’t know that it’s the same gun with which the crimes were committed. It is a gun of the same caliber and the same description. There were three discharged shells in the cylinder of that gun, and the remaining three cylinders were loaded with shells and bullets of the same general character as those recovered from the body of Henry Leech, from the woodwork at the Shore house, and from Jerry Templar at the time he was operated on.”
Mason looked at Hamilton Burger and winked. He turned to the jury and smiled triumphantly. “And now, Lieutenant,” he said to the witness, “I will ask you if it isn’t equally fair to assume, if this weapon should prove to be the murder weapon, that Franklin Shore, having concealed that weapon in the residence of Thomas Lunk, would then have been most anxious to make his escape?”
“Objected to,” Hamilton Burger shouted, “upon the ground that this is taking the witness far afield into the realm of conjecture. That is a matter which counsel can argue to the jury. It is not a question to be asked of this witness.”
Judge Lankershim said, “It is precisely the question which I thought counsel would ask next. The objection is overruled. The witness will answer it—but remember, the answer is admissible only to show possible bias.”
Tragg said, “I don’t know. It is, of course, a possibility.”
Judge Lankershim turned to the jury. “The jurors will understand that these last few questions have been permitted only for the purpose of showing the attitude of the witness. In other words, the possible bias of the witness, meaning by that any prejudice which he might entertain against the defendant. The questions and answers can have no evidentiary value except for that single purpose. You will consider them only for that purpose.”
Mason settled back in his chair and said to Lieutenant Tragg, “Now when you found that gun in the flour, Lieutenant, you were somewhat excited, were you not?”
“Not exactly.”
“You were in a hurry to get back to court and hand that gun to the police laboratory?”
“Yes.”
“In so much of a hurry,” Mason said, “that I take it you didn’t search the can of flour to see what else it might have contained.”
The expression of sudden consternation upon Tragg’s face foreshadowed his answer. “I . . . I didn’t make any further search of the can. But I did bring that can along with me and give it to the police laboratory to search for fingerprints.”
Mason glanced at Judge Lankershim and said, “I submit, Your Honor, that the case having gone this far, the witness should be permitted to . . .”
There was a commotion in the back of the courtroom. The dour Scotchman who presided over the criminal laboratory of the police came pushing his way through the spectators who had gathered around the door.
Mason said, “However, Your Honor, I think that Angus MacIntosh is about to supply that information. We are perfectly willing to let Lieutenant Tragg step down and Mr. MacIntosh, who has already been sworn as a witness, take the stand.”
Hamilton Burger said, cautiously, “I don’t know wha
t counsel is getting at. If the Court will pardon me a moment, I would like to talk with Mr. MacIntosh.”
Burger arose hastily and stepped over to the rail which separated the counsel table from the spectators. He engaged in a whispered conference with Angus MacIntosh, then looked at Perry Mason with a puzzled frown, following which he said abruptly to Judge Lankershim, “If the Court please, we would like to have a recess until tomorrow morning.”
“Any objection?” Judge Lankershim asked Perry Mason.
“Yes, Your Honor. If the district attorney won’t put Angus MacIntosh on the stand, I want to call him as a witness for the defense.”
Hamilton Burger said testily, “The prosecution has not yet concluded its evidence. The defense will have ample opportunity to call its own witnesses when the prosecution rests.”
Judge Lankershim said acidly, “The request for a continuance is denied. Proceed with your cross-examination of Lieutenant Tragg, Mr. Mason.”
Mason said, “I have no further questions, Your Honor. Nor have I any further questions of the witness Lunk whose cross-examination was interrupted to permit Lieutenant Tragg to be once more placed on the witness stand.”
Hamilton Burger said quickly, “Under those circumstances, I have some more questions to ask the witness Lunk on redirect examination.”
Judge Lankershim’s voice showed his impatience. “Very well. You may stand down, Lieutenant, and the witness Lunk will again take the stand. But, kindly don’t waste time, Mr. District Attorney.”
When Lunk had once more resumed his position in the witness chair, Hamilton Burger said, “Mr. Lunk, did you at any time after the morning of the thirteenth open that can of flour in your pantry?”
“Objected to as already asked and answered,” Mason said.
“It has been asked and answered, but under the circumstances, I will permit it to be asked again,” Judge Lankershim said. “The witness will answer the question.”
Lunk said, “No. After I made the pancakes on the morning of the thirteenth, I didn’t take the lid off the flour can again.”
“Did you use that flour can for any other purpose than storing flour—in other words, did you keep or did you put anything other than flour in that can at any time?”
“No, sir.”
Burger hesitated, then said, “That is all.”
“No questions,” Mason said.
Judge Lankershim looked at the clock, then at the district attorney. “Call your next witness.”
Hamilton Burger said, with somewhat poor grace, “Angus MacIntosh will take the stand. Mr. MacIntosh has already been sworn and has testified to his position in the police laboratories.”
MacIntosh returned to the witness stand.
“You were given a can of flour a few minutes ago by Lieutenant Tragg?” Hamilton Burger asked.
“Yes, sir.”
“What did you do with that can of flour?”
“I wanted to photograph the can and develop latent fingerprints on it, so I dumped out the flour.”
“What did you find?” Burger asked.
“I found currency in bills of fifty and one hundred dollars, making a total of $23,555.”
There was a stir of excitement in the jury box.
“Where are those bills now?”
“In the police laboratory.”
“Cross-examine,” Hamilton Burger snapped.
“No questions,” Mason retorted promptly, and then smiling at the judge, said, “And now, Your Honor, the defense has no objection whatever to consenting to the continuance which the prosecution has requested.”
“The prosecution doesn’t want it now,” Burger said shortly. “The prosecution rests.”
“The defense rests,” Mason said promptly. “It is four-thirty. I will stipulate that, so far as the defense is concerned, arguments on each side may be limited to ten minutes.”
“I’m not prepared to argue the case at this time, or in that short a time,” Hamilton Burger said. “The recent startling developments have been such that I would like more time to correlate the various matters which have been discovered.”
“Then why,” Judge Lankershim asked, “did you object to an adjournment when the defense suggested it?”
Burger said nothing.
“Apparently,” Judge Lankershim went on, “you wanted to see what the evidence of the defense would be. Counsel consented to a continuance, and you rejected it.”
“But, Your Honor,” Hamilton Burger protested, “I felt that I was in a position to go ahead with the case so far as the cross-examination of the defendant’s witnesses were concerned, but that I was not prepared to argue the case.”
Judge Lankershim shook his head. “Court will adjourn at five o’clock. You may proceed with your argument. The Court will limit the argument to twenty minutes to each side.”
Hamilton Burger accepted the ruling of the Court, marched up to a position in front of the jurors and said, “In view of the limitation which has been placed on the argument, and the unexpected developments in this case, I am not prepared to make an extensive opening argument. I will conserve my time so as to make a longer closing argument. I will state, however, that the circumstantial evidence shows conclusively the defendant in this case and her employer, Perry Mason, were engaged in activities which included spiriting away material witnesses. What was done with the witness Lunk is virtually uncontradicted. The defendant is not on trial for that, but her willingness to spirit away a witness is shown by the manner in which she and her employer got the witness Lunk away from the police and endeavored to keep him in concealment.
“We are asking for a conviction of the defendant upon the evidence as it now stands. Regardless of what Franklin Shore may have done, I don’t think any person on this jury doubts that Della Street’s purpose in going to the residence of Thomas Lunk in the small hours of the morning of the fourteenth was to spirit Franklin Shore away. The Court will instruct you that it is not necessary that the attempt be successful in order to constitute a crime under sections 136 and 136½ of our Penal Code. The spiriting away of a witness, with the intent of preventing him from testifying at a proper legal proceeding or an investigation, constitutes a crime.
“That, ladies and gentlemen, is the contention of the prosecution. If the defendant wishes to adopt the position that Franklin Shore had already left the premises before Della Street’s arrival, it is incumbent upon the defense to assume the burden of proving that fact.
“I will not consume any more time now, but will reserve such time as I have left for my closing argument.”
Burger, glancing triumphantly at the clock, and realizing that he had jockeyed Perry Mason into the position of completing his opening argument prior to the evening adjournment, leaving the prosecution in the advantageous position of being able to sleep over the developments, before making its closing argument, marched back to his chair and sat down.
Mason slowly got to his feet, walked deliberately over to the jury box and smiled at the puzzled jurors.
He opened quietly. “The prosecution can’t shift the burden of proof to the defendant until it has first proven the defendant guilty beyond all reasonable doubt.
“I submit to you, ladies and gentlemen, that Franklin Shore was not present at Lunk’s residence when Della Street arrived there. The reason I have introduced no testimony is that the evidence of the prosecution proves my point conclusively.
“I will not comment on the evidence of the flour. I will comment only on the actions of the kitten. Someone opened the flour can. Some object was placed in that can, perhaps the gun, perhaps the currency, perhaps both. The kitten, a playful, careless, fearless animal, attracted by the motion of the hands over the can of flour, jumped into the flour can and was promptly tossed out. The kitten thereupon ran through the partially opened door, into the back bedroom and jumped upon the bed.
“It must be perfectly obvious that the bed was then vacant, equally obvious that the kitten forthwith jumped down on the ot
her side of the bed and went directly through the bathroom to jump on the bed in the front bedroom.
“Ladies and gentlemen, I will ask the prosecution, since this is a case of circumstantial evidence, to explain one thing to you—and preparatory to that, let me remind you that inasmuch as this is a case of circumstantial evidence, the law is that you must acquit the defendant unless the evidence not only indicates beyond all reasonable doubt the guilt of the defendant, but cannot be explained upon any reasonable hypothesis other than that of her guilt. Therefore, ladies and gentlemen, why did the kitten, after getting in the flour and after jumping on the bed of Franklin B. Shore, leave that bed to go into the front bedroom and curl up on the bed in there?
“Having relied upon circumstantial evidence, it is up to the district attorney to explain every bit of it. Therefore, in the morning, let the district attorney answer that interesting question as to the conduct of the kitten. And some of you, who are quite probably familiar with cats, their psychology, their habits, will doubtless have an answer of your own.
“And that, ladies and gentlemen, concludes my argument.”
Several of the jurors looked puzzled, but two of the feminine members were nodding and smiling as though they had already grasped the point which was causing Hamilton Burger to scowl blackly.
Judge Lankershim himself seemed also to have some knowledge of kittens, for there was a smile playing about the corners of his lips, and a twinkle in his eyes as he admonished the jurors not to form any opinion as to the merits of the case, not to discuss it among themselves, or permit it to be discussed in their presence, and adjourned court until the next day at ten o’clock, remarking that the defendant was on bail and would be released upon that same bail until the next morning at ten o’clock.
23
AS SOON as court had adjourned and the Judge had left the bench, Hamilton Burger came pushing his way across to Mason.
“Mason, what the devil does this mean?”
Mason smiled affably. “I’m sure I couldn’t say, Burger. All I’m doing is defending Miss Street against a criminal charge. I don’t think the jury will convict her, do you?”
The Case of the Careless Kitten Page 21
