"Look here," Judge Keyser said, "let's be realistic about this thing, Mr. Mason. Does this point make any actual difference in the case?"
"It does not, Your Honor," Fraser fairly shouted. "It is simply another one of defense counsel's very adroit moves which he is noted for."
"May I be heard, Your Honor?" Mason asked in a quiet voice.
Judge Keyser nodded. "You may be heard. My question was addressed to you."
"I think it is a very important point, if the Court please," Mason said. "I think I will be in a position to prove that if a bullet from this gun was fired into the body of Nadine Ellis, the bullet must have been fired after Nadine Ellis was dead.
"The defendant in this case is being tried for murder. Murder is the unlawful killing of a human being with malice aforethought. If a bullet was fired from this gun into the body of Nadine Ellis after she was dead, the defendant certainly isn't guilty of murder. That is, the evidence relied upon to prove her guilty of murder would prove only that she had discharged a bullet into a dead body."
"That's sheer bosh and nonsense," Fraser exclaimed heatedly. "As far as this hearing is concerned, all we need to do is to prove that Nadine Ellis was murdered, that the bullets in her body came from a gun found in the possession of the defendant."
"One of the bullets," Mason said.
"That's only a matter of expediency," Fraser said. "I will admit that the prosecution would have liked it better if the ballistics expert, Alexander Redfield, had taken the time and the trouble to have identified both bullets. But since one bullet was slightly damaged and apparently they both were fired from the same gun, he contented himself with making a positive, definite identification of only one of the bullets.
"Now, since it is only incumbent upon us to show that a crime has been committed and that there is reasonable ground to believe that the defendant committed the crime, we are quite content to introduce this gun in evidence, to introduce this bullet and rest our case."
"Now, just a minute," Judge Keyser said. "Ordinarily the Court is aware of the fact that the defense doesn't put on testimony in the preliminary hearing, and if the defense does, the Court usually disregards it unless it overwhelmingly establishes the innocence of the defendant. Courts usually feel that conflicts in evidence are to be tried in the Superior Court before a jury and that where the prosecution has made a primafacie case, the Court doesn't need to look any further. However, here we have a situation where a young woman, if bound over, would probably be held in jail for some time before the case came up for trial. Her reputation would be blackened, the experience would leave a psychic scar. This Court has no intention of submitting this young woman to such an ordeal simply because of technicalities.
"If Mr. Mason assures this Court that he believes he can establish the fact that this bullet could only have been fired from this gun after death had taken place, the Court certainly feels that Mr. Redfield should identify that other bullet as having come from the same gun."
"We have no objection to that," Fraser said, "except that it simply results in a delay and newspaper notoriety, both of which are greatly desired by defense counsel."
"That will do," Judge Keyser said. "There is no occasion for personalities and, after all, if you want to be technical about it, the fault, if any, rests with the prosecution. The defense is entitled to have the scientific evidence fairly examined and fairly presented. Mr. Redfield, how long will it take you to classify that somewhat damaged bullet and show that it either came from this gun, Exhibit B, or that it did not come from that weapon?"
Redfield hesitated and said, "I am working on an emergency matter at the moment. I interrupted my work there to come to court. I can promise to have the information by late this afternoon, but I am not certain that I could have it earlier."
Judge Keyser said, "I will adjourn this matter until three-thirty this afternoon. Try and have the information by that time, Mr. Redfield. If you can't possibly have it, we will continue the case until tomorrow morning. However, I would like to dispose of the case today and I think that the information concerning this bullet is of prime importance- I take it that the prosecution has evidence that this gun, Exhibit B, was found in the possession of the defendant and there can be no question of that?"
"That is right," Fraser said.
"Well, I'm going to adjourn court until three-thirty this afternoon," Judge Keyser said. "The witness will return at that time, and counsel will be present with the defendant. The defendant is remanded to custody."
Ellen Robb dug her fingers deep into Mason's coat sleeve. "Mr. Mason, how in the world- They're crazy. I didn't shoot Nadine Ellis. I never fired that gun at all. I-"
"Just sit tight," Mason said, warning her with a glance. "Don't make any statement. Newspaper reporters may try to get you to say something. The police may question you again about that gun. Sit tight, keep quiet. And whatever you do, don't lie to me."
"I'm not lying to you."
"You have been," Mason said.
She shook her head. "If that gun fired a bullet into the body of Nadine Ellis, somebody did it before the gun came into my possession and then put it in my suitcase."
Mason studied her face searchingly. She returned his gaze with level-lidded frankness. "I cross my heart and hope to die," she said.
"That," Mason told her, "may not be an empty expression. If you're lying to me, the situation may be a lot more serious than you think."
Mason nodded to the policewoman to take Ellen Robb into her custody, and left the courtroom with Della Street.
CHAPTER ELEVEN
In the small private dining room of the restaurant where Perry Mason, Della Street and Paul Drake so frequently lunched during the noon recess, the trio seated themselves at the table.
"I don't see what makes this seem such a devastating surprise to you," Paul Drake said to Mason. "I told you quite a while ago this client of yours was no lily-white angel. I take it, she's been lying to you."
"It's more serious than that, Paul," Mason said.
"How do you mean?"
"I'll let you in on a secret," Mason said. "If that gun committed the murder, I personally am mixed in it."
"Mixed in what?"
"Mixed in the murder."
"You are!" Drake exclaimed incredulously.
"Call it an accessory after the fact or suppressing evidence or anything you want, Paul. I just don't believe that gun could possibly have been used in the killing."
"Nevertheless, it was," Drake said. "The evidence shows it."
Mason, his face granite-hard with concentration, paid no attention to Drake's words and might not have heard him.
Drake turned to Della Street and said, "I don't get it. I've seen him skate on some awfully thin legal ice, but I've never seen him like this before."
Della Street shook her head warningly, indicating that Drake was not to pursue the subject.
Drake said, "What became of the gun that you gave me to test, Perry? That was registered in the name of George Anclitas."
"Just don't ask questions," Mason said. "Just eat your lunch."
The waiter brought in their orders, and Mason ate in thoughtful silence.
"Well," Drake said, as he pushed back his plate, "thanks for the lunch, Perry. I have had more cheerful meals."
Mason merely grunted in acknowledgment of Drake's remark.
"I'll get the chores done," Drake said, and left the dining room.
Della Street glanced solicitously at Perry Mason, started to say something, then checked herself.
As though reading her mind, Mason said, "I know you're wondering what's worrying me. The thing that worries me is whether the district attorney's office has baited an elaborate trap for me and I'm walking into it, or whether they have considered the case so dead open-and-shut they don't need to worry."
Della Street shook her head. "Hamilton Burger has his faults, but he's not entirely dumb. He would never consider a case, in which you were representing a defendant,
a dead open-and-shut case."
"But," Mason said, "he sent this Donovan Fraser in to try the case unaided. Fraser is a young eager beaver, a relatively new trial deputy. He's anxious to win his spurs and prove himself, and he's probably a little more belligerent than he will be after he has had five more years of courtroom practice under his belt.
"Now, why did Hamilton Burger pick that particular trial deputy to oppose me? He has some veterans in the office who are remarkably good lawyers."
"Isn't Fraser a good lawyer?"
"I think he is. The point is, he's relatively inexperienced, and in this business there are some things you can learn only as the result of experience."
"That's the only reason you think he may be laying a trap for you?" Della Street asked.
"No, that's only one of the reasons," Mason said. "The thing that bothers me is that in preparing this case they have apparently taken so much for granted-and I don't think they'd do that."
"In what way?"
"For instance," Mason said, "this gun that they took from Ellen Robb is, as far as the case is concerned up to this point, simply a gun. Apparently they didn't make any effort to trace the registration of the gun. Now, I just can't understand that."
"Well, after all, they found it in her possession and they found that the test bullet matched the bullet found in Nadine Ellis' body.
"If you were district attorney, you'd call in any trial deputy who happened to be unattached and say, 'Here's a case you can't lose. Regardless of the fact that Perry Mason is on the other side, you can't possibly conceive of any set of facts that would keep a judge from binding the defendant over to the Superior Court on this sort of showing."
Mason nodded.
"Well?" Della Street asked.
"I'll grant all that," Mason said, "but somehow I have a feeling that they may be laying a trap. It's almost impossible to think that they wouldn't have taken the number of the gun and tried to trace it through its various owners. Now then, if… if they can trace that gun to my possession, then what happens?"
"Then," she said, "you're in the soup."
"That's what I'm thinking," Mason said.
"And if you're going to get in the soup," she said, "isn't it better to become righteously indignant in court and claim that someone has doctored the evidence, that someone has substituted the bullets, that the murder simply couldn't have been committed with the weapon that was found in the possession of Ellen Robb because you, yourself, had been the one who had handed her that weapon and you had handed it to her at a time that was after Ellen had gone to the yacht?"
"How do we know it was after?" Mason asked.
"Why, she- I see," Della Street said.
"In other words," Mason said, "suppose Ellen is smart. Suppose she came to my office and told me a story about having gone to the yacht looking for Nadine Ellis, that she couldn't find her, that she had a fight with George Anclitas and left The Big Barn, that she found a gun in her suitcase and doesn't know what to do with it. She would tell me all this before Nadine Ellis had been murdered. Then, after she had given me a good story and aroused my sympathy, she'd go out and murder Nadine and-"
"Could she have done that?" Della Street asked. "Did she have the time? Remember, we had her virtually under surveillance because you had Paul Drake put operatives on the job to act as bodyguards. You felt that someone might try to cause trouble."
"That's what I'm trying to remember," Mason said. "There was an interval from the time she left our office before the bodyguards picked her up. Now then, she could have gone out to the yacht and killed Nadine Ellis during that interval. Is she a smart little babe who's taking me for a ride, or is she the victim of some sort of a diabolical frame-up? And if it's a frame-up, how the devil could they have worked it? How much does Hamilton Burger, the district attorney, know? How much rope is he giving me, hoping I'll hang myself, and what are my duties in this situation in view of the fact that I'm supposed to represent my client and not disclose evidence against her?"
"That," Della Street said, "is a formidable list of questions."
"And a great deal depends on getting the right answers," Mason said.
"So what do we do?" Della Street asked.
"We get in my automobile and drive around somewhere, where no one will recognize us, ask us any questions or serve us with any subpoena or other documents until just before three-thirty. Then we go to court, and no matter what happens, we stall things along so that we don't have to reach any decisions until after court adjourns for the evening. Then we have until tomorrow morning to plan a course of conduct."
Della Street nodded, pushed back her chair.
"And," Mason said, "when we get back to court at three-thirty this afternoon, if we should happen to find that Mr. Hamilton Burger, the district attorney himself, has entered the case, we'll know that it was an elaborate trap and that I've walked into it."
CHAPTER TWELVE
Perry Mason carefully timed his entrance to the courtroom so that it was only a few seconds before threethirty when he opened the swinging doors.
The bailiff, who had been watching the clock and frowning, pressed a button signaling Judge Keyser that everything was in readiness.
Two newspaper reporters hurried toward Mason. "Mr. Mason, Mr. Mason-"
The bailiff pounded a gavel. "Everybody rise," he said.
Mason walked past the reporters and stood facing the flag as Judge Keyser took his place on the bench.
Judge Keyser said, "The Court would like to get this matter finished this afternoon if it is at all possible. Now, Mr. Redfield is here and ready to take the stand?"
"Yes, Your Honor," Fraser said, looking toward the door of the witness room.
The door opened. Alexander Redfield came in, accompanied by Hamilton Burger, the district attorney.
Mason noted the significance of Burger's presence but kept his face completely without expression.
Judge Keyser, however, showed some surprise. "You're appearing in this case, Mr. District Attorney?" he asked.
"Yes, Your Honor, in person," Hamilton Burger said.
The judge started to say something, then changed his mind, turned to Redfield, said, "Mr. Redfield, you have now had an opportunity to study that other bullet and compare it with test bullets fired from the weapon which has been introduced as People's Exhibit B. In your opinion as an expert, was that bullet fired from that weapon?"
"It was not," Alexander Redfield said.
Judge Keyser could not refrain from an involuntary ejaculation of surprise. "What!" he asked.
Redfield shook his head. "It was not fired from that weapon. It was fired from a Smith and Wesson.38-caliber revolver, but it was not fired from the weapon introduced as Exhibit B."
"But the other bullet was? The so-called second bullet?"
"That's right. The bullet in evidence as Exhibit C-1 was not fired from that weapon. The bullet in evidence as C-2 was fired from that weapon. Bearing in mind that we have simply designated those bullets as number one and two, the words first and second were only a designation used by the doctor in his testimony. It didn't indicate that the bullets were fired in that numerical sequence. Unfortunately, the bullet referred to by Dr. Calvert as the first bullet was entered in evidence as C-2 while the bullet he referred to as the second bullet became C-i in evidence. In order to avoid further confusion, I wish to refer to each bullet specifically by its exhibit number."
Judge Keyser ran his hand along the top of his head, then looked down at Burger and over at Mason. "Does counsel on either side care to make any statement?"
Mason shook his head.
Hamilton Burger said, "We have no statement at this time, Your Honor."
"Now, just a moment," Judge Keyser said. "Let's be practical about this, Mr. District Attorney. The evidence so far shows unmistakably that a crime has been committed. There is evidence-or rather I should say there has been evidence-tending to show this defendant committed the crime. What might have been refer
red to as the fatal weapon was found in her possession. However, there now are certain unusual circumstances in this case.
"Because of a lapse of time and the start of putrefaction, it is impossible for the autopsy surgeon to tell which of two bullets was fired first. Either bullet could have caused death. It is impossible for the autopsy surgeon to give an estimate as to the interval of time between the firing of the first and second shot. It has been at least intimated by the defense that a part of the defense in this case will be predicated upon the assumption that one of the bullets was fired a sufficient length of time after the other bullet so that death at least could have taken place prior to the time this bullet was fired."
"I understand, Your Honor," Hamilton Burger said.
"I am assuming," Judge Keyser said, "that the position of the prosecution is that the point is immaterial as far as a preliminary hearing is concerned, that there is sufficient evidence tending to connect the defendant with the commission of the crime to result in her being bound over.
"I am forced to say that I consider this position to be well taken in the eyes of the law. However, from a practical standpoint the Court would have wished that the situation could have been cleared up. It is not a pleasant duty to bind a young woman over for trial, knowing that the interim must be spent in jail. Therefore, the Court would, for its own information, have liked to have had more light on the subject. However, if it is the position of the prosecution that technically the case calls for binding the defendant over, the Court feels that that position is probably well taken."
Mason arose and said somewhat deferentially, "I take it the Court is not precluding the defense from putting on evidence."
The Case of the Singing Skirt pm-63 Page 12
