Judge Eduardo Alvarado opened the second day of the trial by saying, "Gentlemen, I hope we can get a jury today."
"I see no reason why we can't," Perry Mason said.
"The peremptory is with the prosecution," Judge Alvarado said.
"The prosecution passes."
Mason arose, bowed and smiled. "Let the jury be sworn," he said. "The defense has no further peremptories and is satisfied with this jury."
Judge Alvarado smiled as he said, "Well, I hardly expected such prompt action. I thank you, gentlemen. The clerk will now swear the jury and then Court will take a ten-minute recess."
At the conclusion of the recess, Judge Alvarado nodded to the table of the prosecution where Stevenson Bailey, one of the trial deputies, sat next to Hamilton Burger, the district attorney.
"Make your opening speech, Mr. Prosecutor," the judge said.
Bailey said, "If it please the Court, and you members of the jury, this is going to be perhaps the briefest opening statement I have ever made.
"For the most part I am going to let the facts speak for themselves, but because they are somewhat complicated I will give you a brief outline.
"The defendant, Kerry Dutton, was trustee under a so-called spendthrift trust created by Templeton Ellis in favor of his daughter, Desere Ellis.
"Under the terms of this trust, the defendant, Dutton, had the right to sell securities as he saw fit, purchase other securities, and to pay out such money as he saw fit to the beneficiary of the trust.
"Now then, ladies and gentlemen, we expect to prove that in the three years and some months, almost four years, during which this trust had been in effect-" And here Bailey held up four fingers in front of the jury- "during all of those four years, the defendant in this case never made a single accounting to the beneficiary of the trust."
Bailey paused to let that statement sink in.
"Furthermore, ladies and gentlemen of the jury, we propose to show that the defendant, Dutton, had systematically looted that trust, using income from it to feather his own financial nest until he had built up an independent fortune in his own name through shrewd investments and manipulations but he never-made-an-accounting!"
Again there was a moment of silence.
"As a part of the holdings of the trust, there had been stock in the Steer Ridge Oil and Refining Company. This stock was highly speculative. At one time it was rather high; then it went to a low where the value was only nominal; and then when oil had been struck, the property skyrocketed.
"We expect to show that Rodger Palmer, the decedent, had known the executive officials of the Steer Ridge Oil and Refining Company for some time, had also known Templeton Ellis, the father of Desere Ellis.
"We expect to show that Rodger Palmer wanted the defendant to give him a proxy enabling the decedent to vote the trust stock in the Steer Ridge Company. The defendant refused, because he had to refuse, since he had sold the Steer Ridge stock. The decedent didn't know of this sale, but we can show by inference at least that he did know of a purchase of a large block of Steer Ridge stock the defendant had made in his own name.
"The decedent, Rodger Palmer, was threatening the defendant with exposure unless he received a proxy and the sum of five thousand dollars with which to carry on his proxy fight.
"Now, we expect to show this and to show that Rodger Palmer made a final appointment with the defendant at approximately ten o'clock on the night of the twenty-first of September.
"I say that it was a final appointment, because the defendant kept that appointment and, at that time, killed Rodger Palmer. The decedent, Rodger Palmer, had demanded five thousand dollars as the price of his silence. The defendant had been prepared to pay that price if he had to. He had drawn five thousand dollars from his bank and had the money on him in cash when he was apprehended.
"But the defendant knew that blackmail was endless. The blackmailer's attitude would be even more eager, his appetite the more voracious by receiving this payment.
"So after due consideration, after careful deliberation, Kerry Dutton decided on murder as his best way out.
"The murder, ladies and gentlemen, took place at the seventh tee of the exclusive Barclay Country Club. The body was not found until the next morning.
"By that time the defendant had fled to Mexico and was registered at an auto court under the name of Frank Kerry.
"We may never know all the information Palmer was holding over the defendant's head. We can surmise some of it. The circumstantial evidence screams to heaven of blackmail.
"We further propose to show that along the path of his flight, the defendant paused long enough to throw the gun, the murder weapon with which Rodger Palmer was killed, under a culvert.
"On the strength of that evidence, ladies and gentlemen of the jury, we expect to ask for a verdict of firstdegree murder.
"We thank you."
Bailey bowed with courtly dignity, strode back to the counsel table, and sat down.
"Do you wish to make an opening statement at this time?" Judge Alvarado asked Perry Mason.
"We will defer our opening statement until the defense is ready to put on its case," Mason said.
"Very well," Judge Alvarado said, "call your first witness, Mr. Prosecutor."
Bailey called the autopsy surgeon who testified to having performed an autopsy on the body of Rodger Palmer. The death had been caused by a single gunshot wound in the head, which had been fired into the right temple from a gun which had been not more than six inches away from the man's head at the time of its discharge.
Asked as to the time of death, he fixed the time of death as between nine-thirty o'clock and two-thirty A.M. on the night of the twenty-first and twenty-second of September.
"Cross-examine," Bailey snapped at Mason.
Mason said, almost casually, "Death could have been at nine o'clock, Doctor?"
"I doubt it."
"At eight-thirty?"
"I don't think so."
"But it could have been at eight-thirty?"
"It's possible but not probable. I fix nine-thirty as the earliest hour."
"But it's possible death occurred at eight-thirty?"
"But not probable. You cah't fix the time of death with a stop watch."
"That's all, Doctor, thank you."
In rapid succession, Bailey called witnesses who testified to Rodger Palmer's interest in the Steer Ridge Oil and Refining Company, to his friendship with Templeton Ellis, and to the fact that he had, shortly prior to his death, been engaged in a quiet campaign to secure proxies in the Steer Ridge Oil and Refining Company in his name.
Mason brushed all of these witnesses aside with the casual comment, "No questions," when he was asked to cross-examine.
Judge Alvarado watched the lawyer with thoughtful curiosity as it became apparent Mason did not intend to engage in routine cross-examination.
"Call Miss Desere Ellis to the stand," Bailey said, in the manner of one making a dramatic announcement.
Desere Ellis came forward, her manner subdued, her eyes purposely avoiding those of Kerry Dutton.
She took the oath, seated herself on the stand, and faced the prosecutor with the manner of a courageous woman who is facing an ordeal and is determined to be brave.
Under skillful questioning by Bailey she told about her father's death, the reading of the will, the initial conversations with the defendant about the trust.
"Now then," Bailey said, "when did the defendant make his first accounting under the trust?"
"He never made any accounting."
"Never-made-any-accounting?" Bailey repeated.
"No, sir, no formal accounting."
"Well, were there any other accountings, any informal accountings?"
"Well, he discussed, from time to time, the securities which he had sold in order to give me my allowance."
"And did he make any comments at that time in regard to the principal of the trust?"
"He said at one time that he had sold nearly all of the securities which my father had left."
"Thereby giving you the impression that there would be no funds available to you after the termination of the trust?"
"I had that impression, yes."
"Did the defendant, at any time, tell you that there was a large sum of money in the trust which he would have to pay over to you or to which you would be entitled on the termination of the trust period?"
She shifted her position on the witness stand, started to glance at Dutton, then lowered her eyes.
"No," she said.
"Did he ever tell you he had sold your Steer Ridge stock at a dollar a share, then, later on, purchased a similar block of Steer Ridge stock in his own name at from ten to fifteen cents a share?"
"No."
"Did he tell you he had made this purchase only a few days before the stock had skyrocketed in value?"
"No."
"Did he tell you he had secured inside information that Steer Ridge was drilling in a most promising formation?"
"No."
"Did you have any reason to believe your Steer Ridge stock had been sold?"
"No."
"The defendant never told you so?"
"No."
Bailey said to Perry Mason, "Cross-examine."
Mason arose and approached the witness, his manner courteous, pausing when he was some five steps from the witness stand, waiting until she raised her eyes to his.
Mason said in a kindly voice, "You had the impression that your trust funds would be exhausted when the time came to terminate the trust?"
"Yes."
"That was an impression you had in your mind?"
"Yes."
"Now then," Mason said, holding up his left index finger, "please follow this question very closely. Are you prepared to do so?"
"Yes, sir," she said, her eyes on his finger.
Mason moved the finger, slowly, beating time to the words, "Did you get this impression from your own thinking, or did the defendant ever tell you in so many words that the trust fund would be exhausted at the time the trust terminated?"
"I… I had that impression."
"I know you did," Mason said, "and it is quite possible that the defendant knew you did, but I am asking now if the defendant ever told you in so many words definitely, positively, that the trust fund would be exhausted at the time the trust terminated?"
"I can't remember his ever having said that."
"That's all," Mason said.
"Just one more question on redirect," Bailey said. "Did the defendant ever tell you in so many words, Miss Ellis, that there would be a large sum of money coming to you on the termination of your trust?"
"No, sir," she said, promptly.
"That's all," Bailey said.
"Just one more question on recross?" Mason asked. "Miss Ellis, did you ever ask the defendant?"
"No, I can't remember doing that."
"In other words, you took the situation for granted?"
"Yes."
"That's all," Mason said.
Bailey was again on his feet, "I'm going to ask one more question on redirect. Isn't it a fact that the defendant was fully aware of your feeling that the trust fund would be exhausted?"
"Objected to," Mason said, "as calling for a conclusion of the witness."
"All right, all right, if I have to do it the long way around, I'll do it the long way around," Bailey said in exasperation. "Isn't it a fact that the defendant let you know by his own words that he understood you felt the termination of the trust would leave you with no funds?"
"Objected to as calling for a conclusion of the witness and on the further ground that it is leading and suggestive."
"It's redirect examination," Bailey said.
"I don't care what it is," Mason said. "A man has no more right to lead his witness on redirect than he does on direct. Furthermore, this calls for a conclusion of the witness as to what the defendant said. Let's have a question calling for the defendant's exact words."
Bailey waved his hands in a gesture of dismissal. "I think the jury understands the situation. I'm not going to bicker with counsel. That's all, Miss Ellis."
Mason smiled. "That's all."
"I'll call Mrs. Rosanna Hedley to the stand," Bailey said.
Mrs. Hedley assumed her position on the witness stand with a very visible chip on her shoulder. She didn't intend to be confused by any attorney.
"Did you ever hear a conversation between Desere Ellis and the defendant in which she asked him about the condition of the trust funds?" Bailey asked.
"Yes, sir."
"Do you remember when that was?"
"I remember exactly when it was. That was on the fourth day of July, on the evening of the fourth of July."
"Who was present?"
"My son was present, that is, he had been present."
"And by your son, you mean Fred Hedley?"
"That's right," she said. "Fred Hedley, the artist."
Bailey smiled almost imperceptibly. "Exactly," he said. "Was Fred there at the time of this conversation?"
"No, he had left the room."
"Then who was present?"
"Just Miss Ellis, the defendant, and myself."
"And what did Miss Ellis say?"
"She asked the defendant how the trust was coming what she could count on."
"And what did the defendant say in response to the question?"
"He told her that he thought the trust funds would last Out the duration of the trust, letting her have the same allowance she'd been having."
"Move to strike the answer," Mason said, "as not being responsive to the question and as being a conclusion of the witness. The witness should state the exact words used by the defendant as nearly as she can recollect."
"The motion is granted. The answer will go out. The witness will answer the question as to exactly what the defendant said."
"You mean I have to give his exact words?" Mrs Hedley asked.
"As nearly as you can," Judge Alvarado explained, not unkindly. "When you give your impression of his words, you are not giving the exact words but a conclusion you drew from the conversation. Can you remember exactly what he said?"
"Well, as nearly as I can remember, he said, with one of those oily smiles, 'Don't worry, Desere, there will be money enough in the trust fund to keep your allowance until the trust expires.'
"Cross-examine," Bailey snapped.
Mason smiled. "His smile was oily, Mrs. Hedley?"
"Oily," she repeated.
"What do you mean by an oily smile?" Mason asked.
"You know what I mean, a smirk, a simper."
"Greasy?" Mason asked.
"Oily!" she snapped.
"That gives a pretty good picture of your feeling for the defendant, does it not?" Mason asked.
"A feeling which events have amply justified," she said acidly.
"Now then," Mason said, "he told her there would be enough money to last Out the trust?"
"Yes."
"In other words," Mason said, "he was predicting the future. We might have had another crash in the security market."
"Yes," she said, "the world might have come to an end."
"And there was enough money in the trust to carry through Desere's allowance to the end of the trust, was there not?" Mason said.
"That much and nearly two hundred and fifty thousand more."
"Then he didn't lie to her, did he?"
"He deceived her."
"But he didn't lie to her."
"Objected to as argumentative, as calling for a conclusion of the witness," Bailey said. "If the defense is going to be technical, I'll be technical."
Mason smiled blandly and said, "I'll withdraw the question. I think the jury has the picture in mind," and sat down.
Bailey called a ballistics expert, who identified the Smith amp; Wesson revolver introduced in evidence as the murder weapon. He then called a firearms dealer who identified the gun as having been sold by him to the defendant, and introduced in evidence the certificate of purchase, bearing the signature of the defendant.
Bailey also introduced maps showing the scene of the murder; photographs of the terrain; of the body, and of the clothes worn by the decedent. He introduced the coat worn by Palmer when the body was discovered and called attention to the fact that the labels had been cut from the garment.
The coronor testified there were no keys, no money, no handkerchief, no knife, nothing in the pockets.
Bailey called Lt. Tragg to the stand. Tragg testified to having been advised of the murder, going to the golf club, inspecting the body and the premises; then looking in the culverts along the road leading from the golf club.
"Why did you do this?" Bailey asked.
"It's a routine police procedure."
"What did you find, if anything?"
"I found this gun, tagged People's Exhibit A-G, in a culvert, one and three-tenths miles from the entrance to the golf club."
"And what did you do with that gun?"
"I traced the registration on it."
"How long did that take you?"
"Only a few minutes after it was found. We ran down the serial number."
"What else did you do, if anything?"
"When we connected the serial number with the defendant, we got the license number of his automobile and put out an all-points bulletin."
"And did that all-points bulletin include certain cities in Mexico?"
"We have an arrangement on important homicide cases by which the Mexican police in Ensenada, Tijuana and Mexicali co-operate with us."
"And what did you find?"
"We found the defendant registered in Ensenada-"
"Just a moment," Mason interrupted. "Is the witness testifying as to what he found or what the Mexican police found? In the latter event, it is hearsay."
"Quite right," Bailey said. "Don't testify to anything you have been told, Lieutenant Tragg."
"Well, then I can't testify to his being in Mexico," Lt. Tragg said with a smile.
"Where did you, personally, find the defendant?"
"At the international border, just outside of Tecate," Tragg said.
"And how did you happen to find him there?"
"The Mexican police pushed him across the line."
"And what did you do?"
"Took him in custody."
"Did you have any conversation with the defendant at that time?"
"Yes."
"Did you tell him that he was accused of murder?"
"I told him that he was wanted for questioning in connection with the murder of Rodger Palmer."
"Did you ask him where he had been at the time the murder was committed or approximately that time?"
"I asked him many questions, and his answer was the same to all of them."
"What was his answer?"
"'I refuse to make any statement until I have consulted my attorney!'"
"That was his answer to all questions?"
"Well, I asked him why, if he had nothing to conceal, he had registered under the name of Frank Kerry in Mexico, and he stated that actually Kerry was his middle name, that Frank was his first name and his full name was Frank Kerry Dutton."
"I see," Bailey said. "Cross-examine."
"Why, no questions at all," Mason said, with a gesture of his hand.
There was a note of triumph in Bailey's voice as he said, "Call Thomas Densmore Fulton to the stand."
Fulton came forward and was sworn.
"What is your occupation?"
"I am a private detective."
"By whom are you employed?"
"Mostly by the Drake Detective Agency."
"On the twenty-first day of September last, by whom were you employed?"
"Paul Drake."
"What were your instructions?"
"To shadow a subject."
"Who was the subject?"
"The defendant, Kerry Dutton."
"And in connection with your duties, did you follow Kerry Dutton anywhere?"
"I did. Yes, sir."
"Where?"
"I followed him to a telephone booth."
"Where was that telephone booth?"
"At a service station on the corner of Figueroa and Boulevard Way."
"Was the service station open or closed?"
"The service station was closed. It was a big service station with quite a bit of parking space, but the telephone booth was open."
"What did you do?"
"I saw the defendant enter the telephone booth and I drove my car from across the street and into the parking station. He dialed a number, then hung up the phone and after a short interval, dialed again. I ran up to the booth as though I were in a hurry to use the telephone."
"What did the defendant do?"
"He motioned me away."
"What did you do?"
"I surreptitiously planted a wire recorder with adhesive tape so that the microphone, which is very sensitive, would pick up sounds within the booth."
"Then what did you do?"
"Returned to my car."
"And what happened after that?"
"The defendant emerged from the telephone booth, jumped in his car and took off."
"What did you do?"
"I tried to follow him."
"Were you able to do so?"
"No, sir."
"Why?"
"The defendant drove like crazy. He went through three or four red lights, through a boulevard stop, nearly had a collision with another car, left me stymied in cross-traffic and got away."
"So, what did you do?"
"I returned to the telephone booth to pick up the wire recorder and see if I had a clue there."
"And you picked up the wire recorder?"
"Yes, sir."
"Then what did you do?"
"I rewound the wire to the starting position and turned the key over to listening and listened to the recording."
"Do you have that wire recorder here?"
"I do."
"If the Court please," Bailey said, "I believe the conversation on the wire recorder is the best evidence. It is not as clear as I would like to have it, but it is, nevertheless, understandable. I have arranged for an amplifier and I would like to have this conversation played directly to the jury."
"No objection," Mason said.
Rather dramatically, Bailey set up the wire recorder, in connection with the amplifier, and turned on the current. A buzzing sound filled the courtroom, then the sound of a man's voice. "Hello, what's new? You know who this is."
There was a brief interval of silence, then the voice said, "I called this other number for instructions; I was told to call you here at this pay station… Yes, I have the five thousand and will pay it over if things are as you represented-if you're acting in good faith."
There was an interval of silence; then the man's voice said, "Give me that place again. The seventh tee at the Barclay Country Club… why in the world pick that sort of a place?… When?… Good heavens, it's nearly that time now… All right. All right! I'll get out there. Yes, I've got a key to the club. I'll be there."
There was an abrupt click as the recording ended.
"That, if the Court and the jury please," Bailey said, "is the termination of the conversation."
Bailey turned to the witness. "What did you do after hearing that conversation?"
"I went at once to the Barclay Country Club."
"What did you find there?"
"I found the defendant's automobile parked there."
"How long did it take you to get there from the time you listened to that conversation on the tape recorder?"
"Probably fifteen minutes."
"And what did you do?"
"I tried the door of the club, but it was locked. I waited until the defendant came out."
"How long was that?"
"I arrived at ten-ten. The defendant emerged at tentwenty-two."
"Now, let's get this time element straight," Bailey said. "You tried to follow the defendant?"
"That's right."
"He was driving, as you said, like crazy. He went through red lights and boulevard stops?"
"Three red lights; one boulevard stop."
"You lost him?"
"That's right."
"You returned to the telephone booth?"
"Yes, sir."
"You picked up your recording device and listened to the conversation?"
"Yes, sir."
"How long, in your opinion, was that from the time you had left the telephone booth following the defendant?"
"Probably five minutes."
"And then you went directly to the Barclay Country Club?"
"Yes."
"And you waited at the Barclay Country Club for how long?"
"Eleven minutes… nearly twelve minutes."
"And then the defendant came Out?"
"Yes, sir."
"And what did he do?"
"He drove down the road for a mile and threetenths."
"And then what?"
"Then he brought his car to an abrupt stop and started backing up."
"What did you do?"
"I had to drive on past him so he wouldn't be suspicious."
"And then what?"
"I went half a mile down the road, jumped out of the car, put a bumper jack under the rear bumper and acted as if I had a flat tire."
"And what happened?"
"Within a matter of seconds the defendant's car went past me again, going at high speed."
"What did you do?"
"I hurriedly removed the bumper jack, tossed it in the back of the car, and stepped on the throttle."
"And were able to follow the defendant?"
"Yes, sir."
"How far did you follow him?"
"To Ensenada."
"Where in Ensenada?"
"To the Siesta del Tarde Auto Court."
"And then what did you do?"
"I telephoned Paul Drake that the subject was registered at the Siesta del Tarde Auto Court under the name of Frank Kerry."
"And then what?"
"Then Perry Mason and his secretary, Della Street, showed up and I told them where the defendant was and they went to his room."
"Then what?"
"Then the Mexican police came."
Bailey smiled. "Cross-examine," he said to Mason.
Mason said, "Your wire recording gives only one side of the conversation?"
"That's right."
"You don't know whom the defendant was calling?"
"No, sir."
"You don't know what words were used on the other end of the line?"
"No, sir."
"That's all," Mason said.
Judge Alvarado said, "It is now time for the evening adjournment. I congratulate counsel for both sides on the speed with which this trial is progressing.
"During the evening the jurors will not converse among themselves or with anyone else about the case, nor will they read newspaper accounts of the trial or listen to anything on radio or television pertaining to the trial. They will avoid forming or expressing any opinion until the case is finally submitted for a decision. If anyone should approach any of you jurors to discuss the case, report that matter to the Court.
"Court will take a recess until ten o'clock tomorrow morning."