"It is your contention that I am to be deprived of my right to cross-examine Mr. Ellis?"
Hamilton Burger took a deep breath. "Very well," he said, "I"ll stipulate that the entire testimony of Helman Ellis may go out. I"ll withdraw him as a witness. I"ll strike all of his evidence out of the record."
"I won"t agree to that," Mason said. "I won"t so stipulate.""
"Why not?"
"Because I want to cross-examine him."
Hamilton Burger glowered at Mason, then turned toward the Court.
Judge Keyser said, "It is past the hour of the evening adjournment by some minutes, Mr. Burger. I can appreciate the prosecutor"s position, but the fact remains that the defense attorney has the right to cross-examine all witnesses called by the prosecution.
"Because I have some commitments and pre-trial conferences at this time and because I know some of the officers of the court have engagements, I am going to adjourn court at this time but I am going to reconvene at eight o"clock tonight. We are going to have an evening session. I think under the circ.u.mstances the prosecution is ent.i.tled to have its case presented expeditiously."
"The defense objects," Mason said. "It is inconvenient for me personally, and I feel that the defendant is being deprived of her rights."
Judge Keyser shook his head. "I"m not going to permit any technicalities to stand in the way of getting this matter disposed of. The Court will take a recess until eight o"clock this evening, at which time all persons under subpoena in this case will return to the courtroom.
"Court"s adjourned."
CHAPTER THIRTEEN.
Mason paced the office floor in frowning concentration.
Della Street presided over an electric coffee percolator. A paper bag of doughnuts was on the office desk.
From time to time Mason would stop, take a few sips from a cup of coffee and munch on a doughnut.
"You"re going to need something more nourishing than that," Della Street said anxiously. "Let me go down to the restaurant and get you a ham sandwich or a hamburger or--"
Mason motioned her to silence with a wave of his hand, once more resumed his pacing of the floor.
After nearly a minute he said absentmindedly, "Thanks, Della." And then after some two minutes added, "I"ve got to think."
"Can I help by asking questions?"
"Try it," Mason said. "No, wait a minute. I"ll ask you the questions. You give me the answers. Let"s see if I can detect anything wrong."
She nodded.
Mason whirled abruptly, stood facing her with his feet spread apart, his shoulders squared, his manner one that he sometimes used in cross-examining a witness.
"That gun Ellen Robb had," he said, "was locked in our safe from the time Ellen Robb entered the office until we returned it with one exception--when Drake took it to the ballistics expert. Now then, how could a bullet from that gun be in Nadine Ellis" body unless Ellen Robb fired it there?"
"It couldn"t," Della Street said. "The time has come, Chief, when you"ve got to throw your client overboard. She"s committed murder and she"s lied to you."
"Now then," Mason went on without noticing Della Street"s answer, "I took a gun out of my safe, a gun that we"ll call the Loring Crowder gun. She put that gun in her purse. A bullet from that gun was also found in the body of Nadine Ellis. How did it get there?"
"The bullet was fired from the gun," Della Street said, "that"s how it got there," and then added quickly, "not that I"m trying to be facetious, Chief. I"m just pointing out that the striation marks on the bullets show that it was fired from that gun. We have to face facts and we may as well face them now."
"All right," Mason said, "it was fired from that gun. Who fired it?"
"Ellen Robb had to fire it."
Mason said, "One thing we know for a fact and that is, the bullets couldn"t have been fired simultaneously. They must have been fired after a very considerable time interval, probably an interval of hours. That"s one thing we know that the police and the district attorney don"t know. We have that much of an advantage."
"Why is it an advantage?" Della Street asked.
"Because we know something about sequence. We know that the bullet from the Crowder gun must have been fired into Nadine Ellis" dead body. Now then, once we establish that, Della, I"m not tied up with anything except being an accessory to having fired a bullet into a dead body. That"s perhaps a misdemeanor--I haven"t looked it up. Certainly it isn"t homicide of any sort or an attempt to commit homicide."
Della Street nodded.
"On the other hand," Mason said, "I"m hoist by my own petard. Here I have been talking about this freak decision that holds that it"s not murder to fire a bullet that would prove fatal into the body of a victim, if some independent agency fires another bullet into the victim and that second bullet results in death. I am a.s.suming, of course, that the first person could be charged with a.s.sault with intent to commit murder. However, because I dug out these decisions, no one is going to believe anything I may say. The sequence is too, too d.a.m.ning. It looks as if I had tried to save a client by legal skulduggery and the juggling of evidence."
Della Street said, "Ellen Robb was sitting right here in the office when you were talking on the telephone with Darwin C. Gowrie, the attorney for Nadine Ellis. She heard you tell all about the subtle distinction in the decisions. She made notes in shorthand. You weren"t advising her, you were advising Gowrie.
"Let"s a.s.sume Ellen is a very smart young woman. She had killed Nadine Ellis with one shot fired from the gun which she said she had found in her baggage. When you juggled guns on her she knew it, and she took advantage of your attempt to aid her by taking the second gun--the Crowder gun which you had subst.i.tuted in place of the gun she had when she entered the office-- and went out and fired a second bullet into the body of Nadine Ellis."
Mason suddenly snapped his fingers. "We"re overlooking one thing," he said. "We may have the time element all c.o.c.keyed."
"How come?" she asked.
"Suppose," Mason said, "the bullet from the Anc.l.i.tas gun was fired into Nadine Ellis" body after the bullet from the Crowder gun?"
"It couldn"t have been," Della Street said.
"Why not?"
"Because that gun was locked in our safe after you gave the Crowder gun to Ellen Robb."
"No, it wasn"t," Mason said. "There"s one very suspicious circ.u.mstance about that gun which we"re overlooking. We took it down to Anc.l.i.tas" place and planted it in the women"s room."
Della Street"s eyes became animated.
"Suppose we do have the order of the bullet wounds reversed," she exclaimed. "Suppose the first bullet was from the Crowder gun. Then the second bullet must have been from the Anc.l.i.tas gun."
Mason nodded.
"Then you mean after the gun was returned to the powder room, George Anc.l.i.tas took the gun, went out and fired a second shot into the dead body of Nadine Ellis?"
Mason nodded.
Della Street"s eyes were sparking now. "That would account for the fact that he said nothing about having found the gun in the powder room. He must have missed it and must have had a pretty good idea of what had happened."
"What had happened?" Mason asked.
"That Ellen Robb had killed Nadine Ellis with it."
"But if this theory is correct," Mason said, "she wasn"t killed with that gun. She was killed with the Crowder gun."
"All right," Della Street said, "we won"t try to figure out how George knew Nadine Ellis was dead. But he did, for reasons of his own, take that gun, go out and fire another bullet into the dead body of Nadine Ellis."
"Now, wait a minute," Mason said. "You say he went out and did it. Remember that Nadine Ellis was out on a yacht and, figuring the dry fuel tank, the fact that the fuel tank had been filled when Helman Ellis and his wife were planning to take a cruise, the location of the boat, the yacht must have been out at sea for some time, and it would have been a physical impossibility for Anc.l.i.tas to have taken the gun after we returned it, found the yacht and fired the second bullet. But if that had happened, the marks I made in the barrel with the etching tool would show up. Redfield would have noticed them."
"Then," Della Street said, suddenly discouraged, "it must have been done before, and your client has to be the one who did it."
Mason shook his head. "I"m still fighting for my client, Della."
Della Street said, "She"s a millstone around your neck. You"d better cut her loose and start swimming. After all, you acted in good faith. You thought that Anc.l.i.tas had planted a gun in her things and was going to accuse her of stealing that gun. You wanted to cross him up."
Mason nodded. "I wanted to handle the situation in such a dramatic manner that we would teach George Anc.l.i.tas a lesson," he said. "You can see how my unorthodox tactics backfired."
"But can"t you explain what you were trying to do when you get on the witness stand?"
"Sure, I can explain," Mason said, "but no one is going to believe me. Bear in mind that I had previously pointed out that when two independent agencies fired bullets into a body, only the person firing the last shot was guilty of murder, provided the first shot hadn"t proven instantly fatal.
"The circ.u.mstantial evidence certainly indicates that Ellen Robb came to me, that she told me she had killed Nadine Ellis, that I told her to give me the gun, that I gave her another gun and told her to go out and fire another shot into the body of Nadine Ellis, that I intended to use my trick defense. Also that I then went back and planted the gun in George Anc.l.i.tas" place of business hoping that he would make a commotion about it and I could involve him in the murder."
"Well, what are you going to do?" Della Street asked.
"I wish I knew," Mason said. "All I know is, I"m go. ing to go down fighting and I"m not going to throw my client overboard."
"Not even to save your own skin?"
Mason shook his head.
"You"ll be disbarred."
"All right then," Mason said. "I"ll find some other line of work. I"m not going to betray a client. That"s final."
"Not even to tell the true facts?"
"I"ll have to tell the true facts," Mason said. "I can keep them from finding out what my client told me. Any conversations we had are privileged communications. As my secretary you share in the professional privilege. They can"t make me tell anything that my client said for the purpose of getting me to take the case or any advice that I gave her."
"But they can ask you if you subst.i.tuted guns?" Della Street asked.
"There," Mason said, "I"m stuck. Unless I refuse to answer on the ground that to do so would incriminate me."
"Well, why not do that? They can"t prove anything except by inference."
Paul Drake"s code knock sounded on the exit door of Mason"s private office, and Mason nodded to Della Street. "Let Paul in, Della. Let"s see what he knows, if anything."
Della Street opened the door.
Paul Drake, looking as lugubrious as a poker player who has failed to fill a straight which was open at both ends, sized up the situation, said, "Hi, folks," walked over to the paper bag, abstracted a doughnut and accepted the cup of coffee that Della Street handed him.
"Well?" Mason asked.
Drake shook his head. "This is the end of the road, Perry."
"What do you know?" Mason asked.
"This time you have a client who really and truly lied to you. She"s in it up to her beautiful eyebrows and she"s dragged you in it with her."
"How come?" Mason asked.
Drake said, "She and Helman Ellis were really ga-ga. Anc.l.i.tas is telling the truth."
"Go on," Mason said, as Drake paused as though groping for the right words in which to go on.
"You remember," Drake said, "when Ellen Robb came to you after she had been thrown out of The Big Barn and had the shiner?"
Mason nodded.
"She told you she had taken a taxi to the Surf and Sea Motel and you told her to go back there?"
Again Mason nodded.
"Well," Drake said, "when she first went to the Surf and Sea Motel, it was to meet Helman Ellis."
Mason resumed pacing the floor. "How long was Ellis there?" he asked Drake.
"About half an hour."
Suddenly Mason shook his head. "That doesn"t mean necessarily that my client was lying," he said. "It means that Helman Ellis was following her."
Drake said, "This is the part that hurts, Perry. He wasn"t following her. He arrived before she did."
"What?"
"That"s right."
"How do you know?"
"My operative talked with the man who runs the place. Now that Ellen Robb has been arrested, he"s beginning to think back in his own mind, trying to recall things that would indicate either that Ellen was an innocent young woman who is being framed or that she was guilty. He"s naturally interested in the whole situation and he remembered that before Ellen Robb showed up on Tuesday night, a car drove up to the motel, turned in at the entrance, circled through the grounds and then went out, as though the driver might have been looking for someone. At first he thought the man was going to register and ask for a room, so when the car slowed down, this manager jotted down the license number on a scratch pad."
"The license number?" Mason asked.
"That"s right," Drake said. "You know the way they register in motels. The man writes down his name and address and the make and model of his car and the license number.
"Nine people out of ten forget the license number and it"s something of a nuisance because the manager has to go out and look at the license plate and jot down the number. So this fellow keeps a pad of scratch paper by the desk, and when a car drives in, there"s a powerful light shining on the car from the porch of the office. The manager automatically jots down the license number and then when the people register he doesn"t have to go out and look at the license number in case they"ve forgotten it. And in case they give him a phony license number, he knows it immediately and can be on his guard."