Erle Gardner - The Case of the Troubled Trustee

"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.

"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."

"Are you familiar with the location of tee number seven?"

"Yes, sir."

"In order that there may be no mistake about it," Mason said, "I show you this map which has been introduced in evidence and ask you to notice the cross street nearest your house and the location of tee number seven."

"Yes, sir, I see it."

"About how far are you located from tee number seven?"

"About a hundred and fifty yards."

"Cross-examine," Mason said.

Hamilton Burger, on his feet, managed to get an expression of puzzled perplexity on his face as he turned to the judge and said, "If the Court please, I move to strike out this entire evidence as being incompetent, irrelevant and immaterial."

Judge Alvarado turned to Mason. "Do you care to explain your reason for calling this witness, Mr. Mason?"

"I will be glad to," Mason said. "The autopsy surgeon has testified that death occurred between ninethirty in the evening and two-thirty A.M. the following morning.

"On cross-examination, the autopsy surgeon admitted that a doctor couldn't fix the time of death as accurately as if one was standing by with a stopwatch. Death could conceivably have occurred at nine o'clock in the evening.

"The defendant has testified that Palmer was dead when the defendant arrived on the scene. Death could well have occurred an hour earlier."

Hamilton Burger laughed and then apparently tried to control himself with an effort. "All of this," he said, "is predicated upon the fact that somebody heard an automobile backfire or a distant sonic boom or a tire blowing ouu and under the persuasive influence of counsel's suggestion has been led to believe that it was a shot. And now he wants this jury to believe not only that it was a shot, but that it was the fatal shot. I submit, Your Honor, that this evidence is far too nebulous and fantastic, far too conjectural to even be cluttering up the record, let alone influencing the jury."

Judge Alvarado shook his head. "I think your argument goes to the weight rather than the admissibility of the evidence, Mr. Prosecutor. The Court is going to allow the evidence to remain in. You may, of course, further amplify your point by cross-examination."

Hamilton Burger heaved a sigh, as much as to indicate to the jury the tribulations with which a district attorney had to contend, then turned to the witness. "How do you know it was nine o'clock?" he asked.

"I was out on the porch smoking and suddenly realized it was time for a favorite television program."

"What kind of a program?"