Erle Gardner - The Case of the Moth-Eaten Mink

“How was the corridor illuminated? What kind of lights?”

“It was a dim illumination, but I saw her all right, Mr. Mason. I looked at her. I made up my mind I’d take a good look at her, and I did.”

“You gave her just a glance, just as a maid might have looked up casually from her work?”

“Well, I–I took a good look.”

“A few moments ago,” Mason said, “you testified that you gave her a casual glance.”

“Well, with me, a casual glance is a good look.”

“I see. But it wasn’t good enough so you could positively identify her when you first saw that photograph?”

“A person hesitates to make a positive identification from a photograph.”

“That’s all,” Mason said.

“And now,” Hamilton Burger said, “I’ll call my main witness. Mr. Perry Mason take the stand, please.”

Mason unhesitatingly walked forward, held up his hand, took the oath and seated himself on the witness stand.

“This is, of course, a most unusual procedure,” Judge Lennox said.

“It’s a situation I tried to avoid,” Hamilton Burger pointed out. “I tried to avoid it by every means in my power.”

“To ask an attorney for the defendants to give testimony which would help convict the defendants is, of course, an anomalous situation,” Judge Lennox observed dubiously.

“That is the reason it is considered unethical for an attorney to act in a dual capacity,” Burger said. “I tried to spare Mr. Mason the embarrassment of being placed in such a position.”

“He is a necessary witness?” Judge Lennox asked.

“Absolutely, Your Honor. As the Court will realize from a contemplation of the evidence as it now stands in this case, it is necessary for me to prove the identity of the people who were participating in the conversation which took place in that room.”

“Of course, the conversation itself hasn’t been admitted yet.”

“That’s what I’m laying the foundation for, Your Honor.”

“Of course,” Judge Lennox pointed out, “the situation would be simplified if the defendants had some other attorney associated with Mr. Mason, who could assume charge of the defendants’ case at this point.”

“That would not be satisfactory either to the defendants or to me, Your Honor,” Mason said. “We’ve heard a lot of talk about ethics. Perhaps, if the Court please, I should quote from a California decision reported in 187 California 695, where the Court says:

“ ‘We are of the opinion that too much importance has been given, and too much irritation developed, over the fact that much of the evidence for the plaintiff was given by one of the attorneys in her behalf, as a witness in the case. So far as the court is concerned such testimony is to be received and considered, as that of any other witness, in view of the inherent quality of his testimony, his interest in the case, and his appearance on the witness stand.

“ ‘The propriety of a lawyer occupying the dual capacity of attorney and witness is purely one of legal ethics largely to be determined by the attorney’s own conscience. While it is not a practice to be encouraged, it may often occur that conditions exist in which an attorney cannot justly or fairly withhold from his client either his legal services or his testimony as a witness.’”

Judge Lennox seemed impressed by the citation. “Very well, Mr. Mason,” he said, “your position seems to be legally sound. In fact, from time to time you seem to find yourself in predicaments from which you extricate yourself by unusual methods which invariably turn out to be legally sound. The Court feels you are fully capable of looking after your own as well as your clients’ interests. We seem to be making judicial history as far as this court is concerned.”

“Mr. Mason,” Burger said, “I am going to ask you if, on the early morning of the third of this month, you were not present in room 721 at the Keymont Hotel?”

“I was.”

“Were you alone?”

“No.”

“A young woman was with you?”

“During a part of the time.”

“I believe she entered the room after you had arrived.”

“Yes, sir.”

“You went to the hotel?”

“Yes, sir.”

“Went to this room?”

“Yes, sir.”

“Entered the room?”

“Yes, sir.”

“And shortly afterwards this young woman arrived?”

“Yes, sir.”

“You went to that room at the request of Morris Alburg, one of the defendants in this case?”

“That question,” Mason said, “is improper. It, on its face, calls for a privileged communication between an attorney and client.”

“I think the Court will have to sustain that objection,” Judge Lennox said.

“I’m not asking him for the conversation. I’m simply asking him if he went there because of such a conversation,” Burger said.

“It amounts to the same thing,” Judge Lennox said. “You’re asking him, in effect, if his client told him to go to this room in the hotel. That, in my opinion, would be a privileged communication. After all, Mr. Burger, you must realize that there are certain peculiar aspects in this situation which are binding on you as well as on Counsel.”

“I understand, Your Honor.”

“Mr. Mason is occupying the dual role of a witness against his clients, and an attorney representing those clients. The Court will permit the examination of Mr. Mason as a witness, but the Court is certainly going to be very alert to safeguard the interests of the defendants.”

“Very well, Your Honor. Now, then, Mr. Mason, I am going to ask you if, while you were present in that room, the young woman who was present in that room did not state to you that Morris Alburg was at that time tracking down George Fayette for the purpose of killing him?”

“Now, to that question,” Mason said, “as attorney for the defendant Alburg, I interpose an objection that the question is incompetent, irrelevant and immaterial. As attorney for the defendant Dixie Dayton, I interpose an objection on the ground that if that woman was not Dixie Dayton the statement would be completely irrelevant and hearsay, and if the woman were Dixie Dayton it would be a privileged communication.”

“If the Court please, I had anticipated both of those objections,” Hamilton Burger said. “The evidence now shows that this woman was Dixie Dayton. Since the conversation related to a crime that had not as yet been committed, but which was about to be committed, the conversation was not a privileged communication. I am, of course, prepared to show the actual conversation. In other words, if Mr. Mason should deny that this statement was made I can impeach him irrefutably by producing the records which have been introduced in evidence, and playing that part of the conversation so that Mason will hear his own voice and the voice of the person who was in the room with him.”

“You can’t impeach your own witness,” Mason said.

“I can on a material point, but not on character,” Burger retorted.

“Suppose that person was not Dixie Dayton?” Judge Lennox asked the prosecutor.

“Minerva Hamlin has testified positively that it was Dixie Dayton.”

“That is the testimony of one witness.”

“But that’s the only testimony before the Court at this time,” Hamilton Burger pointed out.

Judge Lennox ran his hand up over his forehead, puckered his lips, swung halfway around in his swivel chair so as to avoid the eyes of Counsel, apparently trying thereby to improve his powers of concentration.

For several moments there was a tense silence in the courtroom.

Judge Lennox finally said, “Ask him the question. Put it right up to him. Was that woman Dixie Dayton, or wasn’t it?”