Erle Gardner - The Case of the Moth-Eaten Mink

“Oh, no,” Hamilton Burger said, “that’s one question I have no intention of asking.”

“Why not?” Judge Lennox asked.

“Because if Mr. Mason should deny that it was Dixie Dayton he would be testifying as my witness. I am only going to ask Mr. Mason questions to which I already have the answers, and the correct answers, so that if Mr. Mason seeks to crucify me by betraying my case in his testimony I have it in my power to send him to prison for perjury.”

“I take it,” Judge Lennox said, smiling, “I opened the door for that, Mr. District Attorney. I take it you wish to convey that threat to Mr. Mason, and I gave you a good opportunity to do so.”

Hamilton Burger was grim. “The fact remains that I have stated my position.”

“You have indeed,” Judge Lennox said.

There was another period of silence; then Judge Lennox turned to Perry Mason. “I think I’d like to hear your position in this, Counselor.”

“As attorney for the defendant Morris Alburg,” Mason said, “I would point out that he isn’t bound by any statements made by Dixie Dayton.”

“As a co-defendant and a conspirator, I claim that he is,” Burger retorted.

Mason smiled. “Would you contend that any individual could walk into a hotel room and state that His Honor, for instance, was out committing a murder, and then seek to prove His Honor guilty of the murder by producing the corpse, and a recording of that conversation?”

“That’s different,” Burger snapped.

“Then would you mind stating exactly how it strikes you as being different?”

“But how about the defendant Dixie Dayton?” Judge Lennox asked.

Mason said, “Your Honor, Dixie Dayton, if she had been in that room and if she had said that Morris Alburg was out committing a murder, would still not be subject to any prosecution and the evidence could not be introduced in this manner unless she was a party to that murder.”

“But she was,” Hamilton Burger said.

“Prove it,” Mason snapped.

“That’s what I’m trying to do.”

“Then do it in an orderly manner. Get your cart and then get your horse, but don’t put the cart in front of the horse.”

“Now, just a minute,” Judge Lennox said, “there’s a peculiar situation here. I can see Mr. Mason’s point. It’s a carefully thought out point and it seems to be sound.”

“But, Your Honor,” Hamilton Burger protested, “can’t Your Honor realize the situation? Perry Mason was in that room with Dixie Dayton. Dixie Dayton stated in so many words, and I can assure Your Honor that that is a fact because we have those words recorded, that Morris Alburg was murdering or was going to murder George Fayette. Shortly after that George Fayette was found murdered, and there is ample evidence connecting Morris Alburg with the crime.”

“That’s all very nice,” Judge Lennox said, “but first you not only have to prove that it was the defendant Dixie Dayton who made the statement, but, as Mr. Mason points out, there must be some privity, some connection, some conspiracy.”

“Of course, as far as the element of conspiracy is concerned, we’re going to prove it by circumstantial evidence. We can’t introduce a tape recording of the two defendants sitting down and saying in effect, ‘Let’s go murder George Fayette.’ We have to prove that by declarations and conduct of the parties.”

“Of course,” Judge Lennox said, “you could simplify the situation by asking Mr. Mason if, at a certain date, Dixie Dayton, the defendant in this case, did not say to him so-and-so and such-and-such.”

“I don’t know what Mr. Mason’s answer would be to that question. He might deny it and then I would be in a position of trying to impeach my own witness. I don’t want to do that. I do want to keep the issues within such narrow limits of proof that Mr. Mason will either answer the questions in accordance with the facts as I understand them, or Mr. Mason will subject himself to a prosecution for perjury.”

“Yes,” Judge Lennox said, “I can see your point. I recognize the situation — I may say the dilemma — but the fact remains that it must be solved according to established rules of legal procedure. I think I am going to hold that this witness cannot be forced to answer that question over the objection of Counsel for both defendants. I feel that there must be some further proof of conspiracy before the conversation can be admitted. Are there any further questions of this witness?”

“Not at the moment,” Hamilton Burger said.

“Very well, Mr. Mason, you’re excused from the witness stand,” Judge Lennox said, “and may resume your position as Counsel for the defendants.”

“Subject to being recalled later after more foundation has been laid,” Hamilton Burger said.

“That is my understanding of the situation,” Judge Lennox ruled. “Go on with your case.”

“I want to call Frank Hoxie as my next witness.”

Frank Hoxie, the night clerk at the Keymont Hotel, was sworn, took the witness stand, and gave his name, address and occupation in a bored tone of voice.

“Are you acquainted with either of the defendants in this case?”

“Yes, sir.”

“With which one?”

“With both.”

“What were you doing on the second and third of the present month?”

“Working as a night clerk in the Keymont Hotel.”

“What time did you go on duty?”

“At nine o’clock in the evening.”

“What time did you go off duty?”

“At eight o’clock in the morning.”

“Now when did you first meet the defendant Morris Alburg?”

“A couple of days before...”

“Try and make it an exact date.”

“On the first of the month.”

“Where did you meet him?”

“I was at the hotel.”

“At the desk?”

“Yes, sir.”

“On duty as a night clerk?”

“Yes, sir.”

“And what conversation did you have with Mr. Alburg?”

“He came in and asked for a room. He said his sister-in-law had come to pay him an unexpected visit, and that he wanted to rent a room which she would occupy.”

“Under what name did he register?”

“Under the name of Mrs. Madison Kerby.”

“You assigned him a room?”

“Yes, sir.”

“What room?”

“Room 815.”

“That was the room in which the body of George Fayette was subsequently discovered?”

“Yes, sir.”

“Did you ever meet the person whom Morris Alburg said was his sister-in-law?”

“Yes, sir.”

“When did you meet her?”

“The defendant, Miss Dayton, came to the desk and said she was Mrs. Madison Kerby, and asked for the key to room 815. I gave her the key.”

“That was the defendant?”

“Dixie Dayton, one of the defendants, the one who stood up a minute ago.”

“When was that room given up?”

“You mean by the defendants?”

“Yes.”

“It was never given up. They kept the room until the date of the murder, when they were arrested.”

“Did you tell the police who had rented that room?”

“The police were after me pretty hard to find out who had rented it.”

“What did you tell them?”

“I told them I’d never seen the people before and didn’t know who they were.”

“Was that true or false?”

“It was true.”

“Perhaps,” Burger said, “you can tell us something of what happened on the evening of the second and the morning of the third.”

“It was on the morning of the third instant that Perry Mason came to the hotel.”

“At about what time in the morning?”

“Sometime around two-thirty in the morning, I think.”

“Was the defendant Dixie Dayton in the hotel at that time?”