MacIntosh returned to the witness stand.
“You were given a can of flour a few minutes ago by Lieutenant Tragg?” Hamilton Burger asked.
“Yes, sir.”
“What did you do with that can of flour?”
“I wanted to photograph the can and develop latent fingerprints on it, so I dumped out the flour.”
“What did you find?” Burger asked.
“I found currency in bills of fifty and one hundred dollars, making a total of $23,550.”
There was a stir of excitement in the jury box.
“Where are those bills now?”
“In the police laboratory.”
“Cross-examine,” Hamilton Burger snapped.
“No questions,” Mason retorted promptly, and then smiling at the judge, said, “And now, Your Honor, the defense has no objection whatever to consenting to the continuance which the prosecution has requested.”
“The prosecution doesn’t want it now,” Burger said shortly. “The prosecution rests.”
“The defense rests,” Mason said promptly. “It is four-thirty. I will stipulate that, so far as the defense is concerned, arguments on each side may be limited to ten minutes.”
“I’m not prepared to argue the case at this time, or in that short a time,” Hamilton Burger said. “The recent startling developments have been such that I would like more time to correlate the various matters which have been discovered.”
“Then why,” Judge Lankershim asked, “did you object to an adjournment when the defense suggested it?”
Burger said nothing.
“Apparently,” Judge Lankershim went on, “you wanted to see what the evidence of the defense would be. Counsel consented to a continuance, and you rejected it.”
“But, Your Honor,” Hamilton Burger protested, “I felt that I was in a position to go ahead with the case so far as the cross-examination of the defendant’s witnesses were concerned, but that I was not prepared to argue the case.”
Judge Lankershim shook his head. “Court will adjourn at five o’clock. You may proceed with your argument. The Court will limit the argument to twenty minutes to each side.”
Hamilton Burger accepted the ruling of the Court, marched up to a position in front of the jurors and said, “In view of the limitation which has been placed on the argument, and the unexpected developments in this case, I am not prepared to make an extensive opening argument. I will conserve my time so as to make a longer closing argument. I will state, however, that the circumstantial evidence shows conclusively the defendant in this case and her employer, Perry Mason, were engaged in activities which included spiriting away material witnesses. What was done with the witness Lunk is virtually uncontradicted. The defendant is not on trial for that, but her willingness to spirit away a witness is shown by the manner in which she and her employer got the witness Lunk away from the police and endeavored to keep him in concealment.
“We are asking for a conviction of the defendant upon the evidence as it now stands. Regardless of what Franklin Shore may have done, I don’t think any person on this jury doubts that Della Street’s purpose in going to the residence of Thomas Lunk in the small hours of the morning of the fourteenth was to spirit Franklin Shore away. The Court will instruct you that it is not necessary that the attempt be successful in order to constitute a crime under sections 136 and 136.2 of our Penal Code. The spiriting away of a witness, with the intent of preventing him from testifying at a proper legal proceeding or an investigation, constitutes a crime.
“That, ladies and gentlemen, is the contention of the prosecution. If the defendant wishes to adopt the position that Franklin Shore had already left the premises before Della Street’s arrival, it is incumbent upon the defense to assume the burden of proving that fact.
“I will not consume any more time now, but will reserve such time as I have left for my closing argument.”
Burger, glancing triumphantly at the clock, and realizing that he had jockeyed Perry Mason into the position of completing his opening argument prior to the evening adjournment, leaving the prosecution in the advantageous position of being able to sleep over the developments, before making its closing argument, marched back to his chair and sat down.
Mason slowly got to his feet, walked deliberately over to the jury box and smiled at the puzzled jurors.
He opened quietly. “The prosecution can’t shift the burden of proof to the defendant until it has first proven the defendant guilty beyond all reasonable doubt.
“I submit to you, ladies and gentlemen, that Franklin Shore was not present at Lunk’s residence when Della Street arrived there. The reason I have introduced no testimony is that the evidence of the prosecution proves my point conclusively.
“I will not comment on the evidence of the flour. I will comment only on the actions of the kitten. Someone opened the flour can. Some object was placed in that can, perhaps the gun, perhaps the currency, perhaps both. The kitten, a playful, careless, fearless animal, attracted by the motion of the hands over the can of flour, jumped into the flour can and was promptly tossed out. The kitten thereupon ran through the partially opened door, into the back bedroom and jumped upon the bed.
“It must be perfectly obvious that the bed was then vacant, equally obvious that the kitten forthwith jumped down on the other side of the bed and went directly through the bathroom to jump on the bed in the front bedroom.
“Ladies and gentlemen, I will ask the prosecution, since this is a case of circumstantial evidence, to explain one thing to you — and preparatory to that, let me remind you that inasmuch as this is a case of circumstantial evidence, the law is that you must acquit the defendant unless the evidence not only indicates beyond all reasonable doubt the guilt of the defendant, but cannot be explained upon any reasonable hypothesis other than that of her guilt. Therefore, ladies and gentlemen, why did the kitten, after getting in the flour and after jumping on the bed of Franklin B. Shore, leave that bed to go into the front bedroom and curl upon the bed in there?
“Having relied upon circumstantial evidence, it is up to the district attorney to explain every bit of it. Therefore, in the morning, let the district attorney answer that interesting question as to the conduct of the kitten. And some of you, who are quite probably familiar with cats, their psychology, their habits, will doubtless have an answer of your own.
“And that, ladies and gentlemen, concludes my argument.”
Several of the jurors looked puzzled, but two of the feminine members were nodding and smiling as though they had already grasped the point which was causing Hamilton Burger to scowl blackly.
Judge Lankershim himself seemed also to have some knowledge of kittens, for there was a smile playing about the corners of his lips, and a twinkle in his eyes as he admonished the jurors not to form any opinion as to the merits of the case, not to discuss it among themselves, or permit it to be discussed in their presence, and adjourned court until the next day at ten o’clock, remarking that the defendant was on bail and would be released upon that same bail until the next morning at ten o’clock.
Chapter 23
As soon as court had adjourned and the Judge had left the bench, Hamilton Burger came pushing his way across to Mason.
“Mason, what the devil does this mean?”
Mason smiled affably. “I’m sure I couldn’t say, Burger. All I’m doing is defending Miss Street against a criminal charge. I don’t think the jury will convict her, do you?”
Burger said, “To hell with that. We all have a duty to perform — apprehending a murderer. Did Franklin Shore do it?”
“I’m sure I couldn’t tell you.”