“When did you first realize that it wasn’t Fred Milfield?”
“When I saw Milfield dead there in Roger Burbank’s yacht.”
Mason said, “And you first told the officers that Milfield came back in the yacht’s dinghy. It was when the officers pointed out to you that it was an impossibility for Milfield to have done so, because Milfield was lying dead on Roger Burbank’s yacht, that you decided the man whom you had seen in the dinghy was Roger Burbank. Isn’t that right?”
“Yes, sir. I guess when you come right down to it, that’s right.”
Mason said, “It was Roger Burbank’s habit to take his yacht out Friday at noon?”
“Yes, sir. He used his yacht just to get away from people.”
“Did Fred Milfield join him on occasion?”
“Well, yes, Mr. Milfield did, and perhaps once or twice during the year Mr. Beltin would come out, but only when there was something terribly important. Mr. Burbank didn’t like it.”
“How do you know he didn’t?”
“He told me so. He told me he’d got that yacht so that he could get away from everything. He said that now he couldn’t get gasoline, he had this sailboat, and he’d sail out just a mile or so up the estuary and anchor on the mud flats. He said the minute he got out of sight of the yacht club, he felt like a new man. He felt as though he was off all by himself.”
“You say he anchored on the mud flats?”
“Yes. He liked to spear sharks.”
“Would he keep the boat anchored on the mud flats?”
“No, sir. He’d just anchor it there a couple of hours before high tide, and keep it there for maybe a couple of hours after high tide.”
“Why?”
“Well, out on those mud flats the water gets pretty shallow around low tide, and a boat would go on the ground if you left it there during low tide.”
“That wouldn’t necessarily hurt anything, however?”
“No, sir. Not unless a wind came up. If a wind came up a boat could get a nasty pounding there.”
“Even in such shallow water?” Mason asked.
The witness smiled and said, “Shallow water would give it the worst pounding. You see, the waves would build up enough so the crests would pick it up off the mud, and then when the troughs of the waves came along, the boat would slam down on the mud. A boat that’s slap aground in no water at all is all right. A boat that’s floating is all right. But you take a boat that’s aground in shallow water where waves can build up, and that boat’s going to take a terrific beating.”
“Well then, where would Mr. Burbank go during periods of low tide?”
“He’d anchor out in the channel just fifty or a hundred yards away from the place where he usually speared his sharks.”
“Now on this Friday night, do you know when the tide was low?”
“Yes, sir.”
“When?”
“Well now, I can’t give you the exact hour and minute, but it was high tide right around five-forty, somewhere around there. It might have been five-forty-one or perhaps five-forty-five, but that wouldn’t miss it a minute or so. Make it five-forty, and you won’t miss it two minutes either way.”
“That was high tide?”
“Yes, sir.”
“And when,” Mason asked, “was low tide?”
“Low tide was at three minutes past midnight on Saturday.”
“Then,” Mason said, “if anyone had been going to move the yacht away from those mud flats, the yacht would necessarily have been moved within two hours of high tide? And that would mean by seven-forty in the evening?”
“Well, not necessarily. I’d say you could have got off — well, say up until eight o’clock. That would be the limit.”
“And if you didn’t get off by eight o’clock you wouldn’t get off?” Mason asked.
“That’s right. Not until a couple of hours before the next high tide.”
“And when was the next high tide?”
“Six-twenty-six a. m. Saturday morning.”
“And when was the next low tide after that?”
“Twelve-forty-five Saturday. That’s how the body came to be discovered.”
“You might tell me a little more about that,” Mason said.
“Well, it was along about ten o‘clock in the morning. I guess it was. And the boat had begun to settle a little on the mud bank. Maybe around ten-thirty.”
“Now by the boat, you mean the yacht?” Mason asked.
“That’s right. Roger Burbank’s yacht.”
“All right,” Mason said. “Go ahead. The yacht had begun to settle on the mud, and what happened?”
“Well, it seemed some man by the name of Palermo had an appointment with Milfield, and...”
“This is all the rankest sort of hearsay,” Linton interrupted.
“Do you want to object to it?” Mason asked.
“I don’t wish to be put in the position of objecting to anything so trivial.”
Mason said to the judge, “Some of this is probably hearsay. Your Honor, but I’m simply trying to get a picture of what happened, and get it in the most expeditious manner.”
“But we’re going to call Frank Palermo, the witness who discovered the body,” Linton argued. “You can ask Palermo what he saw.”
“I’m not going to ask this man about what Palermo saw,” Mason said. “I’m going to ask him about when he met Palermo and what Palermo said. And I’m simply asking him about these other matters so that we can clarify the situation and have a clear picture before the court. I want to present a chronological sequence of events.”
“And why do you want to clutter up the record with a lot of testimony about what Palermo was doing after he discovered the body?” Linton asked.
“Because,” Mason said, smiling, “I might uncover some fact that was favorable to the defense.”
Linton said sarcastically, “This witness doesn’t know anything favorable to the defense, and no other witness who gets on the stand and tells the truth will know anything that’s favorable to the defense. No one knows anything favorable to the defense.”
“If he did,” Mason observed, “he’d probably be taking his vacation.”
A roar of laughter was silenced by Judge Newark’s gavel. “Counsel will refrain from these side comments. Do you wish to make an objection, Mr. Linton?”
“No, I’m not going to be put in the position of objecting to this testimony, Your Honor.”
“If Counsel for the People doesn’t object, the Court will hear enough of it to get the general background,” the judge ruled. “Go ahead and answer the question.”
“I’ll put it this way,” Mason said. “You were the first person to talk with the man who had discovered the body?”
“I believe so, yes.”
“Tell us exactly what happened.”
“Well, it was Saturday morning around ten-thirty, I guess. I didn’t look at the time. And I saw this boat coming up the estuary with a man standing up sculling.”
“Anything that directed your attention to this boat particularly?”
“Yes.”
“What?”
“The way the man was sculling.”
“And what about it?”
“All this is incompetent, irrelevant and immaterial. It has no bearing whatever on the case,” Linton objected.
“Overruled.”
“Well, there aren’t very many people that can make a really good job of sculling a boat, and this man was sculling right along. That boat was really cutting through the water. And another thing that interested me was the type of boat.”
“What sort of a boat was it?” Mason asked.
“It was a folding boat — one that is made to be folded and carried in an automobile.”
“And who was the man in the boat?”
“When he came closer, he started to talk — all excited — a lot of foreign accent — said his name was Frank Palermo, that he was from up in the Skinner Hills district, and that he had an appointment with Milfield on a yacht, and...”