“So stipulated,” Mason said.
“So stipulated,” Burger announced.
Mason arose. “Your Honor, before we proceed with the trial of this case, I have a matter which I wish to call to the attention of the Court. It concerns a witness, a potential witness for the defense. We have been unable to find this witness no matter how we searched, and...”
“Give me the name of the witness,” Burger said. “Tell me what you expect to prove by him and perhaps I will stipulate to it.”
Mason said, “The name of the witness is Irene Kilby. She has, however, gone under the professional name of Cherie Chi-Chi and more lately has for some time been masquerading under the name of Lois Fenton. She has used clothes that are identical in appearance to those of Lois Fenton, she has made appearances under the name of Lois Fenton and has in every way tried to arrange her appearance so that she can be mistaken for Lois Fenton. We propose to prove that she, this witness, was in the Richmell Hotel on the night of the murder at the hour of approximately 2:20 in the morning.”
“And how do you propose to prove that?”
“By the witness herself.”
“It will be interesting to see you try,” Burger said.
Judge Donahue frowned. “I fail to see the necessity of making such a statement at this time and in front of this jury, Mr. Mason.”
“The reason I am making this statement, Your Honor, is that I have just discovered that the reason we have been unable to find this witness no matter how much we searched, is that the police have been holding her incommunicado.”
“Do you mean that the police have been concealing her?” Burger demanded indignantly.
“As far as we’re concerned, yes.”
“Your Honor, I resent that. The law specifically gives the prosecution the power to hold material witnesses and this is a material witness for the prosecution.”
“I challenge that statement,” Mason said.
Burger, red in the face, shouted, “I’ll make it again. This woman is a material witness.”
“You admit that she was kept concealed under such circumstances that I would not be able to find out where she was?” Mason asked.
“We don’t have to write you every day and tell you what we intend to do in putting on our case,” Burger said. “I say, Your Honor, that this woman is a material witness.”
“What’s she a witness to?” Mason asked.
“To certain things that she will disclose when she gets on the stand.”
“You don’t intend to put her on the stand.”
“I do.”
“Put her on now then,” Mason said.
Burger said, “I don’t have to put her on now.”
“Go ahead,” Mason challenged. “If she’s a witness to anything for you, put her on that witness stand. Let’s hear what she has to say. Then you’ll be finished with her and I can talk to her and put her on the stand as a witness for the defense.”
Judge Donahue looked questioningly at Hamilton Burger.
“I’ll put her on the witness stand when I get good and ready,” Hamilton Burger said.
“Will you promise this court that you are going to put her on the witness stand?”
“I don’t have to make any such promises.”
“There you are, Your Honor. The woman is not a witness.”
Judge Donahue said, “After all, Mr. District Attorney, while the order of proof ordinarily is in the hands of the district attorney, it certainly seems to me that if this woman is a material witness for the prosecution, and the defense desires to question her, that it would be much better to have the prosecution put her on the stand, take her testimony, and then release her so that the defense would be in a position to use her in the event they wished to do so.”
“The defense doesn’t want to use her, Your Honor. This is simply a grandstand.”
“I want to use her,” Mason insisted.
“What do you propose to prove by her? Perhaps I’ll stipulate it.”
Mason said, “I propose to prove by this witness that she was the one whom the witnesses have identified as being the defendant, the woman who was in this hotel at twenty minutes past two o’clock in the morning.”
“You can’t do it,” Burger said, “because these witnesses would know in a minute that this woman wasn’t the defendant.”
Mason said, “Bring her into court. Bring her in, dressed just as she was dressed when the woman was arrested, and by that I mean wearing clothes that were identical in cut, color, pattern and texture to those worn by the defendant.”
“All right,” Burger snapped. “You’ve asked for this. I’ll bring her into court. I’ll give you every opportunity. Your Honor, if we may have fifteen minutes I think at that time I will be able to grant counsel’s request. I will have Irene Kilby in court. I’ll let her parade up in front of the witnesses. Perhaps in the meantime, I can save time by calling another witness, Jasper Fenton. Come forward and be sworn, Jasper.”
Jasper Fenton, a droop-shouldered lad, who had an expression of bored cynicism deeply stamped upon his countenance, took the witness stand. He answered the preliminary questions in a monotone. Then as Burger began to bring him to the scene of the crime, the boy’s voice took on a slight nervousness.
“Where were you on the morning of the seventeenth of September this year?” Burger asked. “Were you in the Richmell Hotel?”
“Yes, sir.”
“At what time?”
“I believe it was exactly 2:44.”
“Where did you go?”
“I went to John Callender’s room. I mean I entered that room at approximately 2:44.”
“When did you leave?”
“Immediately.”
“Why did you leave?”
“I opened the door and saw him lying there, dead on the floor. I got out of there fast.”
“You had an appointment with him?”
“Yes, sir.”
“When did you have that appointment?”
“It wasn’t exactly an appointment. He sent for me to come and see him.”
“What time were you supposed to be there?”
“At two o’clock in the morning.”
“That was a definite appointment?”
“Yes. He said I was to be there at two on the second.”
“But you were late?”
“Yes, sir.”
“Why were you late?”
“I stopped for a few drinks to bolster my courage. I didn’t want to face him.”
“Why?”
“He was trying to blackmail my sister through me.”
“And by your sister you mean Lois Fenton, the defendant here?”
“Yes, sir.”
“She is your sister?”
“Yes, sir.”
“Let’s be frank about this,” Hamilton Burger said. “John Callender had some hold on you?”
“Yes, he did.”
“What was it?”
Fenton squirmed about on the witness chair. “I had been working for him. I had forged his name to some checks in order to cover a shortage. He had those checks. He was threatening to prosecute me.”
“Anything else?”
“When he kept hounding my sister through me, I became desperate. I took my sister’s horse and went to John Callender’s ranch. I rode up to the house and managed to get into the room where his records were kept. I had the safe opened when a night watchman came along the porch and saw my flashlight. He put the beam of his own flashlight through the window, spotted me at the safe and shouted for help. I ran out of the house, along the veranda, jumped into the saddle and started away at a gallop. The watchman shot.”
“What happened to the bullet?”
“It grazed the horse and lodged in the saddle.”
“You felt the impact of that bullet? You felt it hit?”