“That’s all,” Mason said. “No objection to the introduction of the records.”

  “I assume you mean Record Number One?” Judge Lennox said.

  “No, the whole batch,” Mason said. “A witness who is as truthful as this witness is quite likely to have an opinion I can trust. If he thinks these are the same records I’m willing to let them go in, subject to my right to object to any conversation that may be on those records as incompetent, irrelevant and immaterial, but the records themselves may be received in evidence.”

  Judge Lennox smiled and said, “Well, that’s refreshing candor on the part of Counsel—and on the part of the witness. Very well, the records will be received as evidence.”

  “Now, then, in regard to these records,” Hamilton Burger said, “there is a conversation in which the defendant, Dixie Dayton, states in so many words to Perry Mason that her codefendant, Morris Alburg, is out murdering George Fayette. I want the Court to listen to that conversation. I want the Court to note that Mr. Mason accepted this information and did absolutely nothing about it. He did not communicate with the police. He did not …”

  “Are you now trying to show that I am a conspirator?” Mason asked.

  “You’ve criticized my methods of preparing a case,” Burger said. “I want the Court to realize exactly what happened.”

  Mason said, “Then you’d better show it by evidence, not by a statement.”

  “You don’t deny that this conversation is on this record, do you?”

  “I deny that Dixie Dayton at any time told me her codefendant, Morris Alburg, was planning to murder George Fayette.”

  “But the record is right here. You can hear her voice.”

  “How do you know it’s her voice?” Mason asked.

  “I’m sure it is.”

  “Then get on the stand and testify it is, and I’ll cross-examine you, and the judge can reach an opinion as to your assumption that it’s the same person.”

  “I don’t have to do that,” Burger said. “I can do it another way.”

  “Go ahead and do it, then.”

  Burger said, “Miss Minerva Hamlin will be my next witness…. Miss Hamlin, come forward and be sworn, please.”

  Minerva Hamilton marched to the witness stand, her manner that of a young woman who is intent upon creating an impression of brisk competence.

  Under Burger’s questioning, she testified with close-clipped, precise, well-articulated words, telling her story in a manner which unquestionably impressed Judge Lennox.

  She described the emergency, the fact that she was called on to leave the switchboard and go at once to the Keymont Hotel, the arrangements that she made with Paul Drake by which she would flash an identification signal when the young woman in question started to leave the hotel, her acting the part of a maid in the hotel, and the time she spent watching room 721 in order to see who emerged from it.

  “And finally,” Hamilton Burger asked, “someone did emerge from it?”

  “Yes, sir.”

  “A man or woman?”

  “A woman.”

  “Did you have an opportunity to look at this woman?”

  “That was what I was there for.”

  “That is not exactly an answer to the question,” Hamilton Burger pointed out. “Did you …”

  “Yes, I did.”

  “You noticed her particularly?”

  “Yes, sir.”

  “And you saw this woman emerge from room 721?”

  “I did. Yes, sir.”

  “Who was that woman?”

  “Miss Dixie Dayton, one of the defendants in this case.”

  “Will you please designate the woman.”

  “The one I am pointing at.”

  “The record doesn’t show the one that you’re pointing at. May I ask Miss Dayton, the defendant, to stand up?”

  “Stand up,” Mason said.

  Dixie Dayton stood up.

  “Is that the woman?”

  “That is the woman.”

  “Let the record show,” Hamilton Burger said, “that the identification is that of the woman who stood up, and the woman who stood up is Dixie Dayton, one of the defendants in this case.

  “What did you do when this woman left the room?” Burger asked.

  “I followed her.”

  “Where?”

  “She took the elevator. The elevator went up. I ran up one flight of stairs. I was on the seventh floor, and there were only eight floors in the hotel. I therefore knew she couldn’t go up more than one floor. I felt that I could get up there almost as soon as the elevator.”

  “And you did so?”

  “Yes.”

  “And where did this woman go?”

  “She went to room 815, the room where the body of George Fayette was subsequently discovered by the police.”

  “This same woman?” Burger asked.

  “This same woman.”

  “You’re positive?”

  “Positive.”

  “And who was that woman?”

  “I have already told you.”

  “I mean, who was the woman who went to this room 815?”

  “The defendant, Dixie Dayton.”

  “The same person who stood up? The same person you have previously identified?”

  “Yes, sir.”

  “Cross-examine,” Burger said to Perry Mason.

  Minerva Hamlin turned to face Perry Mason with eyes that flashed antagonism, a manner that plainly showed she intended to give tit for tat, and that no adroit cross-examination was going to confuse her.

  Mason’s attitude was that of an older brother asking an impulsive younger sister to confide in him.

  “Miss Hamlin,” he said, “you didn’t know Dixie Dayton, did you?”

  “I had never seen her until she stepped out of that room.”

  “You didn’t know who she was at the time?”

  “I saw her, I didn’t know her name, no.”

  “And the police showed you a photograph of Dixie Dayton and asked you if that was the same woman, didn’t they?”

  “Yes.”

  “What did you tell them?”

  “I told them it was.”

  “Didn’t you tell them that you thought it looked like the same woman?”

  “Well, if it was the same woman it would look like her, wouldn’t it?”

  There was a ripple of merriment in the courtroom at her tart rejoinder.

  “That,” Mason said, “is quite true. Since you ask me the question I’ll be only too glad to answer it, Miss Hamlin. You might pardon me also if I point out that if it had not been a photograph of Miss Dayton, that it still might have looked like her. Photographs are frequently confusing.”

  “They don’t confuse me. I have a very keen eye.”

  “And yet you couldn’t make an absolutely positive identification the first time you saw that photograph, could you?”

  “Well, I told them—well, it depends on what you mean by ‘positive.’ ”

  “Well,” Mason said smiling, “what do you mean by it?”

  “When I’m positive, I’m positive.”

  “So one would gather,” Mason said. “You weren’t quite as positive then as you are now.”

  “Well, I’ve had a chance to see the woman herself since then. The photograph didn’t—well, it …”

  “Do you mean it didn’t look like her?”

  “No, it looked like her.”

  “But you were still a little doubtful?”

  “I wanted to be perfectly fair, Mr. Mason.”

  “And you still do, don’t you?”

  “Yes, sir.”

  “Now,” Mason said, “when you first saw that photograph you couldn’t be absolutely positive. You weren’t positive. You said you thought it might be the same woman, but you couldn’t be certain.”

  “That was when I first glanced at it.”

  “So you studied the photograph, didn’t you?”

  “Yes, sir.”

  “And did you become more positive as you studied the photograph?”

  “Yes, sir.”

  “However, you weren’t completely convinced from just looking at the photograph, were you?”

  “No, sir. What completely convinced me was when I saw the defendant in a police show-up, or shadow box, or whatever it is they call them.”

  “And then you were certain?”

  “I picked her out of a line of five women who were standing in the box. I picked her out unhesitatingly.”

  “And that was after you had been studying her photograph?”

  “Yes, sir.”

  “Now, let’s be frank, Miss Hamlin, isn’t there at least a distinct possibility that you had studied that photograph so carefully in making a conscientious attempt to determine whether it was or was not a photograph of the person you saw leaving the room, that when you saw the defendant your mind almost subconsciously identified her with the photograph, and therefore you made the identification?”

  “When I saw that woman in the line-up I was absolutely positive she was the woman who had been leaving the room in the hotel.”

  “Now, would you be good enough to explain to the Court just where you were when the woman left the room in the hotel.”

  “You mean room 721?”

  “Yes.”

  “I was down at the end of the corridor by the fire escape, pretending to go about my duties as maid.”

  “And what particular duties were you doing at the time?”

  “I pretended to be knocking on a door, as though I were checking towels.”

  “I assume from your manner that you’re a rather remarkably efficient young woman, are you not, Miss Hamlin?”

  “I try to be.”

  “And in acting the part of the maid you did your conscientious best to act just as a maid would do under similar circumstances?”

  “Mr. Mason, I am interested in amateur theatricals. I have studied acting. I think I have the ability to be a very good actress. I try to be efficient in everything I do. I realize that in order to portray a persona and act a part successfully, you have to visualize that you actually are that person.”

  “So you visualized that you were the maid?”

  “Yes, sir.”

  “And went about doing things just as a maid would do?”

  “Yes, sir.”

  “And a maid wouldn’t take too keen an interest in a woman who stepped out of a room and walked down the corridor, would she?”

  “Just a glance, that’s all.”

  “So you, making a good job of acting the part of the maid, gave just a glance?”

  “Yes, sir.”

  “Now, why had you gone to the end of the corridor by the fire escape?”

  “I think that is quite obvious, Mr. Mason. I didn’t want to have the person who emerged from that room inspect me too closely. Therefore I went to the far end of the corridor. I knew that when she emerged from the room, no matter where she was going, whether she went to the elevator or the stairs, she would have to walk along the corridor. Under those circumstances, she couldn’t meet me face to face.”

  “In other words, she turned her back to you?”

  “Yes. But not before I had seen her face when she emerged from the room.”

  “How far was the door of that room from where you were standing at the end of the corridor?”

  “I don’t know. Twenty or thirty feet perhaps.”

  “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’s 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 justify 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 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 the 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.