“No it isn’t,” snapped Perry Mason.

  “Well, according to my theory of the case, and according to the testimony of Don Graves, a disinterested witness, there was,” said Drumm, “and, if the test is going through, that has got to stand. Now that woman who was in the room either had to be Mrs. Mayfield or Miss Celane. Similarly, there were three men who might have committed the murder. There was Pete Devoe, the chauffeur, who was drunk when we found him, but who, nevertheless, was under suspicion; there was Rob Gleason, the defendant in the action, and Purkett, the butler. One of those three men must have been the one to swing the club.”

  “That,” said Mason, “is taking for granted that the evidence of the footprints under the window, and the window that had been jimmied open, is evidence that was planted.”

  “Of course it is,” said Drumm. “You wouldn’t want us to have the whole city standing here in the room because there might have been someone in the city who had broken into the house. You can’t have this thing all your way.”

  “I should have it enough my way so that we can tell whether Graves uses his eyes, or whether it’s just a lucky guess.”

  Claude Drumm showed a glint of triumph in his eyes.

  “I have arranged this test,” he said, “under circumstances which are identical to those which surrounded the commission of the crime. This test is made as the result of a challenge by you. Now, if you are afraid to have Graves go ahead with it, all you have got to do is to say so, and we’ll call the test off, because you didn’t dare to let the witness go through with it.”

  Mason shrugged his shoulders.

  “Very well,” he said, “if you’re going to put it on that ground, go ahead.”

  The glint of triumph which had been in Drumm’s eyes became a light of victory, and he grinned with blatant assurance.

  “All right,” he said to the compact group that had gathered about the two men, “I think you two gentlemen understand the situation perfectly. We are to go up the hill in the car. I will be seated in the back seat with Mr. Graves. Mr. Mason, the attorney for the defendants, will be seated in the front seat beside Judge Purley.

  “After the car has started up the hill, you gentlemen of the press will select one of these women, who will stand so that her head, neck, shoulder and arm will be visible through the window, to anyone standing on the curve in the road at the point where Graves looks back. You will also select one of the three men, each of whom is attired in a distinctly different suit of clothes, to stand with a club in his hand, leaning over the chair in which Edward Norton was sitting when he was killed.

  “I think that covers the situation. The reputation and integrity of Judge Purley will be sufficient to guarantee that whatever may happen in the automobile will not subsequently be distorted by either party.”

  Perry Mason said: “Just a minute. Before Don Graves leaves this room I want to have a confidential word with Judge Purley.”

  Drumm looked at him suspiciously.

  “Not unless I am along,” he said. “This is a test, and if you are going to have any confidential words with anyone, I’m going to hear what they are.”

  “I have no objection to your listening,” said Perry Mason, “but naturally, inasmuch as this is a test, I don’t want Don Graves to hear it.”

  “Very well,” said Drumm. “You can wait here, Graves, until we call you.”

  “We’ll blow the horn on the automobile, ” said Perry Mason, “when we are ready.”

  In frigidly dignified silence, the two opposing attorneys walked down the broad stairs, through the front door, and to the automobile where Judge Purley sat in ponderous dignity, surrounded by flashlight photographers, his face wearing an expression of satisfaction which he endeavored to conceal beneath the cloak of a judicial and ponderous dignity.

  “Are you ready, gentlemen?” he asked.

  “It is understood,” said Perry Mason, “that I am to sit in the front seat with Judge Purley; that you, Mr. Drumm, are to sit in the rear seat with Don Graves?”

  “That is so understood,” said Drumm.

  “Under those circumstances,” said Perry Mason, “I am going to ask that you remove your glasses.”

  “That I what?” snapped the Deputy District Attorney.

  “That you remove your glasses,” Perry Mason said. “You will readily understand that if you are wearing your glasses so that your vision is fully corrected, and you should turn at the same time that Don Graves turns, it might be that by some involuntary exclamation or motion, you would signal Don Graves which one of the three men you thought was holding the club. In which case I should be having a test made with two pairs of eyes instead of one.”

  “That sir,” said Claude Drumm, “is an insult to my veracity.”

  “No,” said Perry Mason, “it is no such thing. It is merely a matter of precaution against an involuntary betrayal.”

  “I refuse to consent to it,” said Drumm.

  “Very well,” said Perry Mason. “I shall not insist. I have merely mentioned the matter. One other thing is that I am going to ask Judge Purley to keep his eyes straight ahead on the road.”

  “No,” said Drumm, “I am not going to consent to that condition, because when Judge Purley was driving the car on the night the murder was committed, and Don Graves gave his exclamation, it was only natural that Judge Purley should have looked back to see what it was that had caused the exclamation, and in doing this, he naturally slowed down the car, which gave Graves opportunity for a much longer and steadier look.”

  Perry Mason sighed wearily, after the manner of one who has been out-generaled.

  “Very well,” he said, “summon Graves.”

  Judge Purley pressed the button of the horn on the automobile.

  They waited a few minutes, and Perry Mason reached over and again pressed the button of the horn.

  There was still no Graves, and Judge Purley pushed his left palm imperatively against the button on the steering post of the car, looking expectantly up at the window.

  There was a commotion for a moment, and then Don Graves stood in the window and shouted: “One of these newspaper reporters wants to change the conditions of the test.”

  Claude Drumm gave an exclamation, slammed open the door of the car, strode across the street, and stood under the window. “The conditions of that test were fully arranged when we left the room,” he said. “Don’t discuss the matter with any of the newspaper reporters. If they can’t coöperate in this thing they’ll be excluded. Come down here at once!”

  “Very well, sir,” Don Graves said, and left the window.

  Almost at once Harry Nevers thrust out his head and called: “This test isn’t fair. We should have the right to have one of the men stand where Graves claims the woman was standing, if we want to. That would determine whether Graves could actually see that the other occupant of the room was a woman. It might have been a man.”

  “In a pink negligee, eh?” sneered Drumm. “Now listen, the only function that you gentlemen have is to pick which one of the three men, and which one of the two women, will stand in that position. That was definitely understood, and that is the condition of the test. If an attempt is to be made to change it, I will call off the test.”

  “Oh, very well,” said Nevers, “have it your own way. But it doesn’t seem fair to me.”

  Don Graves came down the stairs, left the front door, and said in a low voice to Claude Drumm: “The man is drunk. He made a nuisance of himself up there, but I didn’t want to offend him because I didn’t want his newspaper to roast me.”

  “All right,” snapped Drumm, “leave him to me. Are we ready?”

  “All ready,” said Perry Mason.

  They took their positions in the automobile for the last time. Flashlights boomed up in puffs of dazzling flame as newspaper photographers took action pictures of the car pulling away from the curb.

  Judge Purley snapped it through the gears and drove up the winding roadway at a fair rate of speed.

  “It is understood,” said Perry Mason, “that Don Graves will not look back until Judge Purley indicates the place on the road where Graves first gave his exclamation.”

  “So understood,” snapped Drumm.

  The car purred up the roadway, swinging around the curves.

  “Now!” said Judge Purley.

  Don Graves pushed his face up against the rear window of the automobile and cupped his hands around his eyes.

  Perry Mason flashed a glance at the study window of the house.

  The figures could be seen for a single brief glimpse, standing in position.

  The car swept around the curve in the roadway, and the house vanished from view.

  “I got it, sir,” said Don Graves.

  “Who was it?” asked Judge Purley, braking the car to a stop.

  “The man in the blue serge suit with the dark hair, and the woman in the pink dress,” said Don Graves.

  Claude Drumm heaved a sigh.

  “There, counsellor,” he said to Perry Mason, “goes your defense in this case—blown to smithereens!”

  Perry Mason said nothing.

  Judge Purley sighed ponderously.

  “I will now turn around and go back,” he said. “I presume the newspaper people will want to make some more photographs.”

  “Very well,” Drumm told him.

  Perry Mason said nothing. His rugged face was expressionless. The patient, thoughtful eyes stared meditatively at the face of Judge Purley.

  Chapter 25

  The courtroom was jammed with spectators as Judge Markham marched in from the chambers in the rear of the bench.

  “Stand up,” shouted the bailiff.

  The spectators arose and remained standing while Judge Markham strode to the judicial chair and the bailiff intoned the formula which convened the session of court.

  Judge Markham sat down, and banged the gavel, and spectators, attorneys, jurors and defendants dropped into their seats.

  The atmosphere of the courtroom was electric, but sympathies were all with the prosecution.

  In man there is implanted a sporting instinct to side with the underdog, but this is in man, the individual. Mob psychology is different from individual psychology, and the psychology of the pack is to tear down the weaker and devour the wounded. Man may sympathize with the underdog, but he wants to side with the winner.

  And the results of the test had been spread to the public through the pages of every newspaper in the city. It had been dramatic and spectacular. There had been about it something of the element of a gambling proposition. The defense had staked much on the happening of a certain event, on the turn of a single card, and it is human nature to crowd breathlessly forward as spectators when men are risking high stakes on a single card.

  Therefore the reading public eagerly devoured the newspaper accounts of that which had happened. The outcome of the case was now a foregone conclusion. Don Graves had vindicated his ability to identify the occupants of the room from the exact point where he had seen the murder committed, and under exactly similar circumstances.

  The gaze of the spectators in the courtroom had shifted now from the witnesses, and was fastened upon the defendants, particularly upon the shapely and slender figure of Frances Celane.

  Old campaigners who have participated in hard fought legal battles will agree that this is the most ominous sign which a courtroom can give. When a case first starts, the attention of the spectators is fastened upon the defendants. They strain their necks with curiosity, watch the faces of the defendants for some flicker of expression which will convey a hint of their feelings. The average spectator likes to look at a defendant, try to visualize the defendant in the midst of the circumstances surrounding the crime, and reach an opinion as to the guilt or innocence of the prisoner, to the extent that he or she seems visually to fit into that picture.

  Then, after the trial is under way, the auditors become interested in the unfolding of the story of the crime itself, in the battle over testimony. Their attention is centered upon the witnesses, upon the judge, upon the dramatic personalities of the attorneys as they match wits in legal arguments.

  So long as the issue is in doubt; so long as the interest remains centered upon the outcome of the case, so long will the spectators continue to fasten their eyes upon the witnesses; upon the actors in the drama that is being unfurled. But let some event crash the testimony to a climax, remove the element of uncertainty, convince the spectators of the guilt of the defendant, and the eyes of the spectators will automatically shift to the defendant; not trying now to visualize how the defendant looked in the commission of the crime, but staring at the prisoner with that morbid curiosity which comes to men who look at one who is about to die. They like to terrify themselves by thinking of the morning when the inevitable hands will drag the protesting prisoner from the cell and march the lagging footsteps along that last grim walk.

  It is the sign which lawyers dread, the verdict of these masses, the thumbs-down signal which shows the turning point has been passed, and that the prisoner is condemned.

  Never a veteran trial lawyer who has fought his way through the intricate web of many cases, but has learned to appreciate the dread portent of that shifting attention. Defendants do not know its fatal significance, often they smirk with satisfaction as they see themselves the sudden cynosure of the eyes of the spectators; but not so the attorney who sits at the counsellors’ table, his law books piled in front of him, his face calm and serene, but his soul shrinking from the portent of that silent verdict.

  In this case the silent verdict had been rendered. It was guilty of murder in the first degree for both defendants, and there was no recommendation of mercy.

  Judge Markham’s level tones cut the tense silence of the courtroom.

  “Mr. Don Graves was on the witness stand,” he said, “and was being cross-examined. The case was continued from last week, pursuant to a stipulation by counsel that a test was to be made with this witness—a test that had been suggested by the defense, and stipulated to by the prosecution.

  “Gentlemen, do I understand that the results of that test were to be received in evidence?”

  Claude Drumm rose to his feet and said sneeringly: “It was a test which was conducted with every possible degree of fairness to the defense, at the challenge of the defense, and pursuant to stipulation. It was participated in by this witness under conditions identical to those which surrounded the commission of the crime, and I asked that it be received in evidence.”

  Judge Markham looked at Perry Mason.

  Perry Mason rose to his feet.

  “If the court please,” he said, “there is no objection to that. It is, however, not a part of my cross-examination. That is, it must come in as a part of the redirect examination of this witness, and the question is therefore not properly before the court at the present time. But, when the question does come before the court, if the District Attorney desires to examine this witness as to the test, I shall make no objection, subject, however, to the fact that I shall have the right to cross-examine the various witnesses to that test, as to the actual circumstances surrounding it.”

  It had been said of Judge Markham that the lawyer did not live who had ever brought an expression of surprise to the face of the magistrate when he was sitting in a court of law. Now Judge Markham stared at Perry Mason as though he would try to read what might be in the mind of the counsel for the defense, and his eyes were wide and thoughtful.

  Perry Mason met his gaze calmly and placidly.

  “Shall I proceed with the cross-examination of the witness?” he asked.

  “Proceed,” snapped Judge Markham.

  “You are familiar with the business affairs of Edward Norton?” asked Perry Mason in an even monotone of passionless inquiry.

  “I am fully familiar with all of those affairs,” said Don Graves.

  “You are then familiar with the expiration date of the insurance policy which lay upon the desk of Edward Norton?” asked Perry Mason.

  “I am.”

  “What was the expiration date of that insurance policy?”

  “The twenty-sixth of October of the present year.”

  “Ah! Then the insurance policy expired but three days after the murder of Edward Norton?”

  “That is correct.”

  “Is it a fact, Mr. Graves, that you have some animus, some prejudice against the defendant, Frances Celane, in this case, due to the fact that she is married to Robert Gleason?”

  The question came as a surprise, and there was that suppressed rustle of motion from the courtroom which indicates a sudden snapping to attention on the part of the spectators, a craning of necks, a pushing forward to the extreme edges of the seats.

  “That is not true!” protested Don Graves, with a show of feeling. “I did everything I could to keep the name of Frances Celane out of this. I am testifying in this matter only because I was forced to court under a subpoena.”

  “And you have no bias against Frances Celane for any other reason?”

  “None.”

  “Or against Robert Gleason?”

  “No. I hold no feeling of friendship for Robert Gleason because I know him but slightly; but for Miss Celane, my feelings are entirely different. I would not say a word in this courtroom which would connect her in any way with the murder of Edward Norton unless I knew absolutely and beyond all reasonable doubt that what I said was true and correct.”

  “No further questions,” said Perry Mason, with the air of a man who has been defeated.

  Claude Drumm got to his feet, and said with just a trace of a sneer in his air of triumph: “I have a few questions to ask upon redirect examination. You were asked upon cross-examination, Mr. Graves, whether you had ever made a test, under circumstances identical with the circumstances surrounding the murder of Edward Norton, to determine if you could recognize persons in the room where Edward Norton was murdered.”

  “Yes,” said Don Graves, “I was asked that question.”