“Now just a minute,” Judge Cadwell said. “The Court is very much concerned with this point raised by Mr. Mason. The Court feels that point is without merit. A man who has been tried for involuntary manslaughter committed with a car cannot claim that such a prosecution is a bar to a prosecution for first-degree murder committed with a gun.”

  “Why not?” Mason asked.

  “Why not!” Judge Cadwell shouted. “Because it’s absurd. It’s ridiculous on the face of it.”

  “Would the Court like to hear authorities?” Mason asked.

  “The Court would very much like to hear authorities,” Judge Cadwell said, “if you have any that bear upon any such case as this.”

  “Very well,” Mason said. “The general rule is that where a person is indicted for murder, the charge includes manslaughter. In other words, if a man is charged with first degree murder it is perfectly permissible for a jury to find him guilty of manslaughter.”

  “That is elemental,” Judge Cadwell said, “You certainly don’t need to cite authorities on any such elemental law point, Mr. Mason.”

  “I don’t intend to,” Mason said. “It therefore follows that if a man is tried for first-degree murder and is acquitted, he cannot subsequently be prosecuted for manslaughter involving the same victim.”

  “That also is elemental,” Judge Cadwell said. “The Court doesn’t want to waste its time or the time of counsel listening to any authorities on such elemental points.”

  “Then perhaps,” Mason said, “Your Honor would be interested in the Case of People versus McDaniels, 137 Cal. 192 69 Pacific 1006 92 American State Reports 81 59 L.R.A. 578, in which it was held that while an acquittal for a higher offense is a bar to any prosecution for a lower offense necessarily contained in the charge, the converse is also true, and that conviction for a lower offense necessarily included in the higher is a bar to subsequent prosecution for the higher.

  “The Court should also study the Case of People versus Krupa, 64 C.A. 2nd 592 149 Pacific 2nd 416, and the Case of People versus Tenner, 67 California Appellate 2nd 360 154 Pacific 2nd page 9, wherein it was held that while Penal Code Section 1023 in terms applies where the prosecution for the higher offense is first, the same rule applies where the prosecution for the lesser offense comes first.

  “It was also held in the Case of People versus Ny Sam Chung, 94 Cal. 304 29 Pacific 642 28 American State Reports 129, that a prosecution for a minor offense is a bar to the same act subsequently charged as a higher crime.”

  Judge Cadwell regarded Mason with frowning contemplation for a moment, then turned to the prosecutor. “Are the people prepared on this point?” he asked.

  Roger Farris shook his head. “Your Honor,” he said, “I am not prepared upon this point because, frankly, it never occurred to me. If it had occurred to me, I would have instantly dismissed it from my mind as being too utterly absurd to warrant any serious consideration.”

  Judge Cadwell nodded. “The Court feels that the point must be without merit,” he said. “Even if it has some merit, the Court would much rather commit error in deciding the case according to justice and the equities, rather than permit what might be a deliberate murder to be condoned because of a pure technicality.”

  “I would like to suggest to the Court,” Mason said, “that it would be interesting to know the theory of the prosecution. Is it the theory of the prosecution that if the jury in this case should return a verdict of guilty of manslaughter, and the Court should sentence the defendant to prison, the prosecution could then file another charge of murder against the defendant and secure a second punishment?”

  “Certainly not!” Farris snapped.

  “If you had prosecuted this man for murder originally,” Mason said, “and the jury had returned a verdict of not guilty, would it be your position that you could again prosecute him on a charge of involuntary manslaughter?”

  “That would depend,” Farris said, suddenly becoming cautious. “It would depend upon the facts.”

  “Exactly,” Mason said, grinning. “Once a defendant has been placed on trial, jeopardy has attached. Once the defendant has been convicted and sentenced, he has paid the penalty demanded by law. If the prosecution, as a result of poor judgment, poor investigative work, or poor thinking, charges the man with a lesser offense than it subsequently thinks it might be able to prove, the prior case is nevertheless a bar to a prosecution for a higher offense at a later date.”

  Judge Cadwell said, “The Court is going to take a sixty minute recess. The Court wants to look up some of these authorities. This is a most unusual situation, a most astounding situation. I may state that as soon as I heard the contention of the defendant, I felt that the absurdity of that contention was so great that it amounted to sheer legal frivolity. But now that I think the matter over and appreciate the force of the defendant’s contention, it appears that there may well be merit to it.

  “Looking at it from a broad standpoint, the defendant was charged with unlawful acts causing the death of Jackson Eagan. To be certain, those acts were of an entirely different nature from the acts now complained of, but they brought about the same result, to wit, the unlawful death of Jackson Eagan.

  “The defendant was prosecuted on that charge and he was convicted. Is it possible, Mr. Prosecutor, that this whole situation was an elaborate set up by the defendant in order to escape the penalties of premeditated murder?”

  “I don’t know, Your Honor,” Farris said. “I certainly wouldn’t want to make a definite charge, but here is a situation where legal ingenuity of a high order seems to have been used to trap the prosecution into a most unusual situation. Looking back on the evidence in that hit-and-run case, it would seem almost a suspicious circumstance that the witness, Myrtle Anne Haley, so promptly and obligingly wrote down the license number of the car of the defendant, Ted Balfour.

  “The situation is all the more significant when one remembers that the witness in question is employed by a subsidiary of the Balfour Allied Associates. Frankly, our office was amazed when she came forward as such a willing informant.”

  Judge Cadwell pursed his lips, looked down at Perry Mason thoughtfully. “There is some evidence here of legal ingenuity of a high order,” he said. “However, present counsel did not try that hit-and-run case.”

  “But present counsel did sit in court after the case got under way,” Farris pointed out. “He did not sit in the bar, but sat as a spectator—a very interested spectator.”

  Judge Cadwell looked once more at Perry Mason.

  “I object to these innuendoes, Your Honor,” Mason said. “If the prosecution can prove any such preconceived plan or conspiracy on the part of the defendant to mislead the authorities and bring about a trial for a lesser charge, the situation will be different; but it would have to amount to a fraud on the Court brought about with the connivance of the defendant, and there would have to be proof to establish that point.”

  “The Court will take a sixty-minute recess,” Judge Cadwell said. “The Court wants to look into these things. This is a most unusual situation, a very unusual situation. The Court is very reluctant to think that any interpretation of the law could be such that a defense of once in jeopardy could, under circumstances such as these, prevent a prosecution for first-degree murder.”

  “And may the Court make an order that I be permitted to communicate with the defendant during the recess?” Mason asked. “The defendant was arrested and has been held incommunicado so far as any worthwhile communication with counsel, with family or friends is concerned.”

  “Very well,” Judge Cadwell ruled. “The sheriff will take such precautions as he may see fit, but during the recess of the Court Mr, Mason will be permitted to communicate with his client as much as he may desire.”

  “I can put the defendant in the witness room,” the deputy said, “and Mr. Mason can communicate with him there.”

  “Very well,” Judge Cadwell said. “I don’t care how you do it, but it must be a communication under such circumstances that the defendant can disclose any defense he may have to the charge and have an opportunity to receive confidential advice from his attorney. That means that no attempt should be made to audit the conversation in any manner.

  “Court, will take a recess for one hour.”

  Mason motioned to Ted Balfour. “Step this way, if you please, Mr. Balfour.”

  Roger Farris, his face showing his consternation, hurried to the law library in a panic of apprehension.

  CHAPTER 13

  Balfour, a tall, wavy-haired young man who seemed ill at ease, seated himself across the table from Perry Mason. “Is there any chance you can get me out of this mess without my having to go on the witness stand?”

  Mason nodded.

  “That would be wonderful, Mr. Mason.”

  Mason studied the young man. He saw a big-boned, flat-waisted individual whose slow-speaking, almost lethargic manner seemed somehow to serve as a most effective mask behind which the real personality was concealed from the public gaze.

  Mason said, “Suppose you tell me the truth about what happened on the night of September nineteenth and the early morning of September twentieth.”

  Balfour passed a hand over his forehead. “Lord, how I wish I knew!” he said.

  “Start talking and tell me everything you do know,” Mason said impatiently. “You’re not dealing with the police now. I’m your lawyer and I have to know what we’re up against,”

  Ted Balfour shifted his position. He cleared his throat, ran an awkward hand through his thick, wavy, dark hair.

  “Go on,” Mason snapped. “Quit stalling for time. Start talking!”

  “Well,” Ted Balfour said, “Uncle Guthrie was going to Mexico. He was going into the Tarahumare country. He’s been down there before, sort of scratching the surface, as he expressed it. This time he wanted to get down in some of the barrancas that were so inaccessible that it was reasonable to suppose no other white man had ever been in there.”

  “Such country exists?”

  “Down in that part of Mexico it does.”

  “All right. What happened?”

  “Well, Dorla was going to ride as far as Pasadena with him, just to make sure that he got on the train and had his tickets and everything and that there were no last-minute instructions. She was to get off at the Alhambra-Pasadena station, but at the last minute Uncle Guthrie decided he wanted her with him and told her she’d better go along.”

  “How long has she been married to your uncle?”

  “A little over two years.”

  “How long have you been home from the Army?”

  “A little over four months.”

  “You have seen a good deal of her?”

  “Well, naturally, we’re all living in the same house.”

  “She’s friendly?”

  “Yes.”

  “At any time has she seemed to be overly friendly?”

  “What do you mean by that?” Balfour asked, straightening up with a certain show of indignation.

  “Figure it out,” Mason told him. “It’s a simple question, and any show of righteous indignation on your part will be a damn good indication to me that there’s something wrong.”

  Ted Balfour seemed to wilt in the chair.

  “Go on,” Mason said, “answer the question. Was there any indication of overfriendliness?”

  Balfour took a deep breath. “I don’t know.”

  “What the hell do you mean, you don’t know?” Mason blazed. “Come clean!”

  “Uncle Guthrie and Uncle Addison wouldn’t like your questions or your manner, if you don’t mind my saying so, Mr, Mason.”

  “To hell with your uncles!” Mason said. “I’m trying to keep you from going to the gas chamber for first-degree murder. As your attorney, I have to know the facts. I want to know what I’m up against.”

  “The gas chamber!” Ted Balfour exclaimed.

  “Sure. What did you think they did with murderers? Did you think they slapped their wrists or cut off their allowances for a month?”

  “But I … I didn’t do a thing. I don’t know anything about this man, Jackson Eagan. I never met him. I surely didn’t kill him or anyone else.”

  Mason’s eyes bored into those of the young man. “Did Dorla become too friendly?”

  Ted Balfour sighed. “Honest, Mr. Mason, I can’t answer that question.”

  “What do you mean, you can’t answer it?”

  “Frankly, I don’t know.”

  “Why don’t you know?”

  “Well, at times I’d think … well… it’s hard to explain what I mean. She sometimes seems to sort of presume on the relationship, and I’d think she … and then again, it would be … It’s something I just don’t know.”

  “What did she do?”

  “Well, she’d run in and out.”

  “Of your room?”

  “Yes. It would be different if she were really my aunt. But she’s not related at all, and … well, there’s not any way of really describing what I mean.”

  “You never tried to find out? You never made a pass?”

  “Heavens, no! I always treated her just as an aunt, but she’d run in and out, and occasionally I’d see her—One night when Uncle Guthrie was away and she thought she heard a noise downstairs, she came to my room to ask me if I’d heard it. It was bright moonlight and she had on a thin, filmy nightgown … and she said she was frightened.”

  “What did you do?”

  “I told her she was nervous and to go back to bed and lock her bedroom door. I said even if someone were down stairs he couldn’t bother her if she kept her door bolted, and all the stuff was insured.”

  “Did your uncle ever get jealous?”

  “Of me?”

  “Yes.”

  “Heavens, no!”

  “Is he happy?”

  “I’ve never asked him. He’s never confided in me. He’s pretty much occupied with his hobby.”

  “Look here,” Mason said. “Was your uncle ever jealous of anyone?”

  “Not that I know. He kept his feelings pretty much to himself.”

  “Did he ever ask you to check on Dorla in any way?”

  “Gosh, no! He wouldn’t have done that.”

  “Suppose he had been jealous. Suppose he thought she was two-timing him?”

  “That would be different.”

  “All right,” Mason said. “You have a tape recording machine with a special microphone that’s built to flatten up against a wall. Why did you have that and who told you to get it?”

  Ted Balfour looked at him blankly.

  “Go on,” Mason said. “Where did you get it?”

  “I never got it, Mr. Mason. I don’t have it.”

  “Don’t be silly,” Mason told him. “You have it. It was in your closet. I took it out. Now tell me, how did it get there?”

  “Somebody must have put it there. It wasn’t mine,”

  “You know I’m your lawyer?”

  “Yes.”

  “And I’m trying to help you?”

  “Yes.”

  “No matter what you’ve done, you tell me what it is and I’ll do my best to help you. I’ll see that you get the best deal you can get, no matter what it is. You understand that?”

  “Yes, sir.”

  “But you mustn’t lie to me.”

  “Yes, sir.”

  “All right. Have you been lying?”

  “No, sir.”

  “You’ve told me the truth?”

  “Yes, sir.”

  Mason said, “Let’s go back to the night of the nineteenth. Now what happened?”

  “My uncle was leaving for Mexico. Dorla was going with him as far as Pasadena. Then Uncle Guthrie changed his mind at the last minute and took Dorla with him. He’s funny that way. He has a restless mind. He’ll be all enthused about something or some idea, and then he’ll change. He’ll have a car and like it first rate and then something will happen and he’ll trade it in on a new model, usually of a different make.”

  “Would he feel that way about women?”

  “I guess so, but Aunt Martha died, so he didn’t have to trade anything in. I mean, Dorla was a new model. She appealed to him as soon as he saw her.”

  “I’ll bet she did,” Mason said.

  Ted Balfour seemed apologetic. “I guess that after Aunt Martha died the family sort of expected Uncle Guthrie would marry Florence Ingle. She’s a mighty fine woman and they’ve been friends. But Dorla came along and … well, that’s the way it was.”

  “You don’t call her ‘Aunt Dorla’?”

  “No.”

  “Why?”

  “She doesn’t want me to. She says it makes her seem … she used a funny word.”

  “What was it?”

  “De-sexified.”

  “So at the last minute and because of something that may have happened on the train, your uncle decided he wouldn’t let her stay behind in the same house with you?”

  “Oh, it wasn’t that.i He just decided to take her with him.”

  “And she didn’t have any clothes with her?”

  “No, sir. She purchased things in El Paso.”

  “Did you go to the station to see your uncle and Dorla off?”

  “Yes, sir.”

  “Who else went?”

  “Three or four of his intimate friends.”

  “How about Marilyn Keith, Addison Balfour’s secretary, was she there?”

  “She showed up at the last minute with a message Uncle Addison asked her to deliver. She wasn’t there to see him off exactly, but to give him the message.”

  “Then what happened?”

  “Well, there’d been something of a going-away party before.”

  “Where was this party held?”

  “At Florence Ingle’s place.”

  “Is she interested in archeology?”

  “I guess so. She’s interested in things my uncle is interested in.”

  “She knew your uncle for some time before he married Dorla?”

  “Oh, yes.”

  “And your uncle’s close friends felt he might marry this Florence Ingle?”

  “That’s what I’ve heard.”

  “How does Florence like Dorla?”