“And what happened?”
“You talked into the telephone.”
“Now, just a moment, just a moment,” Drew objected. “This is incompetent, irrelevant and immaterial. It is a conclusion of the witness.”
“It’s no conclusion of the witness,” Mason said. “It would be a conclusion if I asked her to whom I was talking, but she is testifying only to a physical fact, that I talked into the telephone. I talked into the telephone and she can testify to that fact.”
“Go ahead,” Judge Erwood said to Della Street. “The objection is overruled. Any motion to strike is denied. Don’t tell us what Mr. Mason said or to whom he talked, just what happened.”
“Yes, Your Honor. Then Mr. Mason hung up, and— Would I be permitted to state what he told me?”
Judge Erwood shook his head and said, “Not if the prosecution objects.”
“We object,” Drew said.
“Very well. That would be hearsay, just go ahead and state what was done if it is at all pertinent.”
“I think it is quite pertinent,” Mason said. “We are now coming to the part that I feel is very important.”
“Very well,” Judge Erwood said. “What happened, Miss Street?”
“Then, after Mr. Mason hung up the telephone, I picked up the telephone and kept pressing the button at regular intervals.”
“And what happened?”
“Mr. Borden answered the phone.”
“Just a minute, just a minute,” Drew said. “We move to strike that out as the conclusion of the witness. No proper foundation laid.”
Judge Erwood turned to Della Street, his face showing considerable interest. “You state that Mr. Borden answered?”
“Yes, sir.”
“Did you know him in his lifetime?”
“No, Your Honor.”
“Then how did you know it was Mr. Borden?”
“He said it was Mr. Borden.”
“In other words, there was a voice over the telephone announcing that it was Mr. Borden talking?”
“Yes, Your Honor.”
Judge Erwood shook his head. “The objection is sustained. The motion to strike is granted. That is a conclusion of the witness. You may, however, state as nearly as you can recall the conversation which took place over the telephone.”
“We object to it, if the Court please,” Drew said, “with all due respect to the Court’s question. Unless it can be shown definitely that it was Meridith Borden on the other end of the line, we object.”
Judge Erwood shook his head. “Counsel has already laid the foundation by showing that the telephone at the gate is connected directly with the house. Now then, Miss Street has testified she pressed the button on the telephone and she had a conversation with someone. She is entitled to relate that conversation. Then it can be shown that the person at the other end of the line was Mr. Borden, either by direct or by circumstantial evidence. The Court may state that the foundation as far as circumstantial evidence is concerned, is pretty well laid at this moment. It appears that Mr. Borden was alone in the house, according to the prosecution’s own testimony. According to the testimony of this witness, some man answered the telephone. I have stricken out the statement that the man said he was Mr. Borden, as a means of proving the identity of the person at the other end of the line, but I will permit the witness to state what the conversation was.”
Della Street said, “I believe the man’s voice asked who was calling. I said that we were passers-by, that we wanted to speak with Mr. Borden. The voice said that it was Mr. Borden speaking, that he didn’t want to be disturbed, and I told him that this was a matter of an emergency, that we had reason to believe there was a young woman who had been in an auto accident and who might be wandering around the grounds somewhere.
“Then the man’s voice stated that someone had been tampering with the gates; that this had triggered a burglar alarm and released watchdogs; that he would turn off the lights and call the dogs back to the kennels; that the dogs were not going to hurt anyone; that they were trained to hold a person motionless and bark until someone could arrive; that they weren’t going to kill anyone. Then the voice asked me who I was, and I refused to give my name, saying I was merely a passer-by.”
“Then what?” Mason asked.
“I hung up the telephone and told you— That is,” Della Street amended with a smile at the prosecution’s table, “I know I’m not permitted to state what I told you.”
“Now, what time was this?” Mason asked.
“It was possibly ten minutes after eleven, perhaps fifteen minutes after eleven, when I had this conversation.”
“Then what did we do?”
“We drove Mr. Ansley back to the Golden Owl Night Club where he picked up his car.”
“We were with Mr. Ansley until what time?”
“Until right around eleven-thirty, perhaps eleven-thirty-five.”
“And we left him where?”
“At the Golden Owl Night Club.”
“Then you, yourself and of your own knowledge, can vouch for the whereabouts of the defendant in this case from a time which you estimate to be two or three minutes after ten until eleven-thirty on the evening of the murder?”
“That is right,” Della Street said.
Mason turned to Drew.
“You may cross-examine,” he said.
Drew, grinning broadly, said, “We have no questions of this witness.”
“No cross-examination?” Judge Erwood asked in surprise.
Drew shook his head.
“The Court may point out to you, Mr. Drew, that unless the testimony of this witness is questioned in some way, there is a very strong presumption that she was actually talking with Mr. Borden.”
“We understand, Your Honor,” Drew said. “But we don’t intend to try to establish our rebuttal by cross-examination.”
“Very well,” Judge Erwood snapped.
“That’s all,” Mason said. “That’s our case, Your Honor.”
Judge Erwood looked at the table where Hamilton Burger and Sam Drew were engaged in smiling conversation. “It would seem, Mr. Prosecutor,” the judge said, “that we now have a very material difference in the situation. We have the testimony of a disinterested witness, one whose integrity impresses the Court, that some male person was in the Borden house a few minutes after eleven o’clock, that this male person answered a telephone, that according to the testimony of the prosecution’s own witnesses, the only person left in the Borden house at that time was Meridith Borden.”
“If the Court please,” Hamilton Burger said, smiling indulgently, “we would like to put on some rebuttal evidence before the Court, which will clarify the situation.”
“Very well, go ahead, call your witness.”
“We recall Frank Ferney,” Hamilton Burger said.
Frank Ferney returned to the witness stand.
“You’ve already been sworn,” Hamilton Burger said. “There’s no need for you to be sworn again. Have you heard the testimony of Miss Street who was just on the stand?”
“Yes, sir.”
“Do you know anything about the conversation that she has related?”
“Yes, sir.”
“What do you know about it?”
“I was the person at the other end of the line.”
Hamilton Burger grinned triumphantly. “You were the person who said you were Meridith Borden?”
“Yes, sir.”
Hamilton Burger bowed with exaggerated courtesy to Perry Mason.
“You may cross-examine,” he said, and sat down.
Mason arose to face the witness. “You told us,” he said, “that you left the Borden house at six o’clock; that you took a night out and had dinner with your girl friend.”
“That’s right. But I came back. I have my living quarters there and I sleep there.”
“What time did you get back?”
“Actually it was about — oh, I would say around ten minutes to eleven.”