Lassing left the witness stand.
“It certainly shows an attempt on the part of the defendant, Carol Burbank, to give her father some sort of a fictitious alibi,” the district attorney stormed.
“The witness didn’t say she asked him to declare her father was present. You can’t prove an alibi unless you swear someone was there. She asked him to refuse to say her father was there.”
“Well, even so, she wanted us to assume that her father was present.”
“Whatever one wants the district attorney’s office to assume,” Mason said, “is purely a personal and private matter. That’s certainly a far cry from suborning perjury.”
“I’m not going to bicker with Counsel,” Burger lashed out. “I’ll prove it before I’m done. I now want to recall Lieutenant Tragg to the stand. If the Court please, I used him only for the purpose of proving the corpus delicti in connection with the first part of his testimony.”
“Very well,” the court ruled.
Tragg returned to the witness stand.
“Did you,” Burger asked, “have any conversation on Saturday, the day the body of Fred Milfield was discovered, with Carol Burbank?”
“Yes.”
“Where did this conversation take place?”
“In a restaurant known, I believe, as the ‘Dobe Hut,’ between Los Angeles and Calabasas.”
“And who was present at that conversation?”
“Mr. Roger Burbank, one of the defendants, and George Avon of the Los Angeles police.”
“And what was said at that time?”
“The defendant, Carol Burbank, stated that her father had been attending a political conference; that under the circumstances he should no longer try to keep that conference a secret, but should tell us where he was and what transpired.”
“Did she say that conference took place at the Surf and Sun Motel?”
“Well,” Tragg said, “she implied it.”
“Can you remember her exact language?”
“Unfortunately, I can’t. I was more interested in Roger Burbank at the time.”
“Did Roger Burbank make any statement with reference to that?”
“He put his hand down in his pocket and took out a key to Cabin Fourteen at the Surf and Sun Motel.”
“And did he tell you he had stayed there?”
“Well, he certainly intimated that he had.”
“That,” Mason announced, “is a conclusion of the witness and should be stricken on that ground.”
“I think so,” the court ruled. “This witness is a police officer and he should be able to tell exactly what the defendant said.”
“Well,” Tragg said smiling, “he put his hand down into his pocket, took out a key to Cottage Fourteen at this motel, and handed that key to me.”
“And did the defendant, Roger Burbank, thereafter accompany you to the Surf and Sun Motel and identify a razor of his which was found?”
“He did.”
“And did Carol Burbank tell you that her father’s razor was to be found in Cottage Fourteen of the Surf and Sun Motel?”
“She did.”
“You may cross-examine,” Burger said.
Mason’s smile was suave. “Carol Burbank told you her father’s razor was there?”
“Yes.”
“Did she tell you that her father had been there?”
“Well, I can’t remember that she said so, in so many words, but she inferred it.”
“You mean that you inferred it from the fact that his razor was there?”
“Well, in a way, yes. If you’re going to put it in just that way.”
Mason smiled. “I want to put it in just that way. Now then, she told you that her father’s razor was there.”
“Yes.”
“And did the defendant, Roger Burbank, tell you his razor was there?”
“Yes, subsequently.”
“And pointed out the razor to you?”
“Yes.”
“And identified it?”
“Yes.”
“And was it his razor?”
Tragg seemed uncomfortable. “I don’t know.”
“Exactly,” Mason said dryly. “He told you his razor was there. His daughter told you his razor was there. You found the razor there. You have taken no steps one way or another to prove whether or not it was his razor, have you?”
“It was planted.”
“Never mind your deductions, Lieutenant. Have you taken any steps to show whether that was or was not the razor of the defendant, Roger Burbank?”
“Well, no. I assume it was his razor.”
Mason smiled.
“So Carol Burbank told you her father’s razor was at this motel. Roger Burbank admitted his razor might be there. You took him up there — and found his razor was there. Thereupon, you tried to browbeat him into admitting that he had been there — and he denied it, didn’t he?”
“He denied it half-heartedly, so I’d think he was lying, and I didn’t try to browbeat him.”
“But he denied it?”
“Half-heartedly, yes.”
“Half-heartedly, quarter-heartedly or three-quarter-heartedly, he denied it?”
“Yes.”
“I submit, Your Honor,” Mason said, “that the fraction, or percentage of the man’s heart that was in his statement is the conclusion of a prejudiced witness. The fact is what the man said.”
Judge Newark nodded. His eyes were twinkling. “Proceed, Mr. Mason. The Court is making due allowances.”
Mason turned to Lieutenant Tragg. “And the defendant, Roger Burbank, told you that if you asked him publicly whether he had stayed at the Surf and Sun Motel the night before, he would have to deny it. Is that right?”
“Yes. But when he said that, I took it as an admission he was there.”
“I see,” Mason said. “That was merely your own interpretation of what he said?”
“It was the way I understood his words.”
“Fortunately, Lieutenant, we are to judge the case by what he said not by what you understood.”
“His daughter, Carol, said he’d been there at the restaurant.”
“Pardon me,” Mason said, “I was present at that time. Didn’t Carol merely suggest that a political conference might have been held at the Surf and Sun Motel the night before, and then didn’t she tell her father that the time had come for him to speak up and tell you exactly where he had been, and not try to protect the political careers of a lot of Sacramento bigwigs; and didn’t the defendant then reach in the pocket of his coat and take out a key and put it on the table, and didn’t you forthwith grab that key and see that it was the key to Cottage Fourteen at the Surf and Sun Motel?”
“Well, yes.”
“The defendant, Roger Burbank, didn’t ever say in so many words that he had been there, did he?”
“Well, he produced that key.”
“And then, after he had produced that key, he looked you straight in the eyes and told you that if you asked him if he had been present at the Surf and Sun Motel the night before he would deny it?”
“Well, I don’t remember exactly how it happened.”
“And didn’t Carol Burbank say, ‘But Dad, your razor is there on the shelf,’ or words to that effect?”
“Well, yes.”
“And you took that as an admission by Carol Burbank that her father had been there?”
“Well, his razor was there,” Tragg blurted.
“Exactly,” Mason said. “His razor was there. I take it that you will agree, Lieutenant, it’s no crime for a man to put his razor any place he happens to choose?”
“Well, taken in connection with all the circumstances,” Tragg said, “the inference is obvious.”
“You may draw that inference if you want,” Mason said, “but I think a jury will prefer to try the case on the facts. And if you’re going to make any claim of perjury, you’ve got to prove a false statement, not that, as in this case, the person charged made a true statement in such a manner that the police in charge thought it was untrue. It’s what a man actually says that counts, and to be perjury it must be under oath.”