“Yes.”
“Why?”
“Because the barrel of the gun number 21323-S has been tampered with.”
“What do you mean by being tampered with?”
“That’s the best way I can explain it. It is as though someone had taken a small circular file of the type known as a rattail file, and scratched and filed the interior of the barrel so that the characteristics were entirely altered; that is, the individual characteristics.”
“In your opinion, that was done?”
“In my opinion, the barrel was tampered with, yes, sir.”
“Do you know when?”
“After the last bullet had been fired through that barrel.”
“How do you know that?”
“Because of bits of metallic dust, or scrapings, which remained inside the barrel of the gun and the peculiar appearance of certain blemishes in the barrel which would have been altered in appearance by the firing of a bullet.”
“Now then, I call your attention to the empty cartridge case introduced in evidence and found near the place where Mervin Selkirk’s body was found. I ask you if you are able to tell whether that empty cartridge case had been fired in the gun in question.”
“Yes. That cartridge was exploded or fired in the weapon which has been introduced in evidence.”
“And how are you able to determine that?”
“By a microscopic examination of the imprint of the firing pin in the rim of the shell, and a microscopic examination of the ejector marks on the cartridge case.”
“You may cross-examine,” Marshall said to Mason.
“Did you check the ownership or registration of this weapon, number 21323-S?” Mason asked Redfield.
“I did. Yes, sir.”
“And who is the registered owner of that weapon?”
“Mr. Barton Jennings.”
“You found the weapon in his house?”
“Yes.”
“And you found that the weapon was owned by him?”
“Yes, sir.”
“Now, let me see if I understand your testimony,” Mason said. “If the defendant in this case had killed Mervin Selkirk, she would have gone to a house owned by Barton Jennings, she would have found some way of possessing herself of a weapon belonging to Barton Jennings, she would then have left the house and gone to the San Sebastian Country Club; she would have fired a single shell which resulted in a fatal wound, bringing death to Mervin Selkirk, and then, regardless of whether she carried an eighty-five pound printing press out into the brush into the dark without stumbling, tearing her clothes, or getting ink all over her garments, she would have returned to her room in the Jennings house, would have taken a rattail file and spent some time working on the barrel of the gun so that the bullet could not be identified, and then would have conveniently left that gun under the pillow of the bed in which she had been sleeping so that you could find it there without any difficulty. Now my question is this, is there anything in your testimony that is inconsistent with such facts?”
“Your Honor, I object,” Marshall said. “The question is argumentative. It assumes facts not in evidence. It is not proper cross-examination.”
“The objection is overruled,” Judge Kent said after some deliberation. “The question is skillfully framed. Counsel is asking the witness if certain things must have happened, whether his testimony indicates any evidence in contradiction of these facts. He is asking that question for the purpose of trying to clarify or modify the opinion testimony of an expert witness. I will permit the question only because this witness is an expert and for that one limited purpose.”
Redfield said reluctantly, “I have no way of knowing the sequence of the events or who altered the barrel of the gun. It is quite possible that the defendant could have left the gun under the pillow and that thereafter some other person could have altered the barrel by mutilating it with a rattail file.”
“Exactly,” Mason said, smiling. “Now we’re coming to the point which I wish to bring out, Mr. Redfield. You state that you have no way of knowing who altered the barrel.”
“That is correct.”
“You assume that someone else could have done it.”
“Yes, sir.”
“That alteration of the barrel required the use of a long, thin, circular file of the type known as a rattail file?”
“Yes, sir.”
“Do you know if any such implement was found in the possession of the defendant?”
“No, sir.”
“It is not the type of implement that a woman would customarily carry in her purse?”
“Objected to as argumentative and calling for a conclusion of the witness,” Marshall said. “The witness is an expert on firearms, not on women’s purses.”
“Sustained,” Judge Kent ruled.
“But you have stated that it is quite possible that some other person, such as Barton Jennings for instance, took this weapon from under the pillow and mutilated the barrel with a rattail file and then replaced it?”
“Yes, sir.”
“Now, isn’t it equally plausible to assume,” Mason said, “that the barrel of the weapon was mutilated and then it was placed under the pillow of the bed in which the defendant had slept, and that that was the first time the weapon had ever been in that bed.”
“That, of course, is an assumption which can be drawn,” Redfield said.
“A weapon of this sort placed upon a sheet leaves a certain imprint?”
“It may.”
“I call your attention to the photograph which has been introduced in evidence showing the weapon in place where it was found, and ask you if you can find any place on that sheet as shown in the photograph where it appears that the weapon could have previously reposed.”
“It would have been virtually impossible to have picked the weapon up, mutilated the barrel and then restored it to the exact position from which it had been taken?”
“It would not have been impossible... well, that depends on what you mean by the exact position.”
“I mean the exact position.”
“Well, if you are talking about a thousandth of an inch, it would have been virtually impossible. But it could have been carefully placed so that it was in virtually the same position from which it had been taken.”
Mason stepped forward and said, “I now hand you an empty cartridge case and ask you to compare that with the cartridge case which has previously been introduced in evidence and to examine carefully the mark of the firing pin and the marks made by the automatic ejector and ask you if it appears to you that both cartridges were fired from the weapon in question.”
Redfield took the empty cartridge case which Mason handed him, took a magnifying glass from his pocket, studied it carefully, said, “I can’t tell you, Mr. Mason, with such examination as I can make at this time. I can state that it has the external appearances of having been fired from this weapon, but in order to make certain I would have to make a very careful check of the impression left by the firing pin in the rim of the cartridge case.”
“How long would that take?”
“Perhaps a couple of hours.”
“I suggest that you do it,” Mason said. “I also suggest that you take care to mark this cartridge case so that it can be identified again without confusion.”
“Now just a moment,” Marshall said. “I don’t know what counsel is getting at, but this is the same old run-around. As far as this case is concerned, it doesn’t make any difference where this empty cartridge case came from. It doesn’t have any bearing on the case. It is incompetent, irrelevant and immaterial.
“It is, however, a well-known fact that in cases of this sort counsel has a habit of cross-examining experts by juggling bullets, by introducing other weapons and generally confusing the issues.”