Hamilton Burger said, “If we go into any part of this, Your Honor, I want to go into all of it.”
Judge Kent hesitated, then said, “I think the evidence is pertinent. Defense counsel has a duty to perform. I am going to let the witness answer the question.”
Barton Jennings said, “I guess it was about midnight, something like that, that Robert came crying into the house. I understand he told his mother that he had had a bad dream and he had fired a shot.”
“Did he say he had had a bad dream?”
“Well, from what he told her I know I felt it was a bad dream.”
“He thought someone had been in the tent?”
“He said he thought someone had been in the tent, groping along the bed. He had been awake at the time and it seems that this gun had been under his pillow.”
Judge Kent said to the witness, “Robert told this to his mother?”
“That’s right,” Jennings said. “I had had one of my spells with my knee and had taken codeine. I was asleep.”
Judge Kent looked over at Hamilton Burger. “This would seem to be hearsay, Mr. Prosecutor.”
Hamilton Burger said angrily, “I’m not going to object. That’s what counsel was hoping for. He hoped he could get headlines in the press and then have me shut him off. That’s what I meant when I said that if we went into this we were going into it all the way. Robert told his mother about shooting the gun that night. The next morning he told this witness the same story.”
Judge Kent said, “In the one instance it is part of the res gestae. In the other it is hearsay.”
“We have no objection,” Hamilton Burger said. “Having gone this far, it is only fair to the boy himself to go the rest of the way.”
Judge Kent frowned.
“What gun was under Robert’s pillow?” Mason asked.
“The gun that has been introduced in evidence, the Colt Woodsman, the .22 automatic.”
“And he had pulled the trigger?”
“He had a dream. He dreamt he was pretending to be asleep. He heard someone prowling around the outside of the tent, or thought he did, and then he dreamt that this person entered the tent and at the height of the nightmare he thought that he had discharged the weapon.”
“You say that was a nightmare?”
“Yes, sir.”
“How do you know it was a nightmare?”
“Because the weapon was unloaded. It was empty when it was given to Robert.”
“Who gave it to him?”
“I did, but I desire to explain that answer.”
“Go ahead,” Judge Kent said, “explain it.”
“I had found out very shortly before that date that one of the baby sitters who had been employed to sit with Robert had been letting him use or play with this empty gun. Robert had some imitation weapons, as most boys do. He liked to play cowboy, city marshal, and things of that sort. He had, however, discovered there was a genuine weapon in the house and had been determined to play with that. One time when the baby sitter was having a great deal of trouble with him, in order to quiet him and keep him from having a nervous tantrum, she let him play with this weapon.
“I hadn’t found that out until shortly before the seventeenth.”
“How did you find it out?”
“I usually left the gun loaded and in the bureau drawer of the front room. At intervals I would clean and oil it. On or shortly before the sixteenth I took the gun out to oil it. It was unloaded and there were no shells in the magazine clip. This bothered me. I asked my wife about it and then I asked Robert about it. It was then that I found out about Robert having had the gun.”
“And how did you happen to let Robert take the weapon on the night of the seventeenth and eighteenth?”
“We had to go to the airport to meet the defendant in the case. We didn’t expect to be gone but a very short time. My wife is too nervous to drive but she wanted to be the one to greet the defendant at the airport, so I drove her there. Robert was asleep in a tent out in the patio, or that is, he was going to sleep in a tent out in the patio. I had asked some neighbors to come in and stay with him for the hour and a half it would take us to make the round trip and pick up the defendant.”
“And what happened?”
“At the last minute it was impossible for the neighbors to come in. They had some unexpected company. I telephoned the agency which usually supplies us with baby sitters and it was impossible for either of our regular baby sitters to come that night. They were both engaged. Robert doesn’t like to be with a strange baby sitter. I explained the situation to him. I told him he would be perfectly safe out there in his tent in the patio, and he said that it would be quite all right to leave him, provided he could have this unloaded gun under his pillow. It gave him a sense of security.
“In view of the fact that I had found out that he had been playing with the weapon, I made certain the gun was unloaded and let him have it.”
“You yourself made certain that the gun was unloaded?”
“I did, yes, sir.”
“Now then,” Mason said, “when did you next see the gun?”
“Robert brought it in to his mother after the nightmare.”
“And did she try to quiet him?”
“She did.”
“Did he return to bed?”
“Yes. After he had become fully awakened, he realized that he had probably had a nightmare and he wanted to go back into the tent and go to sleep. As he expressed it, he wanted to be a ‘real scout.’”
“And he did that?”
“Yes.”
“And the weapon?”
“My wife put it on the hall stand. I wakened an hour or so after Robert had gone back to the tent. My wife told me what had happened.”
“Where was the gun?”
“On the hall table. My wife placed it there intending to take it to its regular place in the bedroom after Miss Allison had left the room. Miss Allison was sleeping there that night.”
“Was the gun unloaded at that time?”
“Of course it was unloaded.”
“Did you at any time tamper with the barrel? Did you run a rattail file or any other instrument through the barrel?”
“No, sir.”
“Or an emery cloth?”
“No, sir.”
“Did you tamper with the barrel in any way?”
“No, sir.”
“Did it occur to you that Robert might have loaded and fired the gun, that Robert’s shot must have hit something and that the bullet could have been shown to have been fired from that gun, and therefore you roughed up the barrel so as to protect Robert?”
The witness shifted his position, then said, “No, sir.”
“Because if you had,” Mason pointed out, “in view of the testimony of the ballistics expert that the barrel had been tampered with after the last bullet had gone through the barrel, it would prove that this defendant couldn’t have fired the fatal shot — at least with that gun. Do you understand that, Mr. Jennings?”
“Yes, sir.”
“And you are positive you yourself didn’t rough up the barrel to protect Robert?”
“I did not.”
“Did you load the weapon?”
“I didn’t load it. When I gave the gun to Robert I unloaded it.”
“How about the barrel? Do you know whether there was a shell in the barrel?”
“I told you, Mr. Mason, that I unloaded the gun. I was very careful to unload it.”
“You mean by that, that you worked the mechanism so as to be sure there was no shell in the gun?”
“Yes, sir.”
“Then how did it happen Robert was able to fire the gun?”
“The answer is obvious. He only dreamt he fired it.”
“And where was the gun the next time you saw it?”