The next morning as Judge Alvarado took his place on the bench and looked over the courtroom, it was quite apparent that the prosecution was discussing strategy on a matter which they considered to be of considerable importance.

Bailey and Hamilton Burger had their heads together in a whispered conference, as soon as the bailiff had rapped his gavel and Judge Alvarado had seated himself on the bench.

"The case of People versus Kerry Dutton," Judge Alvarado said. "The defendant is in court; the jurors are all present. It is so stipulated, gentlemen?"

"So stipulated," Perry Mason said.

"Yes, Your Honor," Hamilton Burger said. "It is so stipulated. May we have just a moment?"

Again there was a whispered conference; then Burger nodded his head somewhat reluctantly, apparently.

Immediately Bailey jumped to his feet. "If the Court please, that concludes the evidence of the prosecution. We rest our case."

A murmur of surprise ran through the spectators in the courtroom.

Judge Alvarado frowned. "It would have been perhaps fairer to the defense if the decision had been announced at the close of the courtroom session yesterday."

"We didn't know it at that time. We have just this minute reached our decision," Bailey said.

"Very well," Judge Alvarado said. "I will, however, be willing to grant the defense a reasonable recess so that it may meet this somewhat unexpected development."

"If the Court please," Mason said, arising and smiling at the jury, "the defense is not only willing but eager to proceed immediately."

"Very well," Judge Alvarado said. "Go ahead."

"And we do not wish to make an opening statement at this time," Mason said. "Our first witness is Desere Ellis."

"Come forward to the stand, Miss Ellis," Judge Alvarado said. "You have already been sworn and so it is not necessary for you to take an oath once more."

Desere Ellis came forward. This time she met the defendant's eyes with a quick flicker of a smile; then seated herself on the witness stand and turned to face Perry Mason.

"You are, of course, acquainted with the defendant and have known him for some time?" Mason asked.

"Yes."

"Did the defendant ever give you a gun?"

"He loaned me a gun, yes."

Mason said, "I show you the People's Exhibit A-G, a Smith and Wesson snub-nosed, thirty-eight-caliber revolver, number K524967, and ask you whether or not you have ever seen this gun before?"

"That is the gun that he gave me."

"Did he make any statement to you when he gave you the gun?"

"Yes. There had been some rather offensive telephone calls from a person who did not disclose his name and I was a little apprehensive."

"Now, was there any conversation specifically about the ownership of this gun which took place when it was handed to you?"

"Objected to as incompetent, irrelevant, and immaterial and as a self-serving declaration," Bailey said.

"I am simply asking for a conversation which was part of the res gestae of this particular transaction," Mason said. "It is a part of the transaction itself and it took place far in advance of this murder."

"That doesn't keep it from being a self-serving declaration, nor does it make it competent or relevant to the case at bar," Bailey said.

"I think I'll overrule the objection," Judge Alvarado said. "It is always my policy to give the defendant as much leeway as possible in cases of this sort. Answer the question."

"Yes," Desere Ellis said, "he said that it was his gun, one he had bought some time ago but had no use for."

"Did he show you anything about using it?"

"Yes, he took the shells out of it and taught me how to point it and pull the trigger."

"You knew then that it was a double-action revolver?"

"I beg your pardon, I don't understand."

"In other words, by pulling the trigger all the way back, you cock the hammer and then after the hammer has passed a certain point, it comes down on the firing pin so the shell is exploded and at that time the cylinder advances," Mason said. "The effect of this action is such that you can pull the trigger six times and fire six shots."

"Yes."

"What I am getting at," Mason said, "is that this gun he gave you was not an automatic; it was a revolver. In other words, the cylinder rotated."

"Yes."

"And what happened to this gun?" Mason asked.

"I kept it in a drawer in my bedroom, in a nightstand."

"When did you last see it?"

"I last saw it some two or three days before the twenty-first of September."

"Two or three days before the date of the murder?"

"Yes, sir."

"And when did you next look for the gun after that?"

"It was, I believe, either the twenty-third or the twenty-fourth of September."

"And how did you happen to look for it?"

"You asked me about it and I went to get it for you and then found it was gone."

"Cross-examine," Mason said.

Hamilton Burger, who seldom had an opportunity to cross-examine Mason's witnesses, inasmuch as Mason usually made a practice of winning his cases before the prosecution rested and by bringing out his defense from the prosecution's own witnesses, seized upon the opportunity with the eager avidity of a bird pouncing upon a hapless worm.

"What make was the gun that the defendant gave you?" he asked.

"What make?"

"Yes, who manufactured it? Was it a Colt, a Smith and Wesson, a Harrington and Richardson, a-"

She shook her head. "I don't know the brand, Mr. Burger."

"You don't know the manufacturer's name?"

"No, sir."

"You don't know the serial number?"

"No, sir."

"Yet when Perry Mason held this gun up in front of you and asked if you had seen this Smith and Wesson gun, number K524967 and you said it was the gun the defendant had given you, you were swearing to facts you didn't know. Is that right?"

"I relied upon Mr. Mason. It looked exactly like the gun Mr. Dutton had given me."

"Looked like it," Hamilton Burger sneered. "How many guns have you had in your possession?"

"Just the one."

"You never looked at the number on this gun?"

"No, sir."

"You don't even know where the number is located, do you?"

"No, sir."

"You say it looked like this gun," Hamilton Burger said, holding up the weapon. "People's Exhibit A-G?"

"Yes."

"Exactly like it?"

"As nearly as I can tell, exactly like it."

"Do you know how these weapons are made?"

"What do you mean?"

"You know that they are made by machinery and then assembled?"

"I assume as much."

"And do you know that there are hundreds-thousands-perhaps hundreds of thousands of guns of this exact make and model, guns which look exactly like this?"

"Well, I… I suppose so."

"You didn't notice any distinguishing marks on the gun which the defendant gave you, no scratches of any sort?"

"No, sir."

"So, for all you know, the defendant could have had half a dozen guns and simply handed you any one of these guns, told you that it was his and still been carrying another gun in his pocket?"

"Well, I… I can't identify this specific gun."

"Exactly," Burger said, "all you know is that the defendant gave you a gun. You don't know that he gave you this gun."

"I can't swear to it."

"Then you can't testify to it," Hamilton Burger said. "You're here to swear, not to guess."

The witness was at a loss for any answer.

Hamilton Burger tried a new attack.

"Prior to the disappearance of this gun, had the defendant called on you?"

"He had been at my apartment, yes."

"And while he was there, had he made some excuse to go to the place where you kept this gun? Think carefully now."

"He had a fight with Fred Hedley."