Page:The World's Most Famous Court Trial - 1925.djvu/151

Rh the state has the opening and closing.

Mr. Hays—I am not sure of that. Not because your statement of procedure may be wrong, but you will perhaps remember that we had an agreement that we might make a motion to receive this scientific testimony, and I didn't understand—

Gen. Stewart—That agreement was withdrawn.

Mr. Hays—Let me finish, will you? We did not for a moment, suppose that you had any idea in your minds by changing the procedure you would have the opening and closing, thereby taking advantage of us in that way, and, therefore, we insist, as a matter of good faith, we should be permitted to argue this matter.

Gen. Stewart—That, of course—the agreement was mutually withdrawn because we found—

Mr. Hays—Pardon me, we never withdrew the agreement.

Mr. Malone—I was a party to it, and it was not mutually withdrawn.

The Court—I won't stand for any discussion between you gentlemen addressing yourselves to each other. You must address yourselves to the court. Let me hear the attorney-general's statement, and then I will hear you.

Gen. Stewart—This was to be brought up in the regular and usual way by objection made when the witness went on the stand. Now out of perhaps being overzealous to accommodate these gentlemen, I said to them on last Friday, I would take this up out of order—that is, on Monday, we would discuss this proposition as to whether the evidence of these witnesses would be competent, and upon reflection I found that that could not be done, and Mr. Malone and Mr. Neal and myself agreed that that was right, and that the matter would simply come up in its regular order. Later in the day—an hour later—Mr. Neal came to me and said that other counsel did not agree to that and I told him I felt it was an agreement that should stand, but, regardless of that—it doesn't make any difference about an agreement—it is a matter of procedure, and the record can not properly be made up, except in this way—we cannot make up a moot record—we cannot require the judge to give us an advisory opinion in advance—

Mr. Hays—Before the attorney-general starts to make his argument I wish to be heard on the question of the stipulation.

Court—Are you through with your statement, general?

Gen. Stewart—I was just fixing to make a motion to exclude this evidence.

Court—Then, I will hear your motion.

Gen. Stewart—By the way, I want to reduce this to writing.

Court—Do you want to do it now?

Gen. Stewart—Well, we can file this at noon.

Mr. Malone—May I suggest, before you pass upon this motion, that you hear—

Court—Oh, I will hear you, Colonel, but I cannot hear more than one at a time.

Mr. Malone—I don't want you to hear more than one at a time, your honor.

Court—Well, I think—go ahead, judge.

Gen. Stewart—The state moves to exclude the testimony of the scientists by which the counsel for the defendant claim that they may be able to show that there is no conflict between science and religion, or in question, and the story of divine creation of man, on the grounds that under the wording of the act and interpretation of the act, which we insist interprets itself, this evidence would be entirely incompetent.

The act states that should be unlawful, that this theory that denies the divine story of creation, and to teach instead thereof that man descended from a lower order of animals, with that expression, and they have admitted that Mr. Scopes taught that man descended from a lower order of animals, the act under what we insist is a proper construction thereof, would preclude any evidence from