Page:The World's Most Famous Court Trial - 1925.djvu/152

148 any scientist, any expert, or any person, that there is no conflict between the story of divine creation, as taught in the Bible, and proof that a teacher tells his scholars that man descended from a lower order of animals.

The act says that they shall not teach that man descended from a lower order of animals according to our construction, and for these reasons this testimony would be incompetent.

In other words, the act does say that it shall be a violation of the law to teach such a theory, and, therefore, they cannot come in here and try to prove that what is the law is not the law. That would be the effect of it.

The Court—That is your motion, general?

Gen. Stewart—That is part of it, your honor.

The Court—Be careful not to get any argument into it.

Gen. Stewart—No, sir.

Another thing, your honor, is that this testimony undertakes to present to the jury the opinion of certain men who claim to be expert on this question of evolution, to give to the jury their opinion, when we insist that is the only issue now left to the jury to determine. There is no defense presented here or undertaken to be presented except by these scientific witnesses.

We have proved and have admitted yesterday—

The Court—Wait a minute, General, you are getting into argument.

Gen. Stewart—No, sir; I am not.

The Court—You say if you prove and they admit it would not be any part of your motion.

Gen. Stewart—Yes, sir; it is part of the motion, your honor, to show that there is no issue left except the issue as to whether or not this conflicts with the Bible.

The Court—I think you are making an argument.

Mr. Malone—I am sure he is, your honor.

Gen. Stewart—Now, then, we insist, if the court please, this is incompetent, because it invades the province of the court and the jury. It is not material to the issue here. It cannot be material to the issues. It is for the jury to say whether or not this conflicts, and that is an invasion of their rights, and of the right of the court. I think those are the true principal questions that I want to raise by this motion, that the act does prohibit it. And that under the rules of evidence it is an invasion of the province of the jury and the court.

Mr. Malone—Your honor, I would like to be heard very briefly, about the stipulation. There is no agreement between attorney-general, Dr. Neal and myself. It is question of fact.

Your honor will remember that for the convenience of our witnesses, and for the convenience of witnesses your honor agreed that this matter would be taken out of the usual order, and it was to have been heard on Monday last, and we worked over the week-end and were prepared to be heard on Monday last. But the vicissitudes of the trial interfered with it. On Sunday Gen. Stewart came to our house.

Gen. Stewart—On Saturday.

Mr. Darrow—He doesn't go on Sunday.

Mr. Malone—And saw—

Mr. Darrow—Wouldn't expect to find you there on Sunday, Mr. Malone?

Mr. Malone—No, I probably would not be there on Sunday, but I was at this time. Came out to see Judge Neal and myself, and for a personal reason stated that it would be better as a matter of public policy to revert to the original order. I didn't think it necessary and the General will probably not consider it necessary to state the reason in addition, but Judge Neal and I were sympathetic to his point of view, and then we went into the house—of course, we have other counsel, and the father of our house is Mr. Darrow.

Mr. Darrow—Grandfather.

Mr. Malone—And then we sat down and conferred on this matter. And it was determined that we should not