Page:The World's Most Famous Court Trial - 1925.djvu/199

Rh, but if it would be legal without what precedes it that has to be given a construction.

Gen. Stewart—The meaning is that the legislature conceived in its mind that that theory did deny the story of creation and it wanted to be emphatic. It had in its mind the Bible, and it had in mind no man should teach a theory contrary to the story of the Bible creation.

Mr. Hays—Exactly the same as if the word "anand [sic]" was "or."

Gen. Stewart—No. It would not. Anything else?

Mr. Hays—Yes, sir. Perhaps we will agree on this. Hasn't the court to determine on a motion to dismiss as to whether this act is a reasonable act under the police power of the state?

Gen. Stewart—The court has passed upon that already.

Mr. Hays—Hasn't the court, with an open mind, met our argument when we move to dismiss and to produce evidence?

Gen. Stewart—A motion to dismiss is unknown in criminal procedure in Tennessee.

Mr. Hays—Or on a motion in arrest of judgment.

Gen. Stewart—It is unknown in criminal procedure, at this state of a trial.

Mr. Hays—At any rate I can bring up the question before the court in some fashion.

The Court—It cannot come until after conviction.

Mr. Hays—Whenever it comes. There will come a time in this case when we can make the argument that this act is unconstitutional, because it is unreasonable. If we may make that argument, we have a right to produce evidence before your honor in the trial of this case to show that the act is unreasonable. If we do not have that right, don't you agree that the court has a right to accept the evidence if it chooses to do so?

Gen. Stewart—No, sir; I absolutely do not.

Mr. Hays—I am sure of both of these propositions. On the same thing that the general is sure.

Gen. Stewart—I am just as sure you are wrong as I am sure I am right.

(Laughter and applause.)

Mr. Hays—As the man said to his wife, "You are right and I am wrong."

Gen. Stewart—What did she say?

Mr. Darrow—She said something or other.

The Court—Order please.

Gen. Stewart—Is that all?

Mr. Hays—I think those are the two important issues, though.

Gen. Stewart—Now, your honor, the first report, the first volume of the report of the proceedings of the supreme court of Tennessee, is called First Overton, and the second volume is called Second Overton. Digressing a moment from the immediate points at issue, the reports in that day were gotten out after the names of the judges on the supreme bench, and they then had three, perhaps.

Some weeks ago, in searching the books for something to aid a case, like in the construction of this act, I found a case in Second Overton, and, by the way, which is referred to in one of the United States supreme court reports. This was a lawsuit in which the legal question was, whether or not an entry was a special or general entry and the court in order to determine this, had to determine upon the construction of a statute.

I want to read, if your honor please, a part of what the court said:

"The reasoning powers of men differ as much as their faces. Sometimes different premises are assumed. At others different deductions are drawn from the same premises. With some the result of a process of reasoning is believed to be a fair inference from the premises taken, and consonant to the natural order and fitness of things. Whilst others think they see with equal clearness the process distorted, the result absurd and inconvenient. The truth is we are all imperfect beings, imperfection is the lot of humanity; and in