Page:The World's Most Famous Court Trial - 1925.djvu/221

Rh Mr. Hays—That being so, I think your honor ought to permit us to enter the evidence for both purposes.

So I suppose we may assume in this offer to proof that we can make it in our own way.

The Court—I said, further, that I did not know about it. Of course all this discussion we have now we did not have before the court, the question as to how that would be introduced.

Mr. Hays—Yes, but your honor said you will hear us.

Gen. Stewart—Permit me to interrupt for just a minute.

Mr. Hays—Yes.

Gen. Stewart—On Friday we adjourned until Monday to give them an opportunity to prepare statements or affidavits of witnesses to he filed, I stated I would not agree to a continuance if we were to meet on Monday morning to spend a whole day in a harangue. I stated it expressly, and the record shows that. We adjourned with the express understanding that they would be permitted to prepare the affidavits for the record, and the only thing left for the court to determine, according to the court's own statement in response to an inquiry by Mr. Hays, as to whether or not the affidavits would be read.

Mr. Hays—That is what I wanted to do. I want to present my offer of evidence, stating that we would prove such and such a thing by such and such a witness.

The Court—You mean you will make the statement yourself, Mr. Hays?

Mr. Hays—Oh, yes; yes, sir.

The Court—Gen. Stewart, do you object to that?

Gen. Stewart—How is that?

The Court—Do you object to his statement that he hopes to prove so and so by certain witnesses?

Gen. Stewart—Your honor, the statement could be made for the record and we would except to it being stated in open court.

The Court—Of course. I want to hear it or want to read it, one.

Gen. Stewart—Your honor could read it. About how long would it take to make these statmentsstatements [sic]?

Mr. Hays—I do not know. If I presume on the patience of the court, the court will stop me. But this is in the absence of the jury.

The Court—I know, of course, you would not expect to read all of the statements, but would merely summarize it.

Mr. Hays—I will merely state what I expect to prove. Some I would summarize, others I would read.

Gen. Stewart—That is not the correct way to put it into the record. If it is to go in in affidavit form, it must have the effect of testimony.

Mr, Hays—I do not understand. I understand statements are allowed to go in.

Gen. Stewart—They must be sworn to.

Mr. Hays—I do not understand the practice. That is not the practice in your state, Gruso vs. State, 95 Tennessee, appears the statement that where you do file a statement, "one way is for counsel to write it out at that time, what is expected to be proved, hand it to opposing counsel, so there is no dispute." It cannot find anything in that case that requires any affidavits being sworn to whatever.

The Court—What about the agreement when we adjourned Friday?

Gen. Stewart—It was to be prepared. We made no such statement. You said you would present the statements to be read in court. That you would have to, prepare these, because your scientists were going away.

Mr. Hays—Exactly. We could not prepare these in their absence.

Gen. Stewart—I suggest, your honor, the record will show the word "affidavit" was used, that is the understanding.

Mr. Hays—It was used in one place and not another, "Statement" was used, statements, of course.

Gen. Stewart—We adjourned on Friday to give them the opportunity to prepare them.

Mr. Hays—After our discussion on Friday the court said: "If the