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Mr. Bryan—If your honor please, if the object of the defense is to make a record for the higher court, that can be done by affidavits and we will not be allowed any affidavits, on the other side.

If the purpose of the defense is to present an argument with the purpose of pursuadingpersuading [sic] your honor that he was wrong, and in order to induce him to reverse himself, if that is the purpose of this, it cannot be a purely ex parte matter.

If they are allowed to present argument to the court that it should be wrong, and should reverse itself, we certainly should be allowed to present an argument on the other side. As long as it goes into the record for the other side, we are excluded, but so long as the defense is attempting to persuade this court and to secure action in this matter, it cannot be on side ex parte, it seems to me. We must be allowed to present our side to the court so that the court, when it comes to consider whether it should reverse itself, should have both sides of the case and not only the other side.

Mr. Malone—Mr. Bryan is guilty of the same fallacy in his statement now that he was guilty of the other day when he asked the right to cross-examine our witnesses who might be called merely for the purpose for which these statements are offered. The prosecution and the court sustained that objection to the admissibility of the testimony of our witnesses who were here. If the prosecution had not objected and your honor had admitted our witnesses, then Mr, Bryan would have the right he now wishes to claim to cross-examine witnesses. But after limiting us to witnesses to testifying to mere points in synopsis, he wanted to maintain all the broad rights which he would have had if our testimony had been admitted even without the prosecution having objected to our testimony being limited. Now, this morning he claims the right when limited not to witnesses, but statements, and I have the same right to answer that he cannot have the issue limited as to our offer of proof, the court having ruled upon it, and then claim all the broad rights which he would have if the proof had been admitted that we wish to offer.

Mr. Bryan—The point which the gentleman makes is not the point in this case. He says I object to the introduction of witnesses without the right to cross-examine. Now, even if the court had held that we had no right to cross-examine these witnesses on the ground that the testimony was not for the court to consider, but for the higher court, even if the court had so held and we had been permitted to cross-examine witnesses, I submit that this morning is in for an entirely different purpose. The argument to be made by the gentleman from New York is not for the higher court, but for this court, to persuade this court that it was wrong, to secure from this court a decision in this trial, and surely we are not to be banned from presenting our side, whenever they try to persuade this court to take an action that vitally affects this case. This is an entirely different point this morning, Mr. Malone, and had the other side been right when they objected to cross-examination, they cannot be right now, because if they had been right then, it would be simply because the evidence was for the upper court, which could not render a decision, but only remand the case for a new trial. Had they been right then, they cannot be right now, when their purpose is not to make a record for the higher court, but to persuade this court and secure a decision from this court for the acquittal of the defendant at this time.

Mr. Darrow—May I say a word in reference to Mr. Bryan's statement, if your honor please?

The Court—Judge MacKenzie, couldn't you furnish me some authorities on this question?

Mr. Hays—I have the authorities.

The Court—Just a minute, Col. MacKenzie.

Mr. MacKenzie—Your honor—

Mr. Darrow—I don't suppose there is any dispute between us lawyers on it, but you may differ, Mr. Bryan. If there is I suggest, your honor, that is a good way to send out for them,