A Modern Wizard

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"Now, your Honor," said Mr. Bliss, "I would like to ask the prosecution whether this is the only witness upon whom they depend to prove the hypothesis that morphine was administered within three hours prior to the death of Miss Sloane?"

"That is our evidence on that point," replied Mr. Munson.

"Then, if it please the court, I move that all that testimony of Professor Orton's following and dependent upon the hypothetical question, shall be stricken from the records."

"State your grounds," said the Recorder.

"Your Honor admitted the question upon the express understanding, that the hypothesis that morphine had been administered within the specified time should be proven. The prosecution's own witness tells us that no such administration occurred during the last three hours of the life of the deceased. The proposition then hinges upon what this witness claims to have seen as she entered the room. She admits that she only saw Dr. Medjora remove a syringe. She did not see him insert it, and she could not possibly know what the contents of that syringe were."

"I think," said the Recorder, "that the question whether or not her testimony shows that Dr. Medjora administered a hypodermic of morphine is a question for the jury. The evidence may stand."

"We take exception," said Mr. Bliss. After a few moments consultation with Mr. Dudley he said to the witness: "That is all," and she was allowed to leave the stand. This ended the day's proceedings.

CHAPTER VII.

THE PROSECUTION RESTS

The first witness called, on the resumption of the trial, was a druggist, named Newton, who qualified as an expert pharmacist and chemist. He examined the pellets contained in the bottle identified by the professional nurse as the one which she had given to Mr. Munson. These he dissolved in water, and then submitted to chemical tests, from the results of which he pronounced them to be morphine. He testified that he recognized them as the usual pellets carried by physicians for hypodermic use. He was not cross-examined.

The next witness was Prof. Hawley, an expert pathologist. He swore that he had assisted at the autopsy, and in the main substantiated the evidence of Dr. McDougal, the Coroner's physician, agreeing with him, that from the physical appearances, the probable cause of death had been morphine poisoning. He was asked the hypothetical question and answered as did the other witness, that at least three grains must have been administered. Up to this point the evidence was merely cumulative, but Mr. Munson then essayed another line of inquiry.

"Professor," said he, "from your examination of this body can you tell us whether or not the deceased had been a mother?"

"I object!" cried Mr. Bliss springing to his feet, with more energy than he had yet exhibited. It was plain that though heretofore his objections to the admission of evidence may have been suggested rather by his desire to fully protect his client, than because he feared the testimony, this time he fought to exclude this evidence because of some vital interest, as though, indeed, this point having been foreshadowed in the early newspaper accounts, he had been fully instructed by Dr. Medjora. This became the more apparent, when Mr. Dudley himself took part in the argument, for the first time bringing the weight of his legal knowledge to bear upon the case publicly. For when the court asked for a cause of objection, it was Mr. Dudley who replied.

"May it please your Honor," said he, "it seems to us, that the fact which counsel here endeavors to introduce, is entirely irrelevant. Whether or not Miss Sloane was a mother, can have no possible connection with our client's responsibility for the crime of which he is accused. It is no more against the law to kill a mother, than to slay any other woman. We hope that your Honor will see the advisability of shielding the name of the dead from any such imputation as the guesses of even this celebrated expert might cast upon her."

"I really cannot see the bearing of this evidence," said the Recorder, addressing Mr. Munson.

"If it please your Honor," said Mr. Munson, "we wish to show that this girl was an unmarried woman; who nevertheless bore a child to the prisoner. Further, we will show that Miss Sloane was a poor girl, seeking to earn her living as a music teacher. Now the accused suddenly finds the opportunity to marry a wealthy woman, and the poor musician, with her claim upon him as the father of her child, becomes an obstacle in his path. Thus, your Honor, we supply a motive for this crime."

"But, your Honor," said Mr. Dudley, "there has not been a particle of evidence to prove any of these assertions, so glibly put for the benefit of the jury, and therefore we must contend that this evidence is entirely incompetent."

"As tending to explain the motive, I must rule that counsel may examine fully into the relations that existed between the prisoner and the deceased," said the Recorder.

"But," persisted Mr. Dudley, "even granting that this expert can say whether a woman has borne a child, which is a question of grave uncertainty, assuredly it cannot be claimed that he can testify as to the father of the child. Therefore he can throw no light whatever upon the relation which existed between the dead girl and our client."

"The question is admitted. The witness may answer!" replied the Recorder, upon which the defence entered an exception. The expert then answered:

"It was positively discernible that the deceased had been a mother."

"Can you state how long ago?"

"It is understood, your Honor," said Mr. Dudley, "that we take exception to this whole line of examination?" To this the Recorder nodded in assent, and the witness replied:

"Not within a year, I should say."

The witness was then yielded to the defence, but the cross-examination was confined entirely to the condition of the kidneys, thus making the prosecution's expert once more add to the evidence in favor of the defence, by admitting the diseased condition of organs, which it was claimed would materially affect the action of morphine in the system.

Next followed several witnesses, all of them boarders in the house where the deceased had dwelt. The object of their testimony was to show that the deceased passed in the house as a single woman, and that Dr. Medjora appeared in the light of an accepted suitor. They all denied that the girl had ever claimed that she was married, or that she had ever worn a wedding-ring. Under cross-examination they all admitted that they had never heard of, nor seen a child. It transpired that she had lived in the house a little more than a year, and that Dr. Medjora had been a visitor for less than half of that period.

Mrs. Sloane, the mother of the dead girl, then took the stand. She was dressed in deep mourning, and wept frequently. She testified that her daughter had always been of an unruly, headstrong disposition, and fond of enjoying herself. That she had been disinclined to work at home, and appeared to feel herself better than her own kith and kin. She had met Dr. Medjora at some musical party several years before, and the Doctor had become a constant visitor. "But I never liked the man. Somehow I knew that he was a cruel, dangerous man for a poor girl, with high ideas, like my Mabel." These remarks offered voluntarily, and delivered so rapidly that she could not be prevented from having her say, were objected to, and promptly ruled out, the Recorder agreeing with Mr. Dudley, that personal impressions could not be received in evidence against a man's character. Coming down to a later period, she explained that she and her daughter had "had some words about her going with that man," and the girl had suddenly left home. "Of course I knew she had been lured away by that black-hearted villain," ejaculated the witness, half sobbing. This was also ruled out, and the witness was admonished to restrain herself, and to confine her remarks to answering questions of counsel. She went on to say that she had received letters from time to time from the girl, post-marked from New York, but she had never discovered her address, nor seen her alive after they separated. In these letters, Miss Sloane had told her mother "not to worry," that she was "doing very well and hoped soon to do better;" that "my friend, the Doctor, has been very kind to me," and other passages of this nature. But there was never any allusion to a marriage, nor to Dr. Medjora as intending to marry her.

Under cross-examination, which was rather brief, she admitted that since her daughter left home, she had had no knowledge of her except through those letters, and that therefore she did not know, positively, that the girl had not been married. It was also made to appear that the girl had never been very happy in her home, and had frequently, even before her acquaintance with Doctor Medjora, expressed her determination to "leave home at the first chance." She also admitted, reluctantly, that she knew nothing, positively, against the character of the accused, "except that it was plain to be seen that he was a villain with no respect for a woman." This, of course, was stricken out.

The undertaker, who had originally taken charge of the body, was placed upon the stand, and testified that he had not removed the body from the house, when he was notified by the Coroner to retire from the case. Neither he, nor his assistants, had used any embalming fluid, nor had they injected any fluids whatever into the body before they gave it into the care of the Coroner's physician. He swore that it was the same body which had been shown to him as that of Mabel Sloane, that he had given to Dr. McDougal.

A few more witnesses were called in corroboration of minor details, and to protect the case of the prosecution from technical flaws of omission, and then Mr. Munson announced that their side would rest.

The crowd in the court-room leaned forward, as Mr. Dudley arose, eager to hear him open for the defence, as they supposed that he was about to do. Instead of this he addressed the court as follows:

"May it please your Honor, we must request you, before permitting the prosecution to rest, to instruct that Dr. Fisher be called as a witness."

"Dr. Fisher, your Honor," said Mr. Munson, "is not our witness. He is not named in the indictment. There is no reason, however, why the defence should not call him if they wish him."

"Upon what ground, Mr. Dudley," asked the Recorder, "do you make this motion?"

"Upon the ground, sir, that Dr. Fisher is an important witness to material facts connected with the demise of Miss Sloane. He was the senior attending physician, whilst Dr. Meredith had only been called in consultation. The prosecution have called Dr. Meredith, recognizing that as an attending physician his knowledge of the facts is material to the cause at issue. We claim that the testimony of Dr. Fisher, the other physician in attendance, and present at the death-bed, is equally material, and that the prosecution have no right to choose between the two men, selecting one as their witness, and rejecting the other. The fact that they have done so, would warrant the imputation that the prosecution are seeking for a conviction of our client, rather than looking for justice, in a thorough sifting of all available facts. I am sure that the honorable council on the other side will be only too glad to avoid such an imputation in the public mind, now that their attention has been called to the omission."

"Counsel is very generous," said Mr. Munson, with much sarcasm. "His solicitude for the reputation of the district attorney's office is very touching, but at the same time entirely misplaced. In this matter, those who have charge of the case of the commonwealth, feel that they can safely permit the conduct of this case to meet the most searching criticism. We decline to call Dr. Fisher, unless ordered to do so by the court."

"Then we move that the court so order," snapped back Mr. Dudley.

"It certainly seems to me," said the Recorder, "that the testimony of this physician is very material, and that he should have been included among the witnesses for the people. Have you any arguments against this view, Mr. Munson?"

"Only this, your Honor, that it was considered that the testimony of one witness would suffice. The selection was made without regard to known opinion, for none had been expressed prior to the issuance of a subpoena calling Dr. Meredith into the case. We decided to have but one witness, merely to save unnecessary costs. Now so far as this motion is concerned, we maintain that it comes too late. Counsel was served with a copy of the indictment, which contained a list of our witnesses upon the back. Thus they had ample notice of our intention not to call Dr. Fisher, and if they desired that we should do so, the motion should have been made earlier, and not at the end of our case."

"What have you to say in reply, Mr. Dudley?" asked the Recorder.

"Your Honor," said Mr. Dudley, showing by his bearing an assurance of gaining the point for which he contended; "the excuse that the name of Dr. Fisher does not appear among the list of witnesses for the prosecution, is entirely aside from the issue. It is a claim that has been made and rejected more than once. I need only remind your Honor of the Holden case, to bring it to your Honor's immediate recollection. That case was very similar to this one. Three surgeons had examined the body of the deceased, and but two of these had been called by the prosecuting attorney, counsel refusing upon the identical ground that his name had not appeared in the indictment. The presiding judge, Paterson, ruled that as a material witness, he must be called. That is precisely the condition here and I hope your Honor will see the justice of calling Dr. Fisher."