"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, a.s.suredly 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 a.s.sent, 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 pa.s.sed 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," e.j.a.c.u.l.a.t.ed 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 pa.s.sages 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 a.s.sistants, 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 a.s.surance 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."

"I am decidedly of the opinion, Mr. Munson, that counsel is in the right. This man is a witness material to the cause of justice!"

"Oh, certainly, if your Honor thinks so, we will call him. He was omitted under the presumption that his evidence would be redundant, and add unnecessarily to the costs." Mr. Dudley sat down much pleased at his victory, and older lawyers nodded approvingly at his skilful presentation of the law. Dr. Fisher, being in court, was then asked to take the stand. Mr. Munson examined him with evident reluctance.

"You attended Miss Sloane in her last illness, Doctor?" he began.

"Yes, sir!"

"From what disease was she suffering?"

"Diphtheria."

"Any other disease?"

"Not to my knowledge."

"Then of course you saw no symptoms of Bright's disease?"

"Well, my attention was not called to any such trouble."

"Be kind enough to give us a direct reply. Did you, or did you not, discover symptoms of Bright's disease?"

"I cannot say that she did not have that disease, but she made no complaints which made me suspect it."

"Exactly! You did not suspect that she had Bright's disease, until you heard it suggested here during this trial. Is that about it?"

"I did not consider it at all."

"Now, then, I believe that you called Dr. Meredith into the case?"

"Yes, sir."

"Why did you do that?"

"Because, despite the efforts of myself and Dr. Medjora, the girl did not improve."

"That is to say, you found yourself incompetent to control the disease?"

"I felt that I should have a.s.sistance. It is common practice to call a physician in consultation when a disease becomes uncontrollable."

"He is usually a man who has special knowledge, is he not?"

"Yes, sir."

"And you considered Dr. Meredith such a man?"

"Yes, sir."

"That is to say, he had more knowledge of this disease than you yourself?"