"But I do claim that!" said Mr. Munson.

"What does it rebut?" asked the Recorder.

"This man claims that he was a true and loving husband to his wife, and denies that he contemplated such a marriage as this one, by which a wealthy wife would aid him to accomplish his ambitions."

"That claim, Mr. Munson, was made by counsel for the defence," said the Recorder. "It has not come out upon the witness stand. You cannot introduce a witness to rebut a statement of counsel. If you wished to introduce this evidence you should have questioned the prisoner upon these points when on the witness stand. Had he denied the desire to marry again, I would have allowed you to disprove his a.s.sertion by this witness. As it is, I must rule out the evidence offered."

Mr. Munson bit his lip in mortification, when the Recorder pointed out to him the serious omission made in the examination of the accused, but of course he was powerless to do anything. Having no other witness to call, when the jurors had returned to their seats, Mr. Bliss arose and addressed the jury.

CHAPTER X.

MR. BLISS MAKES HIS SPEECH.

"May it please your Honor and gentlemen of the jury," began Mr. Bliss, amidst an impressive silence, "in a few hours you will be called upon to act in a capacity which has been delegated to you by your fellow-men, but which finally is the province of our heavenly Father alone. You are to sit in judgment upon a human being, and accordingly as ye judge him, so shall ye be judged hereafter. I have not the least doubt of the integrity of your purpose; I fully believe that such verdict as you shall render will be honestly adopted, after the most thorough weighing of the evidence which has been presented to you. All I ask is that you form your final opinion with due recognition of the fact, that if a mistake is to be made, far better would it be that you release our client, if he be guilty, than that you should send him to the hangman, though innocent. I beg of you to remember that great as is the majesty of the law and the rights of the people, yet more must you respect the rights of this man, who stands alone, to defend himself against such an array of witnesses and lawyers, as the wealth of the whole commonwealth has been able to summon against him. The very weakness of his position, as compared with the forces against which he has to contend, should excite your sympathies. If there be any doubt in your minds, it becomes, not your privilege, but your sworn duty to accord it to him. For, as his Honor will undoubtedly explain to you when expounding the law, the prosecution must prove the charge beyond all doubt. The burden of proof is upon them. They claim that the deceased came to her death by poison administered by our client. They must therefore prove that she died of poison, and that the poison was given by Dr. Medjora. But they must prove even more than that, for they must show that it was given with intent to destroy life. Thus, if you decide that she died of diphtheria, of Bright's disease, of poison retained in the system, or even of the last dose which was taken by her, you are bound to acquit our client, unless indeed you should adopt the extraordinary conclusion, that the final dose of morphine alone produced death, and that Dr. Medjora himself administered it, intending that it should destroy his beloved wife, for whom he had retained skilled medical service and nursing, and at whose bedside he even tolerated the presence of his bitterest enemy, because he knew that the man possessed the greatest skill available in the vicinity of the house where the poor girl lay ill. Had he intended to injure his wife, had he premeditated poisoning her, do you think that he would have allowed a man to be nigh, who would be only too glad to find a pretext upon which to charge him with a crime, but who, moreover, was possessed of exactly the experience and ability needed to detect the symptoms of a deadly poison? The proposition is preposterous, and I am sure that such intelligent gentlemen as yourselves will cast it aside from you. But if the prosecution fail to prove that the girl did not die from natural causes, then they fail utterly to make out their case. Upon this point the law is most explicit. In fact in one of our great text books, a work recognized by the entire legal profession as the highest authority, I find a pa.s.sage which seems almost to have been written for your enlightenment in this very case. I will read it to you:

"'It does not follow that because a person is wounded and dies, the death is caused by the wound; and the burden in such cases is on the prosecution to show beyond reasonable doubt that the wound in question produced death. It may happen also, where poison has been administered, that death resulted from natural causes. The presence of poison may be ascertained from symptoms during life, the _post mortem_ appearances, the moral circ.u.mstances, and the discovery of the existence of poison in the body, in the matter ejected from the stomach, or in food or drink of which the sufferer has partaken. But to this should be added proof that the poison thus received into the system was the cause of death.'

"I think that pa.s.sage most clearly indicates to you the task which the prosecution have undertaken. Upon what do they rely for the accomplishment of their purpose? Two things mainly. Circ.u.mstantial evidence, and expert testimony. And now, if I may hope for your close attention, I will say a few words upon both of these cla.s.ses of evidence, in general.

"Circ.u.mstantial evidence, I need hardly tell you, is most delusive in its character. a.n.a.lyzed, what do we find it to be? It has been truly argued that there is, and can be, no cause without an effect. In considering circ.u.mstantial evidence, the mind of the investigator is presented with the relation of a number of facts, or effects, and he is asked to deduce that they are all attributable to a stated cause.

For example, a peddler is known to have started out upon a lonely road, and to have in his pack certain wares, a given amount of money in specified coins and bills, wearing a watch and chain, and he is subsequently found murdered, by the wayside. Later, a tramp is arrested upon whose person is found the exact missing money, and many of the articles which were known to have been in the pack. He is charged with the crime, and the evidence against him is circ.u.mstantial. His possession of these articles is an effect, which is said to be attributable to a cause, to wit, the killing of the peddler. But strong as such evidence may appear, as I have said, it is delusive. For just as the prosecution ask you to believe that a number of effects are traceable to a single cause, the crime charged, so also it is possible that all of the effects may have resulted from various causes. Thus in the case cited, the tramp may have been a thief, and may have stolen the articles from the peddler after some other person had killed him. And if it could be shown that the watch and chain were missing, and yet were not found upon the tramp, that would be as good evidence in his favor, as the other facts are against him. So that in circ.u.mstantial evidence the chain must be complete. If a single link be missing, or have a flaw, the argument is inconclusive, and a doubt is created, the benefit of which must invariably be given in favor of the accused.

"If this be true where there is a single link that has a flaw, what are we to say when we find that the entire chain is composed of links which are faulty? You are asked to decide that from this fact, and that fact, and the other fact, the accused is guilty of a crime!

Suppose that we show that from either the first, or the second, or the third fact, we can trace back to other causes as producing the result?

Why, then, the prosecution's case is rendered so fragile that the gentlest breath of a zephyr must blow each separate link to a different quarter of the globe. Now, that is what I shall endeavor to demonstrate; that, from the chief facts claimed by the prosecution, you may deduce innocence rather than guilt.

"First, we have the accuser, Dr. Meredith. He aids the prosecution's claim of poison by relating the symptoms of poisoning, which he says he observed before death. Now, even granting that this is a true statement of facts, observed by an unprejudiced mind,--of which, gentlemen, you can readily judge, when you recall the abundant testimony as to an existing animosity,--but, even granting its absolute truth, what does it show? Simply that morphine had been administered, in a dose large enough to have produced _ante-mortem_ evidences of its presence. But what of that? Does it show that the drug was administered by any particular person? By Dr. Medjora, as the prosecution have claimed? If so then I am ignorant, and ill informed as to all the rules of logic. It shows that morphine was present, and it shows no more, and no less. Now that fact we freely admit. The Doctor himself told you how the drug was taken, and there has been nothing whatever offered, that even tends to disprove his a.s.sertion.

Thus, as his testimony is all that we have upon the subject, and as it has been unimpeached, you are bound to accept it as the only evidence available. I may also remind you at this point, that in this country, where the G.o.d-given liberty of one man is as much cherished as that of the whole people, a man is to be considered innocent until after he has been adjudged guilty. He therefore goes upon the witness stand, as unsullied as any other witness, and his evidence is ent.i.tled to the same credence. I may also interject a momentary remark as to the difference between juridical and common judgment. You may see a man commit a crime and if accepted upon the jury which tries him, although you know that he is guilty, you are bound to bring him in innocent, unless the evidence introduced against him proves his guilt, entirely aside from your own prejudices or prejudgment. You must give a juridical opinion only. So that if you have imbibed any prejudices against Dr. Medjora,--which is scarcely probable, for he must have impressed you as favorably as he has every one else who has seen him in court,--but if so, you are to set that all aside, and accept his unimpeached evidence upon this point, relative to the administration of the morphine, as the only available evidence upon which to base an opinion. And if you do adopt that, and decide, as you necessarily would, that self-administered morphine cannot implicate Dr. Medjora in this crime, why the case is ended at once, and need scarcely go any further.

"However, merely as a matter of form, I will take up one or two more points. The second link in this circ.u.mstantial chain is that evidences of morphine were found at the autopsy. But, gentlemen, what of that?

You and I know how it entered the system, and of course we expect that eminent specialists, such as the gentlemen who performed the autopsy, must necessarily recognize the recent presence of the drug. It forms no particle of proof whatever against Dr. Medjora. That we see clearly enough, when we eliminate the bare facts from the fog of misinterpretation. But I may casually remind you of another fact, which these same eminent specialists told us about. They found that the kidneys were atrophied, an evidence of disease, and later we learned that if the kidneys are diseased morphine is retained in the system, until a poisonous dose may acc.u.mulate. So we see that even if the deceased was poisoned to death, it was only by the retention of many doses, due to a diseased condition, and in no way attributable to criminal interference.

"The next link is the actual presence of the drug, as testified by the expert chemists. They tell us that they found morphine. Why of course they did. It was in the system; we knew that it was there; and we are not at all shocked by the discovery.

"But I need not take up any other of these forged links, for, as you plainly see, the princ.i.p.al ones are so very faulty that as they are the mainstay of the bonds that bind our client, we break them asunder with scarcely an effort.

"Now, I will say a few words relative to expert testimony, and I beg of you to understand throughout, that however I may attack this sort of evidence as a cla.s.s, I speak in general terms only, and in no way cast any imputations against the scientific gentlemen who have appeared upon the stand, except as they come within the limitations of their cla.s.s, as I am about to explain to you.

"When expert testimony was first introduced it was received with marked respect. The expert witness was counted as a professor in his specialty, and his word was almost final. Experience, however, has materially altered all this. The field from which the expert may be cited has been vastly broadened, whilst at the same time his testimony is accepted with much more caution, and less credence. The causes which have operated towards this state of things are manifold, but I need not explain them here. Wherever there is any sort of specialty, from the blacking of boots, to the highest scientific pursuits, we now have experts who go upon the stand, and dogmatically inform us that their opinions are the true and only accepted finality upon the subject presented. But we have found, that however positive one, or two, or three experts may be in a.s.severating what they claim to be a fact, an equal number, of equally scientific, equally experienced, and equally trustworthy experts, may be found whose testimony will be equally as positive, though diametrically opposed. Indeed, so true is this, that I may quote the wise words of that eminent jurist Lord Campbell, who says: 'Skilled witnesses come with such a bias on their minds to support the cause in which they are embarked, that hardly any weight should be given to their evidence.' These are strong words, but what does Lord Campbell mean? That an eminent scientist would go upon the witness stand, and perjure himself merely because he has been engaged to substantiate a given proposition? Not at all. Of all experts, I may be permitted to say perhaps, that the most eminent are those connected with the professions, for we must rank the professions higher than the arts, just as the arts are above the trades. We have three great professions, to wit, the Ministry, Medicine, and Law. If we could have before us the most prominent Minister, the most celebrated Physician, and the most eminent Lawyer, we would probably have three men standing equally high in public esteem. Then let us suppose that this most eminent lawyer were engaged as counsel in some great suit. Suppose that some intricate technicality of law should arise, upon which the presiding judge should ask for argument and precedents. Suppose, then, that a.s.sociate counsel should place this most eminent lawyer upon the stand as an expert witness? Remembering that he had been paid for advocating the cause in behalf of which he was testifying, how much weight would his evidence have? I think you will agree that it would be very slight indeed! Yet is it not the same with the expert physician? Is not the skilled medical witness hired, and paid for his advocacy, just as that eminent lawyer was? Then why should we discard the evidence of the one, and accept the other?

Neither of these gentlemen commits perjury. What they tell, is honestly told. But--and, gentlemen of the jury, I now come to the vital point of this argument--the expert does not give us an unbiased opinion. The reason is plain. As experts can be found with varying opinions, so those are sought whose opinions agree with the position which they are called to sustain. To be more definite, the experts called by the prosecution in this case, were called, because it was known in advance what they would testify, and because said testimony would be favorable to the hypothesis of the prosecution. Though, I may say parenthetically, in this case it has proven otherwise. But, stated on general principles, that is the fact. The prosecution chooses experts, whose views can be relied upon to support the charge against the prisoner. And I must candidly confess that the defence is actuated similarly. Surmising in advance what the opposing experts would tell us, we went about amongst equally eminent men, and found no difficulty in selecting those who could with equal positiveness, with equal authority, and with equal experience and knowledge, support our hypothesis. Had we found a gentleman who entertained views similar to those of the prosecution's witnesses, do you suppose, for one moment, that we would have engaged such a man to aid us? Of course not! Then are the lawyers for the prosecution any more human than we? Do you suppose that they would call an expert, if they knew that his honest opinions would controvert their claims? Certainly not. Were they not loath to call Dr. Fisher? Thus, gentlemen, have we discovered, by a.n.a.lytical reasoning, the cause of the bias existing in the mind of an honest man. His opinion is sought in advance. If favorable he is engaged. When engaged he becomes a hired advocate, as much as the lawyer. Moreover, unlike the witness of facts, his testimony is tinged by a personal interest. He knows that celebrated experts will oppose his views. His reputation is on trial, as it were. If the verdict is for his side, it is a sort of juridical upholding of his position. He is therefore arrayed against his antagonists, as much as the lawyers of the opposing sides. In short, having once expressed an opinion, he will go to any extreme almost, to prove that he is right. The questions asked by the counsel for his side, the majority of which he prepares or dictates himself, are glibly and positively answered. But when the cross-examination begins, what do we see? An interesting spectacle from a psychological standpoint. We see a man, honest in his intentions, standing between two almost equal forces; the love of himself and of his own opinions, on the one side, and upon the other the love of scientific truth which is inherent in all truly professional men. When a question is asked, to which he can reply without injury to his p.r.o.nounced opinion, how eagerly he answers. But when a query is propounded, which his knowledge shows him in a moment, indicates a reply which his quick intelligence sees will be against his side, what does he do? We find that he fences with the question.

As anxious not to state what he knows to be false, as he is not to injure his side of the case, he parries. He tells you in hesitating tones, 'It may be so, in rare cases,' 'Other men have seen and reported such instances, but I have not met them,' 'It might be possible under extraordinary circ.u.mstances, but not in this case,' and so on, and so on, reluctant to express himself so that he may be cited afterwards. You have witnessed this very kind of evasion in this case, so that you readily grasp my meaning. When I asked Professor Orton, whether the action of morphine is modified by disease, his answer was, 'It might be'; and when I asked him whether, from continual dosage, it could acc.u.mulate in the system, he said, 'The records contain reports of such cases.' When I asked him if morphine would not be so retained where Bright's disease were present, he tried evasion again by saying, 'I have never seen such a case,' after which he admitted that he had read of them in good authorities.

"As I have told you, speaking generally, this sort of evasion under cross-examination is a peculiarity common to nearly all experts, so that in singling out Professor Orton as an example, I do so with no intention of attacking his honesty of purpose. He was simply defending himself, and upholding the side which pays him for his advocacy. But I choose this testimony because if we a.n.a.lyze it I think we will find more, much more than appears at a glance; and I can at the same time show you how all expert testimony should be received. I will exemplify the amount of caution to be displayed in accepting what a skilled witness tells. I will show you princ.i.p.ally, that what the expert testifies under cross-examination is more likely to be true, than what he tells the friendly lawyer on his own side.

"Now, when I asked Professor Orton whether Bright's disease would act as a cause to facilitate the acc.u.mulation of morphine in the system, he answered, 'I have never seen such a case.' That, gentlemen, is the set of words which I beg of you to a.n.a.lyze. Why did the Professor use just this language? For, mark you, it is a well-studied answer. Let us suppose that this eminent toxicologist had made an exhaustive series of experiments, which had proved, beyond all cavil, that the commonly accepted idea among physicians is wrong, and that Bright's disease will not effect an acc.u.mulation of morphine. How gladly would he have said 'No' to my question! How positively would he have a.s.serted that Bright's disease would not have the effect which we claim! Therefore, that he does not use any such dogmatic denial shows logically and conclusively that he has no such knowledge. He does not know, beyond all doubt, that Bright's disease will not modify the action of this poison. But we can see more in this answer. Suppose that, lacking absolute knowledge, he had still a firm conviction. He would then most probably have said, 'It is my opinion that Bright's disease does not modify the drug's action.' But, gentlemen, he had not even a conviction of this kind. On the contrary, he must either have known, or else have leaned towards the belief that such an acc.u.mulation is possible, otherwise he would not have said just what he did say: 'I have not seen such a case.' 'I have not seen such a case'! Why, the very words suggest that such a case has existed. More--that the Professor had heard of such cases, and believed in them. Perhaps he hoped that this evasive answer would be accepted as final. In that case, gentlemen, it might have served, in your minds, as well as a negative reply. But, gentlemen, a lawyer's mind is necessarily trained to the quick appreciation of situations like this. As soon as he had said that he had never seen such a case, I was prompted by intuition to ask if he had not heard of them. Then the fat was in the fire, and we had an admission, however reluctantly given, that he had heard of them, and from competent authority. But the very attempt on the part of this witness to parry the question, and evade a full and truthful reply, carries a conviction with it, that he recognized immediately the importance of our claim, and the possibility that it is a true explanation of the sad death of this young wife. He saw at once that all the d.a.m.ning evidences of the presence of poison, are explainable by this simple hypothesis, that Bright's disease might cause otherwise proper doses of morphine to acc.u.mulate until a lethal dose be present, and then act to destroy life. He therefore attempted to belittle the hypothesis. He could not refute it; he scarcely dared to deny it as a possibility, and therefore he essayed evasion.

"Thus we may deduce more from the reluctant admission of an expert, than from their glibly-told tales which have been rehea.r.s.ed in the office of the District Attorney. So that, after all, expert testimony is valuable--most valuable--if we but consider it with caution, and a.n.a.lyze it, until bereft of bias and prejudice, the grain of truth stands out, as truth ever will, conspicuous midst the ma.s.s of extraneous matter surrounding it, much of which is introduced for the express purpose of befogging your minds, and leading you away from the facts.

"Thus, gentlemen, upon closer examination we find that just as their circ.u.mstantial evidence was faulty, so the prosecution's experts prove a boomerang. For it is upon their evidence that we mainly rely for acquittal. Dr. McDougal, the Coroner's physician, examined the kidneys at the autopsy, and freely expressed the opinion that Bright's disease had been present. Of course he denied that this disease had caused death, but there we have the opinion of an advocate. Next we have Professor Orton, who, as I have shown, practically testifies that Bright's disease may cause morphine to acc.u.mulate in the system until a poisonous dose has resulted. Is not that enough, gentlemen, to satisfy you that, if this girl died of morphine, she died a natural death, and was not murdered? At least, does it not raise a doubt in your minds, which must be credited to Dr. Medjora, and which would deter you from sending him to the hangman? I am so positive that it must, that I will close this appeal, without calling your attention to the evidence, which has been abundant, and which indicates that death was not the result of poisoning at all, but of diphtheria, as indeed was certified in the burial permit. I could go over all the evidence in greater detail, but I am so strongly impressed with the innocence of our client, and so firmly confident that you are as capable as I am of reaching a proper conclusion in considering the evidence, that I will not take up more of your time, but leave our cause now in your care, satisfied that, regardless of the able rhetorical ability of the gentleman on the other side, you will be guided by Providence, and your own hearts, to aid the cause of justice and release Dr. Medjora from his present trying situation. And as you deal justly with him now, so may you receive your reward in the life hereafter."

CHAPTER XI.

TERMINATION OF THE GREAT CASE.

The District Attorney himself arose to speak for the commonwealth.

"May it please your Honor and gentlemen of the jury," he began, "you have just heard an able argument in behalf of the prisoner. Counsel has told you truly, that in this free Republic, which has become the refuge and asylum for the oppressed of all nations, the liberty of one man is as sacred as the rights of the whole people. He has also used the well-worn argument that the prisoner should have your sympathy, because of the weakness of his position. By this is meant, that the State; having wealth, can engage prosecuting officers of ability, whilst the prisoner, thrown upon his private resources, may be compelled to intrust his cause to the care of inferior counsel. But, gentlemen, you must see at a glance that our learned opponent has weakened his own argument by the unusual display of ability which he has exhibited in this case. Surely in his hands the cause of the prisoner is eminently safe! The commonwealth, with all its resources, cannot summon greater legal ability to its aid. Therefore you may relieve your minds of any idea of pity for the prisoner, and omitting all thought of him personally, decide this case entirely on the evidence.

"But if you find it difficult to disregard the fact that here is a man, whose liberty or life is at stake, then I bid you remember, that whilst it is true that his rights are equal to those of the State, they are no greater. The commonwealth must have equal place, in your judgment, with the prisoner.

"As the prosecuting attorney I stand in a somewhat peculiar position.

In ordinary lawsuits, opposing counsel are retained by the various sides, and are arrayed against each other solely. Under such circ.u.mstances the able arguments of Mr. Bliss would hold sway. I am alluding now to his attack upon expert witnesses. Let us suppose that a suit is brought to overthrow a will, the plaintiff arguing that the signature has been forged. Experts in chirography are called by both sides. It is manifest, as Mr. Bliss has said, that the opinions of experts will be sought by the contending counsel, and at the trial we would have those favoring the theory, forgery, testifying to that effect, whilst the others would support the genuineness of the signature. Undoubtedly, also, had either of these gentlemen expressed a different opinion prior to the trial, he would have been found upon the opposite side. Or, in plainer words, the men are hired to testify, because, previous to the trial, they hold an opinion favorable to the side which pays them. Thus, as has been shown to you at some length, eminent jurists now accord but cautious credence to expert testimony, because of the bias which must attend paid advocacy. But, gentlemen of the jury, as logical as all this is, when applied to a civil suit, it becomes but the most specious reasoning when introduced into a criminal case, such as this.

"We are often led astray by arguments, which contain a.n.a.logies which are but apparently a.n.a.logous. In this case there is a flaw at the very root of the argument, and therefore the very flower and fruit of the whole beautiful array of words must wilt and fail.

"This flaw is easily pointed out. In the civil case, as I have said, and as you know, opposing counsel defend but the side that pays them.

In a criminal case it is entirely different. The District Attorney is engaged, not for a special case, against a special prisoner, but by the whole community, for the protection of all the people. Now the prisoner is himself one of these, and his rights are ever in the minds of the very men who prepare the arguments against him. Let us glance for a moment at the _modus operandi_. Suspicion is aroused against a man. If sufficiently grave, the first bits of evidence attainable are presented to the Grand Jury, and perhaps they find an indictment. This gives the State authority to hold the prisoner by arrest, until such time when he may be tried. But, gentlemen of the jury, are all indicted men tried? Not at all. The District Attorney not infrequently, in the course of preparing a case, finds that an error has been made: that the man is the victim of circ.u.mstances: in short that he is innocent. What occurs then? Does he act the part of the hired lawyer and proceed, merely that he may collect a fee? Not at all. He protects the rights of the prisoner, as one of the people, and by due process of law the man is released from custody, free from even a stain upon his character.

"Now let us for a moment suppose that the charge is one of murder; of murder by poisoning, let us say. The first step is to place the medical investigation of the facts into the hands of eminent experts.

Here we find that the very resources of the commonwealth become the prisoner's greatest safeguard. The State having abundance of money, places this investigation into the care of the very ablest men to be obtained. It is not at all true, that these experts are retained because of their known opinions. When they are retained, they have no opinions whatever, because they are engaged to pursue an investigation, and their opinions are non-existent until after the conclusion of their a.n.a.lyses. Now, gentlemen, imagine that the commonwealth's counsel would be base enough to dispense with an expert witness, because his testimony would be detrimental to the hypothesis of the prosecution, would such a course be possible? Not at all. In the first place, the autopsy and the chemical a.n.a.lyses have been made upon the tissues of the body of the deceased. In the course of this work these tissues are rendered useless for any further a.n.a.lyses.

Therefore, the only investigation possible is the original one, and the only expert opinions obtainable are those of the men, who, as I have shown, are engaged long before they have any opinion to express.

If these men were omitted from the case then no experts could be called to replace them; but what would be worse, these very witnesses, discarded by the prosecution, would immediately be retained by the defence. For, as Mr. Bliss has candidly admitted, the defence only engages experts whose opinions are known to be favorable. That is the difference between the paid experts of the defence, and those engaged by the prosecution. The one is an advocate for a fee, whilst the other is merely an independent outsider, who relates the medical facts which he has found upon examination of the body of the deceased, and then explains the scientific deductions which he makes from these facts.

The witness of the defence is biased; the witness of the prosecution is not. No, gentlemen of the jury, when the experts for the prosecution form opinions which oppose the idea of a crime, the District Attorney has but one course which he can pursue. He must protect the prisoner, as it is his sworn duty to do, and obtain his release.

"But _per contra_, when these eminent medical men discover, within the tissues of the deceased, plain evidences of the fact that a crime has been consummated, it then becomes the duty of the District Attorney to prosecute the accused, and to produce, before a jury of his countrymen, the evidence which these gentlemen of science have discovered. And this cla.s.s of evidence is not only valuable, and pertinent, but it is indispensable. Without the a.s.sistance of experts, it would be almost impossible to convict a man of murder, by the use of poison. The pistol, the knife, and other weapons, all leave wounds discernible by the eyes of all. But poison works insidiously, and is unseen. As deadly as the bullet, it operates not only without noise, but in skilful hands the death may simulate that caused by known diseases, so that even eminent physicians might sign a burial permit, as did Dr. Fisher in this case, without a suspicion of the presence of the poison. But suspicion having been aroused, by the aid of science it is now possible to search microscopically into the tissues of the victim, and find every trace of poison if one has been used. And if, gentlemen, able men of science, prominent in their specialties, and honored by their professional brethren as well as by the community in which they dwell, make an impartial investigation of this nature, and report to you that they have found poison actually present, and in quant.i.ties which would have proved fatal, I submit it to your intelligence, gentlemen, is not that expert testimony of the most important character? Can we a.s.sail such evidence with the cry of bias, merely because it comes within the general category of expert testimony? Certainly not. You will therefore forget entirely the anathema which Mr. Bliss has delivered against experts, for though true enough against the cla.s.s, it does not apply in this instance.

"Before dismissing this phase of the subject, I must say a few words in defence of Professor Orton. Mr. Bliss pointed out to you that when an expert is replying to direct examination he answers readily, whereas, when answering the cross-examining lawyer, he is more cautious. This is true; but, gentlemen, what does that signify? Simply that having told the truth, the witness is compelled to defend himself against the traps that will be set for him by the opposite side. He knows in advance that he will be a.s.sailed by hypothetical and ambiguous questions, worded to confuse him, and to mystify the jury.

Under these circ.u.mstances, therefore, he must necessarily think well, before replying. He is in a court of law, under oath, and his professional reputation is at stake. If he were not cautious in his replies he would be worthless as a witness. He is justified, too, in parrying questions which he knows are introduced merely to disguise the truth, or to lead the minds of the jury into wrong channels. Mr.

Bliss has made much, or thinks that he has made much, of the answers which Professor Orton gave. By specious reasoning he tries to prove that Professor Orton believed that this woman died of an acc.u.mulation of morphine, caused by a diseased condition of the kidneys. Mr. Bliss tells us that he rests his case upon the evidence of our witnesses, and largely upon this admission from Professor Orton. Now, as a matter of fact, what Professor Orton did say cannot help the prisoner. He admitted that other men have held the opinion that diseased kidneys may cause an acc.u.mulation of morphine. But, gentlemen, how does that effect this case? This very witness, upon whom Mr. Bliss is willing to rely, tells us that whatever the possibilities might be in other cases, it is his positive belief that this particular woman did not die as claimed by the defence. He found poison in the stomach in considerable quant.i.ties, whereas, where death occurs by a slow acc.u.mulation, the drug would have pa.s.sed beyond that organ, and none would have been found there. So that we see, that what might be, and what perhaps has been in the past, has no bearing on this case even inferentially, because the same expert who says it is possible in other cases, tells us plainly that it did not occur in this instance.

"And now, before speaking of the actual evidence in this case, let me say a few words in regard to circ.u.mstantial evidence. It has been common practice for counsel defending criminal cases to inveigh against circ.u.mstantial evidence, until a suspicion has been engendered in the public mind, that it is of dubious value. Indeed, the people, knowing a little law, and understanding that all reasonable doubt must be accorded to the prisoner, and, further, having imbibed the idea that all circ.u.mstantial evidence contains a doubt, have come almost to feel that a conviction obtained by such means is a miscarriage of justice.

"This is entirely erroneous. All evidence is divided arbitrarily into two great cla.s.ses, direct and circ.u.mstantial. I do not here allude to doc.u.mentary evidence, which is somewhere between the two, the validity of the doc.u.ment being necessarily proved by one or the other. This cla.s.sification, as I say, is arbitrary, for he would indeed be a wise man who could tell us exactly where direct evidence ceases to be direct, or where circ.u.mstantial evidence becomes solely circ.u.mstantial. The two are so interdependent, that it is only by extreme examples that we can dissociate them. All direct evidence must be sustained by circ.u.mstances, whilst all circ.u.mstantial evidence is dependent upon direct facts.

"Let me give you an example of each, that this may be more clear to your minds. Let us suppose that several boys go to a pool of water to swim. One of these is seen by his companions to dive into the water, and he does not arise. His death is reported, and the authorities, later, drag the pool and find a body. This is called direct evidence.

The boy was seen to drown, you are told, and your judgment concedes the fact readily. But is the proposition proved, even though you have these several witnesses to the actual drowning? Let us see. The body is taken to the morgue, and the keeper there, an expert in such matters, makes the startling a.s.sertion that instead of a few hours, or let us say a day, the body must have been immersed for several days.

This is circ.u.mstantial evidence. The keeper has no positive knowledge that this particular body has been under water so long. Still he has seen thousands of bodies, and none has presented such an appearance after so short an interval. How shall we judge between such conflicting evidence? On the one side we have direct evidence which is most positive. On the other we have circ.u.mstantial evidence which is equally so. Is the original hypothesis proven? Does not the circ.u.mstantial evidence raise a doubt? Certainly. Now let us take another step. The witnesses to the drowning are called again, and view the body, and now among ten of them, we find one who hesitates in his identification. At once we find another circ.u.mstance wanting in substantiation of the original claim. Now we see, that all that was really proved was, that a boy was drowned, and not at all that it was this particular boy who was found. But is this even proved? How can it be, in the absence of the drowned body? Now suppose that, at the last hour, the original boy turns up alive, and reports that he had been washed ash.o.r.e down the stream and subsequently recovered. We find that our direct evidence, with numerous witnesses to the actual fact, was entirely misleading after all, because we had jumped to a conclusion, without duly considering the attendant circ.u.mstances of the case. So it is always. This is no case manufactured to point an argument. There is no such thing as positive proof, which does not depend upon circ.u.mstances. The old example may be cited briefly again. If you see one man shoot at another and see the other fall and die, can you say without further knowledge, that one killed the other? If you do, you may find later that the pistol carried only a blank cartridge, and that the man died of fright.

"It is equally true of circ.u.mstantial evidence, that without some direct fact upon which it depends it is worthless. As an example of this, I may as well save your time by introducing the case at issue.

If we could show you that the prisoner desired the death of this girl; that he profited by her death; that he had a secret in connection with her child which he can keep from the world better, now that she is dead; that she died under circ.u.mstances which made the attending physician suspect morphine poisoning; that as soon as the suspicion was announced, the prisoner mysteriously disappeared, and remained in hiding for several days; that he had the opportunity to administer the poison; that he understood the working of the drug; and other circ.u.mstances of a similar nature, the argument would be entirely circ.u.mstantial. All this might be true and the man might be innocent.

But, selecting from this array of suspicious facts, the one which indicates morphine as the drug employed, and then add to it the fact that expert chemists actually find morphine in the tissues of the body, and you see, gentlemen, that at once this single bit of direct evidence gives substantial form to the whole. The circ.u.mstantial is strengthened by the direct, just as the direct is made important by the circ.u.mstantial. The mere finding of poison in a body, though direct evidence as to the cause of death, neither convicts the a.s.sa.s.sin, nor even positively indicates that a murder has been committed. The poison might have reached the victim by accident. But consider the attendant circ.u.mstances, and then we see that a definite conclusion is inevitable. It is from the circ.u.mstantial evidence only that we can reach the true meaning of what the direct testimony teaches.