(The following then occurred in the hearing of the jury:)
Gen. Stewart—Of course, we do not want this part of the record to be in the papers. Of course we will have to keep that away from the jury. They will read that.
Gen. McKenzie—Your honor has a right to keep it from the jury.
Metcalf's Testimony Kept from Jury.
The Court—I will instruct the stenographers (reporters) to not give that part of the transcript to the newspapers. Do you object to that? Get this whole issue and then I can excuse the jury and hear from you.
Mr. Stewart—There are different kinds of evolution. We, of course, maintain it is limited to that particular kind described in this law suit.
Mr. Darrow—How is that?
Mr. Stewart—The point I am making is, there may be different kinds of evolution, perhaps there are, but this question we are insisting on in this case is just that one described by the act itself.
Mr. Darrow—By the act itself?
Mr. Stewart—By the act itself—the law.
Mr. Darrow—Well, you are going to object to that, too?
Mr. Stewart—I am objecting to a general question as to what evolution is. I suggest, your honor, that we discuss some points about this. We might ask your honor to retire the jury and thresh it out here.
Mr. Darrow—Suppose I ask one more question.
The Court—Let us get all the issues now that are going to be in dispute.
Mr. Stewart—We can put them in the record after the jury goes out, I take it, we will not object to it in that way.
Mr. Malone—I take it, we will not have the argument in the presence of the jury. If the attorney-general objects, I see no reason why we should not get the point up in the presence of the jury.
The Court—Of course, the question cannot prejudice the case, since there is no answer.
Mr. Darrow—Will you state what evolution is, in regard to the origin of man?
Mr. Stewart—We except to that.
Mr. Darrow—Now we are ready—
Mr. Stewart (Continuing)—On the further ground that we are excepting, your honor, to everything here that pertains to evolution or to anything that tends to show that there might or might not be a conflict between the story of the divine creation and evolution, and on the same theory we will except to this scientific testimony on the ground it is incompetent, because it is, so far as this case is concerned, it invades the province of the court and jury, and ask your honor to exclude the jury while we argue this matter.
Says Jurors Not Informed
Mr. Darrow—Of the jury, only one of whom every read about evolution, is forced to say what evolution is, without his hearing evidence.
Gen. Stewart—We want your honor to exclude the jury.
The Court—I suggest this, now, gentlemen. You have in mind what the issues are going to be on this question. I wish you would ask now such questions as would correctly and fairly make the issues, so that then I will excuse the jury and hear your argument on those questions, and not have to do it over and over again.
Mr. Stewart—And when we exclude the jury now, we do not want any more questions along this line. I think we have a right to insist that the jury not hear any of the rest of those. They have a certain duty to perform.
The Court—If you have—well, gentleinen of the jury, now, I think the radio, perhaps, is in operation, and when I excuse you gentlemen, I excuse you for the purpose that you do not hear the procedings up here. Please do not linger in the courthouse yard, because you might still perhaps stay up here as down there. I excuse you until 9 o'clock in the morning.
Juror Thompson—I just wanted the benefit of the jury there is not a
