go back to the regular order. But as we had considered the questions and given our time in the law library in the preparation of cases, briefs and citations, we should stand by the stipulation that was made.
Now, your honor, we were laboring under a delusion that when a stipulation was entered into in open court, in the presence of the court and the court thereafter set a time for hearing upon it, it was a binding stipulation. We afterwards found out it was the custom in Tennessee that a stipulation should be in writing. We had no idea that the stipulation should be in writing. When we found we had no legal rights, when the the prosecution decided to change its mind again, we did not insist upon the stipulation.
We wish to be fair and we wish to act as lawyers, when we are in Tennessee to act like the people of Tennessee, and when in Tennessee we are bound to know the theory of law, though not a question of fact, it is the theory of your state. We have the right, if we had argued on Monday, according to our ethical stipulation, to open and close this argument.
Gen. Stewart—What right? To open and close it?
Mr. Malone—It was our motion.
Gen. Stewart—For what?
Mr. Malone—Our motion that this evidence be heard. You objected to it.
Gen. Stewart—No, there was no objection. This was all just friendly conjecture.
Mr. Malone—After all, it is for the court to decide. We believe there is an ethical situation here. We have not insisted upon it, because we have been technically barred.
Gen. Stewart—I don't want them to feel that they have been technically barred. I feel this way about a matter of that sort. They don't need a stipulation of the court to hold me in line. A stipulation is a stipulation, with me wherever it is made. I think they should take the same position about it. Dr. Neal and Mr. Malone agreed—
Mr. Malone—We agreed there was merit in your contention.
Gen. Stewart—You agreed, and I came to your house to see you, and saw Dr. Neal.
Mr. Malone—What happened immediately after, when we went into conference? Dr. Neal went into—
Gen. Stewart—It seems to resolve itself into the question of who is in authority.
Mr. Malone—We know who is in authority. Mr. Darrow is in authority.
Gen. Stewart—You should have called him in conference when we went three miles out there to see you.
Mr. Malone—We came back three miles to tell you the truth.
(Laughter in the court room.)
Mr. Hays—General, we are visitors; why not let us go ahead?
The Court—As the court sees it, there is not much at issue.
Mr. Malone—Excepting the opening and closing, your honor.
The Court—It is immaterial, when you address this court, whether you open or close, no jury being present, the court seeking light and truth, and whether you speak in the beginning, or speak in the middle or at the back end, does not make any difference to me. I will hear you just as patiently and give what you say the same consideration.
I would not have counsel from foreign states feel that they have been taken advantage of. As I understood the stipulation a few days ago, for the convenience of counsel for the defendant, there was some negotiations that this question be raised without them bringing their witnesses to Tennessee, or some reason that was consummated. The court could only have acquiesced in it, no objection to it. Since it has been called off the court has no further concern as to that. This motion having been made by the state's counsel, to exclude this testimony, the court feels, under the rule of procedure in Tennessee, that the state is entitled to open and close. I do not see that that gives any advantage to either party myself, because I shall hear both sides alike.
To which ruling defendant duly excepts.
