favor, but we assume that the court won't take that position, but even if it is a question of law and involves only a question of judicial knowledge, your honor must receive the evidence and I take it if your honor does receive the evidence—this being a criminal case—the evidence must be given in the presence of the jury. This author says "Proof may be required of facts of which the court entertains doubt, even though they are subject for judicial notice. Especially may this be so when to the court's doubt is added denial of such facts." And in connection with that cites Marshall vs. Middleborough and Commonwealth vs. King, 150 Mass., 221. I am stressing this point not because I have any doubt that there are questions of fact, but because if your honor should confine us to the narrow ground in your judgment as to whether the evidence should be required, yet we are entitled to put in this evidence and it would be error to refuse to receive it. May I read that again, your honor? (Reading.)
"Proof may be required of fact of which the court entertains doubt, even though they are proper subjects for judicial notice. Especially may this be so when to the court's doubt is added denial of such facts."
Now there is another very interesting phase of this situation, which shows the necessity for evidence. The state here prosecutes Scopes—it is a crime as I understand it not to use school books prescribed by the state and to use a school book as Prof. Scopes used it, is also a crime. I assume that the state of Tennessee did not intend to make it a crime if the teacher used it and likewise make it a crime if the teacher didn't use it. I cannot imagine two laws, one of which compels a man to do a thing and another which makes it a misdemeanor for him to do it.
The Court—Let's see if I understand the proof a while ago on that, Mr. Hays. I understood Prof. White to say that the contract whereby it was provided that this Hunter's Biology was to be used, expired in August, 1924.
Mr. Hays—I understand that, but I understood until a new textbook was prescribed the state used the same book, but there will be further evidence on that subject. Of course he did not undertake to testify what the law was. I was merely using this for the purpose of illustration.
Crime Either Way.
If your new law intended to amend the old one it would have said so. I say as I look at it there are two laws in this state, one of which compels a teacher to use the book and the other of which makes it a crime for him to use the book. I don't think the Tennessee legislature meant by their statute to say something quite different from what was taught in the book, because in the meaning of the term, what is evolution, what is stated in the Bible, is a matter that requires evidence. If your state of Tennessee intended to make it a crime to teach things in that book at the same time compelling the teacher to use that hook, well, it has done something I believe no other state in the Union has ever done since the Union was founded and I don't think the state has done it, and I think the reason why those two statutes can be reconciled will come out in the evidence. When you gentlemen find out what evolution is we think you are compelled to take our theory because of those two laws which are diametrically opposed, unless you say which is evidence and find out what these facts are.
Now, your honor, one thing has rather surprised me about this motion on the evidence. I believe that when we all were lawyers and none of us were advocates that we all agreed upon this proposition. I refer, of course, to our opponents as well as, I may say, to your honor, we all agree upon the proposition that evidence was admissible. Mr. Bryan—I should not, perhaps, mention the name—the distinguished leader of the prosecution—
Court and Hays Argue Over Bryan's Name
The Court—There is no reason why you should not mention counsel's name.
