statements are to be put in open court, why not put them in today?" That was at the very end. Do you now insist we not put in affidavits?
Gen. Stewart—Read what was said when you asked them for a continuance to Monday?
Mr. Hays (Reading)—"I don’t want to spend all next week." That was the reason, probably.
Gen. Stewart—That is the reason; a pretty good reason.
Mr. Hays (Reading) from Friday's minutes of the record.)
Gen. Stewart—The record further shows his honor stated you better have your affidavits prepared.
Mr. Hays—Statements, your honor said. I would like to make my reasons a little clearer, but Gen. Stewart perhaps will agree—
The Court—Yes.
Mr. Hays—First, I offer the proof in open court, while we are all here, so that, if the state's attorney desired to they have a right to deny that the witness would so testify. Secondly, the court should hear read the statements in order to properly certify them as part of the bill of exceptions on appeal. Thirdly, to consider whether the court erred in excluding the testimony from the jury; next, holding the statute unconstitutional, and to consider whether the testimony is not properly before the jury in that it tends to show that the theory of the divine creation of man, as set forth in the Bible, and that the science Scopes taught merely portrayed the manner of man's creation———. There are manifold reasons why the court should read these, and if we are wrong the court could point out to us, and if we are right we should have the benefit of reading them.
The Court—Why not read a synopsis?
Gen. Stewart—Why do you object to preparing them in written form and handing them to state's counsel?
Mr. Hays—It may be a habit or custom of mine, but I like to try my case in open court.
Gen. Stewart—I stated on Friday—
Mr. Hays—I believe under your practice I have a right to make my offer of proof in the form I want to?
Gen. Stewart—No.
Mr. Hays—I believe the prosecution should not insist we make our proof or prepare our record, but in a proper way as long as we are right.
Gen. Stewart—In the discretion of the court.
Mr. Hays—Of course it is, if we ask for anything unreasonable.
Gen. Stewart—It is anyway.
Mr. Hays—Is it unreasonable to state what we mean to prove by certain witnesses, when they can do no harm?
Gen. Stewart—I stated that the primary purpose of the defense is to go ahead with this lawsuit for the purpose of conducting an educational campaign and say to the publice through the press their idea of their theory. And I think that this thoroughly demonstrates that that statement was more than correct.
Mr. Hays—You see the prosecution not only attempts to state our theory of the case, but also to tell our purpose to the court. Why not do it?
The Court—Let us hear from the attorney-general.
Gen. Stewart—There could be no purpose in reading the statement, or making the statement in open court to this crowd, the people here, except for the purpose of furthering its educational campaign as they call it, or spreading propaganda as I call it. That is the only purpose. Put them in the record for the supreme court that it may review the statement when the statement reaches the supreme court. The record is being made up by the stenographers here and they can take the statements prepared and write them into the record, and we can proceed to the disposition of this case without the necessity and the time of arguing this matter out here before the court, Of course, these statements will have to be submitted to the court and counsel here.
