but I do not believe there is any dispute between the lawyers on this method.
The Court—I will hear you.
Mr. Darrow—I only want a moment. I agree exactly what the practice is, not only here, but elsewhere. We offer certain evidence; the court refused it. We offer to call witnesses and the court said it was not competent. Now, we cannot predicate error on that unless we put in the record what we expected to prove by witnesses.
Your honor is quite right, and that is ordinarily right, too, stepping up to the shorthand reporter and stating what we expect to prove, telling the court and the shorthand reporter taking it down. That is exactly what we want to do here. We want to state it to the court and have it taken down by the shorthand reporter, or else pass them the statements we have already prepared to be used in the record in lieu of that.
We want to state to the court exactly what we expect these witnesses to swear to. How can there be any question?
The Court—Have you the affidavits?
Mr. Darrow—They are not affidavits, but statements.
Gen. Stewart—Have you the statements prepared?
Mr. Darrow—Yes.
Gen. Stewart—Then simply place them—let them turn them into the record, and proceed with the case.
Mr. Darrow—We think we have the right—
Gen. Stewart—To make a speech? That is what you are talking about!
Mr. Darrow—To choose our own way of protecting the record.
Gen. Stewart—I think not.
Mr. Darrow—We have a right, if we choose, to state in open court we expect to prove, for instance, Dr. Osborn—
The Court—How long will it take?
Mr. Darrow—I think, your honor, we will not need to read all of them; I think we could read all we wanted to in an hour, and then adopt their method on the rest.
The Court—What do you say?
Mr. MacKenzie—What do you say?
The Court—Let me ask you a question; they ask to file statements; they want an hour to briefly review what is in the statements.
Mr. MacKenzie—Can we see the statements?
Mr. Darrow—Certainly.
Mr. McKenzie—After he speaks an hour and tells us what he expects to prove, this is excluded testimony for the supreme court to review, how much closer to the facts than you are right now? Is your honor going to say under your statement, as judge of the Eighteenth Judicial Circuit of the state of Tennessee, if these gentlemen could prove that—have either of the witnesses fainted? Have they run off and has it gotten down to the point where these distinguished gentlemen have to take the statements, too? Not even concerned to? What does the statement of an hour mean in this record? Of course, they are entitled to preserve their exceptions.
Mr. Darrow—That is all?
Mr. McKenzie—Not what Mr. Hays of New York thought he hoped to prove? This is not an application for a continuance?
Mr. Hays—Why of New York?
Mr. McKenzie—I noticed you don't want to be of Tennessee, and hence I thought I would place you. We want you to have the respect of your own wishes, Brother Hays, and we have no objections to your living in New York.
Mr. Hays—(Not heard in the noise and continued talking of counsel.)
Mr. McKenzie—Please do not interrupt me. I am talking to the court, if you please. I will answer anything you want to ask, and write you a letter to boot.
Mr. Hays—You cannot—
Mr. McKenzie—Your honor, I was proud to see as a friend of these distinguished gentlemen among the many able Chattanooga lawyers up here, my distinguished friend, Frank Spurtock, one of the best lawyers in Tennessee, standing by Col. Darrow. If you want to get the Tennessee laws as to how to get this in the record, a make a statement in the record.
