Gen. Stewart—Your honor, at this juncture, while Mr. Malone is on his feet, I think it is improper for him to argue that it is a religious question. Your honor has excluded in overruling the motion to quash this morning any such arguments as that, because your honor held that it did not violate that clause of the constitution that guaranteed religious liberty, and I think the statement is entirely out of order.
The Court—Have you finished your statement, Col. Malone?
Mr. Malone—I have not, sir. You know, your honor, we have been waiting for a long while to get busy here, so I must have a little bit of time.
The Court—You may proceed. It is difficult for me to cut out parts of his statement while he is reading You may proceed and I will rule on these questions when they are presented later in proof.
Mr. Malone (Continued reading)—"We maintain, and we shall prove that Christianity is bound up with no scientific theory, that it has survived 2,000 years in the face of all of the discoveries of science, and"—I would like a little quiet. I have got a loud voice, but I cannot talk during a lot of debating.
(Order was restored.)
(Mr. Malone continues reading down through pages 8, 9, down to and including, "The development of a child from a single cell to its birth," whereupon:
State Objects to Any Theory of Evolution Being Read
Mr. B. G. McKenzie—If the court please, we desire to enter an exception to Mr. Malone reading any theories in regard to evolution. In other words, may it please this honorable court, the question will present itself to your honor as to whether or not these scientific witnesses are competent. He is undertaking now, under his statement to influence the jury by reading a statement to them.
Mr. Malone—Just a moment, your honor will hear me on that statement.
Mr. McKenzie—Wait until I get through.
Mr. Malone—Yes, but I do not want his honor to rule until you hear me.
Mr. McKenzie—We do not want him to read that. Naturally if it is read, and your honor rules these scientific witnesses are incompetent for the defense, then Mr. Malone has no right to read a theory or theories on evolution in the presence of this jury, in order to prejudice them one way or the other, and present an argument in support of it.
The Court—I think it is proper for the court to withhold his rulings upon these questions until the evidence is offered. I will instruct the jury that this attorney, gentlemen, is merely making a statement that is not proof in the case. He is merely outlining what he hopes to prove, what his theory is. While it is your duty to hear the statement, but keep in mind that it is not evidence, and that you are not to consider this statement in determining the issues, but the purpose of the statement is to get before your minds in the beginning what they hope or propose to prove. Now, the court may later allow them to prove these theories, or the court may not allow them to be proven. So, it is difficult for me to chop his statement up, so I will just let you proceed.
Mr. Malone—Your honor, I entirely agree with the court, and I could not have stated it better myself. The defense is not pretending to give testimony, the defense is merely explaining its theory, and if when we offer this testimony, your honor does not want it, he can reject it.
The Court—Yes.
Mr. Malone (continuing reading)—"All these stages in development, etc.
(Following conclusion of Mr. Malone's statenient.)
Gen. McKenzie—If your honor, please, we again renew our motion to strike the argument and instruct the jury that it is unprecedented and unknown to the forms of law, for a lawyer to attempt to discuss
