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ileged and against which actions have been brought—which have been dismissed be cause they were privileged. That is why I offer this testimony. If we cannot get the testimony in, I do not see how we can go on with this case. I can show this to be the law by the authorities.
Court.—The positions which you have laid down are very correct. For instance in order to illustrate, we all know it is necessary to view the human body in all its parts, for diseases of various kinds, by physicians, eminently proper required by medical science. What then? Why they should be properly treated under proper circumstances. You may do it before a clinic class, you may do it in a private chamber, but nobody would contend, that this thing ought to be brought into a court house, and there done, or taken upon the highway, and there expose the human person. Some things are proper to be done in secret, and others to be public. A publication of a medical character may properly be admitted to a class of students which certainly cannot be produced upon the public highway. It would then be obscene. In their places they are necessary to the scientific. It is the motive; it is the peculiar circumstances in the case upon which the case itself must be determined.
Mr. Kilgore.—That is just what we wish to show.
Court.—Now if it were shown that Dr. Landis was publishing these things any where to the injury of the morals of the town, then he would be guilty of an offence of obscene exposure and yet if it were done in a close room or done in the private chamber of a patient, which would be eminently proper, therefore, gentlemen, if this man does these things this way as a physician, it is unquestionably correct. But when a man does these things openly and publicly, which when done privately are not obscene, then they become incorrect and cannot be justified.
Mr. Kilgore.—If Your Honor please this book is a "Strictly Private Book For Married Persons," which says also on the title page of the book, "This Book Must Not Lie About the house, but every male and female should read it." We propose to show that not one of these books has been for sale to everybody like other medical works which are ten times as objectionable as this book, some of them in auction rooms in this city, at public sales, even. Dr. Landis has sold this book himself, and to adult persons only He put the price at one dollar for the very purpose of making it cost too much for children to purchase. He has kept these books under his own control. I propose to prove all this by several witnesses.
Court.—Then your offer is not in order.
Mr. Kilgore.—Please note an exception. I propose to show that this is the law; that the law will not presume malice in this case but on the other hand it will presume the innocence of the defendant. His malice must be shown by evidence.
We propose to show further, that this man has sacrificed more than five thousand dollars, during the last twelve months in this cause. That he is at this present moment not worth a hundred dollars, although he has an income of six thousand dollars from his practice, but that he gives nearly all of it for the reformation of the people, believing that in this way he is doing God's service, and following the example of the meek and lowly, but crucified Jesus.
Now Sir, If we can show that this book is a proper book to circulate
Mr. Gibbons.—Show the book to the jury and let them say.
Court.—I don't think it is a question for experts at all, every man is a judge.
Q.—Is this information proper to be given to the public by a physician?
Mr. Gibbons.—That has been ruled out sir.
Court.—Ruled out as a question for the jury.
Q.—Do you know Dr. Landis to be a regular physician?
Mr. Gibbons.—You have proved that by his certificate.
Q.—Do you know of similar works, published by physicians in regular standing?
Objected to as having been previously ruled out.
