CHAPTER VII.
THE PROSECUTION RESTS.
The first witness called, on the resumption of the trial, was adruggist, named Newton, who qualified as an expert pharmacist andchemist. He examined the pellets contained in the bottle identified bythe professional nurse as the one which she had given to Mr. Munson.These he dissolved in water, and then submitted to chemical tests,from the results of which he pronounced them to be morphine. Hetestified that he recognized them as the usual pellets carried byphysicians for hypodermic use. He was not cross-examined.
The next witness was Prof. Hawley, an expert pathologist. He sworethat he had assisted at the autopsy, and in the main substantiated theevidence of Dr. McDougal, the Coroner's physician, agreeing with him,that from the physical appearances, the probable cause of death hadbeen morphine poisoning. He was asked the hypothetical question andanswered as did the other witness, that at least three grains musthave been administered. Up to this point the evidence was merelycumulative, but Mr. Munson then essayed another line of inquiry.
"Professor," said he, "from your examination of this body can you tellus whether or not the deceased had been a mother?"
"I object!" cried Mr. Bliss springing to his feet, with more energythan he had yet exhibited. It was plain that though heretofore hisobjections to the admission of evidence may have been suggested ratherby his desire to fully protect his client, than because he feared thetestimony, this time he fought to exclude this evidence because ofsome vital interest, as though, indeed, this point having beenforeshadowed in the early newspaper accounts, he had been fullyinstructed by Dr. Medjora. This became the more apparent, when Mr.Dudley himself took part in the argument, for the first time bringingthe weight of his legal knowledge to bear upon the case publicly. Forwhen the court asked for a cause of objection, it was Mr. Dudley whoreplied.
"May it please your Honor," said he, "it seems to us, that the factwhich counsel here endeavors to introduce, is entirely irrelevant.Whether or not Miss Sloane was a mother, can have no possibleconnection with our client's responsibility for the crime of which heis accused. It is no more against the law to kill a mother, than toslay any other woman. We hope that your Honor will see theadvisability of shielding the name of the dead from any suchimputation as the guesses of even this celebrated expert might castupon her."
"I really cannot see the bearing of this evidence," said the Recorder,addressing Mr. Munson.
"If it please your Honor," said Mr. Munson, "we wish to show that thisgirl was an unmarried woman; who nevertheless bore a child to theprisoner. Further, we will show that Miss Sloane was a poor girl,seeking to earn her living as a music teacher. Now the accusedsuddenly finds the opportunity to marry a wealthy woman, and the poormusician, with her claim upon him as the father of her child, becomesan obstacle in his path. Thus, your Honor, we supply a motive for thiscrime."
"But, your Honor," said Mr. Dudley, "there has not been a particle ofevidence to prove any of these assertions, so glibly put for thebenefit of the jury, and therefore we must contend that this evidenceis entirely incompetent."
"As tending to explain the motive, I must rule that counsel mayexamine fully into the relations that existed between the prisoner andthe deceased," said the Recorder.
"But," persisted Mr. Dudley, "even granting that this expert can saywhether a woman has borne a child, which is a question of graveuncertainty, assuredly it cannot be claimed that he can testify as tothe father of the child. Therefore he can throw no light whatever uponthe relation which existed between the dead girl and our client."
"The question is admitted. The witness may answer!" replied theRecorder, upon which the defence entered an exception. The expert thenanswered:
"It was positively discernible that the deceased had been a mother."
"Can you state how long ago?"
"It is understood, your Honor," said Mr. Dudley, "that we takeexception to this whole line of examination?" To this the Recordernodded in assent, and the witness replied:
"Not within a year, I should say."
The witness was then yielded to the defence, but the cross-examinationwas confined entirely to the condition of the kidneys, thus making theprosecution's expert once more add to the evidence in favor of thedefence, by admitting the diseased condition of organs, which it wasclaimed would materially affect the action of morphine in the system.
Next followed several witnesses, all of them boarders in the housewhere the deceased had dwelt. The object of their testimony was toshow that the deceased passed in the house as a single woman, and thatDr. Medjora appeared in the light of an accepted suitor. They alldenied that the girl had ever claimed that she was married, or thatshe had ever worn a wedding-ring. Under cross-examination they alladmitted that they had never heard of, nor seen a child. It transpiredthat she had lived in the house a little more than a year, and thatDr. Medjora had been a visitor for less than half of that period.
Mrs. Sloane, the mother of the dead girl, then took the stand. She wasdressed in deep mourning, and wept frequently. She testified that herdaughter had always been of an unruly, headstrong disposition, andfond of enjoying herself. That she had been disinclined to work athome, and appeared to feel herself better than her own kith and kin.She had met Dr. Medjora at some musical party several years before,and the Doctor had become a constant visitor. "But I never liked theman. Somehow I knew that he was a cruel, dangerous man for a poorgirl, with high ideas, like my Mabel." These remarks offeredvoluntarily, and delivered so rapidly that she could not be preventedfrom having her say, were objected to, and promptly ruled out, theRecorder agreeing with Mr. Dudley, that personal impressions could notbe received in evidence against a man's character. Coming down to alater period, she explained that she and her daughter had "had somewords about her going with that man," and the girl had suddenly lefthome. "Of course I knew she had been lured away by that black-heartedvillain," ejaculated the witness, half sobbing. This was also ruledout, and the witness was admonished to restrain herself, and toconfine her remarks to answering questions of counsel. She went on tosay that she had received letters from time to time from the girl,post-marked from New York, but she had never discovered her address,nor seen her alive after they separated. In these letters, Miss Sloanehad told her mother "not to worry," that she was "doing very well andhoped soon to do better;" that "my friend, the Doctor, has been verykind to me," and other passages of this nature. But there was neverany allusion to a marriage, nor to Dr. Medjora as intending to marryher.
Under cross-examination, which was rather brief, she admitted thatsince her daughter left home, she had had no knowledge of her exceptthrough those letters, and that therefore she did not know,positively, that the girl had not been married. It was also made toappear that the girl had never been very happy in her home, and hadfrequently, even before her acquaintance with Doctor Medjora,expressed her determination to "leave home at the first chance." Shealso admitted, reluctantly, that she knew nothing, positively, againstthe character of the accused, "except that it was plain to be seenthat he was a villain with no respect for a woman." This, of course,was stricken out.
The undertaker, who had originally taken charge of the body, wasplaced upon the stand, and testified that he had not removed the bodyfrom the house, when he was notified by the Coroner to retire from thecase. Neither he, nor his assistants, had used any embalming fluid,nor had they injected any fluids whatever into the body before theygave it into the care of the Coroner's physician. He swore that it wasthe same body which had been shown to him as that of Mabel Sloane,that he had given to Dr. McDougal.
A few more witnesses were called in corroboration of minor details,and to protect the case of the prosecution from technical flaws ofomission, and then Mr. Munson announced that their side would rest.
The crowd in the court-room leaned forward, as Mr. Dudley arose, eagerto hear him open for the defence, as they supposed that he was aboutto do. Instead of this he addressed the court as follows:
"May it pl
ease your Honor, we must request you, before permitting theprosecution to rest, to instruct that Dr. Fisher be called as awitness."
"Dr. Fisher, your Honor," said Mr. Munson, "is not our witness. He isnot named in the indictment. There is no reason, however, why thedefence should not call him if they wish him."
"Upon what ground, Mr. Dudley," asked the Recorder, "do you make thismotion?"
"Upon the ground, sir, that Dr. Fisher is an important witness tomaterial facts connected with the demise of Miss Sloane. He was thesenior attending physician, whilst Dr. Meredith had only been calledin consultation. The prosecution have called Dr. Meredith, recognizingthat as an attending physician his knowledge of the facts is materialto the cause at issue. We claim that the testimony of Dr. Fisher, theother physician in attendance, and present at the death-bed, isequally material, and that the prosecution have no right to choosebetween the two men, selecting one as their witness, and rejecting theother. The fact that they have done so, would warrant the imputationthat the prosecution are seeking for a conviction of our client,rather than looking for justice, in a thorough sifting of allavailable facts. I am sure that the honorable council on the otherside will be only too glad to avoid such an imputation in the publicmind, now that their attention has been called to the omission."
"Counsel is very generous," said Mr. Munson, with much sarcasm. "Hissolicitude for the reputation of the district attorney's office isvery touching, but at the same time entirely misplaced. In thismatter, those who have charge of the case of the commonwealth, feelthat they can safely permit the conduct of this case to meet the mostsearching criticism. We decline to call Dr. Fisher, unless ordered todo so by the court."
"Then we move that the court so order," snapped back Mr. Dudley.
"It certainly seems to me," said the Recorder, "that the testimony ofthis physician is very material, and that he should have been includedamong the witnesses for the people. Have you any arguments againstthis view, Mr. Munson?"
"Only this, your Honor, that it was considered that the testimony ofone witness would suffice. The selection was made without regard toknown opinion, for none had been expressed prior to the issuance of asubpoena calling Dr. Meredith into the case. We decided to have butone witness, merely to save unnecessary costs. Now so far as thismotion is concerned, we maintain that it comes too late. Counsel wasserved with a copy of the indictment, which contained a list of ourwitnesses upon the back. Thus they had ample notice of our intentionnot to call Dr. Fisher, and if they desired that we should do so, themotion should have been made earlier, and not at the end of our case."
"What have you to say in reply, Mr. Dudley?" asked the Recorder.
"Your Honor," said Mr. Dudley, showing by his bearing an assurance ofgaining the point for which he contended; "the excuse that the name ofDr. Fisher does not appear among the list of witnesses for theprosecution, is entirely aside from the issue. It is a claim that hasbeen made and rejected more than once. I need only remind your Honorof the Holden case, to bring it to your Honor's immediaterecollection. That case was very similar to this one. Three surgeonshad examined the body of the deceased, and but two of these had beencalled by the prosecuting attorney, counsel refusing upon theidentical ground that his name had not appeared in the indictment. Thepresiding judge, Paterson, ruled that as a material witness, he mustbe called. That is precisely the condition here and I hope your Honorwill see the justice of calling Dr. Fisher."
"I am decidedly of the opinion, Mr. Munson, that counsel is in theright. This man is a witness material to the cause of justice!"
"Oh, certainly, if your Honor thinks so, we will call him. He wasomitted under the presumption that his evidence would be redundant,and add unnecessarily to the costs." Mr. Dudley sat down much pleasedat his victory, and older lawyers nodded approvingly at his skilfulpresentation of the law. Dr. Fisher, being in court, was then asked totake the stand. Mr. Munson examined him with evident reluctance.
"You attended Miss Sloane in her last illness, Doctor?" he began.
"Yes, sir!"
"From what disease was she suffering?"
"Diphtheria."
"Any other disease?"
"Not to my knowledge."
"Then of course you saw no symptoms of Bright's disease?"
"Well, my attention was not called to any such trouble."
"Be kind enough to give us a direct reply. Did you, or did you not,discover symptoms of Bright's disease?"
"I cannot say that she did not have that disease, but she made nocomplaints which made me suspect it."
"Exactly! You did not suspect that she had Bright's disease, until youheard it suggested here during this trial. Is that about it?"
"I did not consider it at all."
"Now, then, I believe that you called Dr. Meredith into the case?"
"Yes, sir."
"Why did you do that?"
"Because, despite the efforts of myself and Dr. Medjora, the girl didnot improve."
"That is to say, you found yourself incompetent to control thedisease?"
"I felt that I should have assistance. It is common practice to call aphysician in consultation when a disease becomes uncontrollable."
"He is usually a man who has special knowledge, is he not?"
"Yes, sir."
"And you considered Dr. Meredith such a man?"
"Yes, sir."
"That is to say, he had more knowledge of this disease than youyourself?"
"Not that precisely. But he has made a special study of the disease,and I knew that he could give us valuable advice."
"After Dr. Meredith came into the case the patient began to improve,did she not?"
"Yes, sir."
"On the last day of her life, you met Dr. Meredith at the house, andyou decided that it would be safe to leave the patient until thefollowing day, I believe. You found her much improved?"
"Yes, sir."
"The membrane had all disappeared, had it not?"
"Very nearly."
"So much so that she could swallow without difficulty?"
"She swallowed very well."
"In fact you concluded that she would recover?"
"I thought that she had passed the crisis, but I did not deem her tobe entirely out of danger."
"Did you, at any time during this illness, prescribe or administeropium in any form?"
"No, sir."
"Did you see any evidence of that drug exhibited by her condition,lethargic sleep, contracted pupils, or any other diagnostic symptom?"
"No, sir."
"Now, then, you left this girl in the afternoon, recovering from herattack of diphtheria and able to swallow, and you were hurriedlycalled back in the evening, and found her dying. Did not that surpriseyou?"
"Yes. I had not expected the disease to take a fatal turn, at leastnot so rapidly."
"Yet she was in such a condition that she could not even swallowcoffee?"
"No, but that----"
"Never mind the reasons, Doctor. The fact is all that we want. Shortlyafter your entrance into her room she died, did she not?"
"Yes, sir, at eleven thirty. About five minutes after."
"Now, Doctor, notwithstanding the fact that in the afternoon youthought this girl practically out of danger, and notwithstanding thesudden and alarming change which you saw in her that night, and inspite of the fact that the specialist whom you yourself had calledinto the case, reported to you that he suspected morphine poisoning,you signed a death certificate assigning diphtheria as the cause ofdeath. Now why did you do that?"
"Because it was my opinion!"
"Oh, I see. It was your opinion. Then you did not actually know it."
"Not actually of course. We never----"
"That is all!" exclaimed Mr. Munson, cutting off the witness at thepoint in his reply most advantageous to his side, and the Doctorremained silent, but appeared much annoyed.
Mr. Bliss smiled at the old legal trick, and in taking the witnessbegan at once, by allowing
him to finish the interrupted speech.
"Dr. Fisher," said he, "you had not quite ended your reply whencounsel closed your examination. What else was it that you wished tosay?"
"I wished to say that I could not actually know the cause of death,because medicine is not an exact science. It is rarely possible tohave absolute knowledge about diseased conditions. No two cases haveever been seen that were precisely identical."
"But you judged that this girl died of diphtheria from your experiencewith such cases, is that it?"
"Yes, sir."
"How much experience have you had!"
"I have been in practice nearly forty years."
"And Dr. Meredith, although a specialist, has had less experience thanyou, has he not?"
"I object," cried Mr. Munson, "Dr. Meredith was not an expert witnessin the first place, and it is too late to try to impeach his abilitynow."
"The objection is sustained," said the Recorder.
"Now, Dr. Fisher, as you signed a death certificate naming diphtheriaas a cause of death, of course that was your opinion at that time. Youhave been present throughout this trial, and have heard all of theevidence, I believe?"
"Yes, sir."
"Have you heard anything which has made you alter your opinion?"
"No, sir."
"Then tell us, please, in your opinion what was the cause of death."
"I still think that the girl died of diphtheria."
"Despite all the testimony as to finding morphine in the body, anddespite the condition of the kidneys, you still think that this girldied of diphtheria?"
"I do."
Mr. Bliss was taking full advantage of his victory over theprosecution, in compelling them to call this witness, who was nowgiving evidence so damaging to their side.
"Now, then, Doctor, we would like a little more light upon the factsfrom which you make this deduction. It has been testified and admittedby you, that in the afternoon the membrane had nearly all disappeared,and that the crisis had passed. Yet the girl died a few hours later,and you still attribute it to the original disease. How do you come tothat conclusion?"
"Diphtheria causes death in several ways. Commonly the false membranegrows more rapidly than it can be removed, and the patient ispractically strangled, or asphyxiated by it. It is in such a conditionthat tracheotomy is essayed, affording a breathing aperture below thelocality of the disease. It is not uncommon for the patient apparentlyto combat the more frightful form of the disease, so that the falsemembrane is thrown off, and the parts left apparently in a fair stateof health, so far as freedom to breathe and swallow is concerned. Butthen it may happen, especially in anaemic individuals, that this fightagainst the disease has left the patient in a state of enervation andlowered vitality, which borders on collapse. The extreme crisis ispassed, but the danger lurks insidiously near. At any moment a changefor the worse might occur, whilst recovery would be very slow. Whendeath comes in this form, it is a gradual lessening of vital actionthroughout the body; a slow slipping away of life, as it were."
"Exactly! So that such a condition might readily be mistaken for agradually deepening coma?"
"Yes, sir. Whilst the term coma is applied to a specific condition,the two forms of death are very similar. In fact, I might say it is asort of coma, which after all is common in many diseases."
"So that you would say that this coma, did not specifically indicatemorphine poisoning?"
"No, sir, it could not be said."
"How was the pulse?"
"The pulse was slow, but that is what we expect with this form ofdeath."
"So that the slow pulse would not necessarily indicate poison?"
"Not at all."
"Was the breathing stertorous?"
"Not in the true sense. Respiration was very slow, and there was aslight difficulty, but it was not distinctly stertorous."
"How were the pupils of the eyes? Contracted?"
"No, they were dilated if anything."
"Now then, Doctor--please consider this. Dr. Meredith told us that asymptomatic effect of morphine death, would be pupils contracted andthen dilating slowly as death approached. Now did you observe thecontracted pupils?"
"No, sir."
"What effect does atropine have upon the pupils?"
"It dilates them."
"Dr. Meredith admitted that he injected atropine. In your opinionwould that account for the dilatation of the pupils just previous todeath, which you say that you yourself observed?"
"I should say yes."
"I will only detain you another minute, Doctor." Mr. Bliss then askedfor and obtained the aluminum hypodermic case and handed it to Dr.Fisher. He asked:
"Doctor, do you recognize that?"
"Yes, it is mine."
"How long has it been out of your possession?"
"I missed it on the day of Miss Sloane's death. I think now that I mayhave left it there by accident."
Mr. Bliss then yielded the witness, and Mr. Munson began a re-directexamination, which was practically a cross-examination, because thiswitness, though technically for the prosecution, was in effect awitness for the defence. The lawyer tried with all his cunning toconfuse the old doctor, but the longer he continued the more hedamaged his own cause. About the only thing which he brought out thatmight help him, was the following in relation to the hypodermic case.
"How do you know that this case is yours?"
"Because it is made of aluminum. I had it made to order. I do notthink that such another is yet on the market, though the house thatmade mine for me, has asked permission to use my model."
"So this is certainly yours?"
"Yes, sir."
"If you did not make any injections, as you have testified that youdid not, how is it that you could have left this at the house?"
"I probably took it out of my bag, when getting out my laryngoscopeand other instruments to treat the throat."
"I see that this case not only contains the syringe, but also somesmall phials filled with tablets. What are those tablets?"
"They are various medicines used hypodermically."
"Was there any morphine in this case when you last saw it?"
"Yes, sir."
"How much?"
"There was a phial filled with tablets. Altogether eighty tablets, ofone eighth of a grain each."
"Please count the tablets remaining, and state how many there are?"
"I find forty-eight."
"That is to say thirty-two pellets have been taken out?"
"Yes, sir."
"Now, then, supposing that this is the identical syringe which thenurse saw Dr. Medjora using, and deducting the four pellets which shefound in the bed, how large a dose must have been administered at thattime?"
"I object!" said Mr. Bliss.
"It seems to be a mere matter of arithmetic," said the Recorder.
"No, your Honor. That question supposes that the tablets missing fromthe phial were administered to the patient. Now there is no evidencewhatever as to that?"
"Whether the missing tablets were administered or not is a questionfor the jury to decide. You may state, Doctor, how much morphine wascontained in the missing tablets."
"As there are forty-eight here, thirty-two are missing. Deductingfour, that leaves us twenty-eight, or a total of three and a halfgrains."
This was a corroboration of the estimate made by the experts, thatthree grains must have been the minimum dose administered, and if thejury should believe that these missing tablets had been given by theprisoner, it was evident that they must convict him. So that after allthe prosecution did gain something out of the witness who had beenforced upon them. They then rested their case, and court adjourned,leaving the opening for the defence until the following day.
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