pect this court to rule correctly.
Mr. Darrow—No, sir, we do not.
(Laughter).
The Court—I suppose you anticipated it?
Mr. Darrow—Otherwise we should not be taking our exceptions here, your honor. We expect to protect our rights in some other court. Now, that is plain enough, isn’t it?
Then, we will make statements of what we expect to prove. Can we have the rest of the day to draft them?
The Court—I would not say—
Mr. Darrow—If your honor takes a half day to write an opinion—
The Court—I have not taken—
Mr. Darrow—We want to make statements here of what we expect to prove. I do not understand why every request of the state and every suggestion of the prosecution should meet with an endless waste of time, and a bare suggestion of anything that is perfectly competent on our part should be immediately over-ruled.
The Court—I hope you do not mean to reflect upon the court?
Darrow Evidently Peeved.
Mr. Darrow—Well, your honor has the right to hope.
The Court— I have the right to do something else, perhaps.
Mr. Darrow—All right; all right.
Mr. Bryan—May it please the court. Do I understand that the defense has decided to put on no witness, but simply to present affidavits?
Mr. Darrow—That is it; to present statements.
Mr. Bryan—And no cross-examination, I understand they were to present witnesses and we were to have a right to cross-examine.
Mr. Darrow—You wouldn't have a right to cross-examine if we put on witnesses for the purpose of showing what we expect to prove.
Gen. Stewart—The court has held he has—we are conducting this case as the court directs.
Mr. Darrow—So far.
Gen. Stewart—So long as it continues, I hope.
Mr. Bryan—-Your honor, then to be entitled to go in in the form of affidavits, would we have a right to produce any rebuttal?
Not for this court, but an upper court, is it to be a one-sided trial in the upper court, and will the upper court have nothing before it except the expert statements of the defendant? Or, will the plaintiff be entitled to put in, in the form of affidavits, its proof in rebuttal of what is promised or expected by the defendant.
Mr. Darrow—Mr. Bryan is naturally a little rusty in practice. Of course, the plaintiff has no such right. The question is, is it admissable now. After it has been heard, the state can introduce its rebuttal, but the question is, is this evidence which we offer admissable now? And, as long as the court has held it is not, we are expected to state what we will show.
The Court—I rather think, Col. Darrow is correct. The state's theory is that none of this proof is relevant to the issues, an have excluded their evidence, holding that under the issues made up under the statute that it is not relevant. Now, the only purpose the court would have in allowing them to put their testimony in the record would be that the higher courts might properly determine whether this court was in error or not in excluding their testimony If the court there decides that evidence was admissable, then it would not be a question there to determine which theory was correct. But the appelate court, independent of any number of affidavits, you would put in, would not attempt to pass upon the facts. But, if they found that this court had erred in excluding this expert testimony, the case would be sent back. So, I think you would not be entitled to put in any rebuttal proof, would be my conception.
Mr. Hays—Doesn't that mean that they are not entitled to cross-examine?
The Court—That is another question.
Mr. Darrow—We will present it as I said.
