was adopted in substitution for that. I claim it indicates you cannot teach biology without teaching something about Darwin and evolution. If this law is unreasonable, it is, of course, unconstitutional. That shows how unreasonable that law is, that is one of the questions we have to make on the constitutionality of the statute. I take it that the court takes judicial notice of every fact that bears upon that question.
The Court—I have already passed upon it, but you have the right to have my action reviewed, of course.
Mr. Hays—No, I think we have a right to have your honor to pass upon it. We want to be heard in order to have it before the court should we desire to make a motion in arrest of judgment or the direction of a verdict.
The Court—Mr. Stewart, for the present I will let this book be filed. If I see proper I will exclude it later. It might be competent, I am not sure.
Gen. Stewart—We except.
Mr. Hays—I am referring to page 6 of "Biology and Human Welfare," by Peabody & Hunt, and page 463. I am quite ready to suggest, if the prosecution wants to use any other part of the book on appeal, or if we want to use any other part, that this same ruling be adopted as to the other parts. (Said book was thereupon received and marked defendant's exhibit, No. 2.)
Mr. Hays—If your honor please, we next desire to make another offer. I have, since the last hearing, looked up the law and inquired from prominent members and jurists of your bar as to the practice in your courts. I understand, of course, that the offer of proof must be made in the absence of the jury. I understand, further, that it is done in any one of three ways. Either you call your witness and first bring out the testimony by question and answer, so as to make your record; or, secondly, you state to the court what you intend to prove; or, thirdly, you make an affidavit, first handing it to opposing counsel. I believe all three ways are properly recognized and used. I am told that an attorney, so long as the jury is not present, is seldom, if ever, denied the right to make this offer of proof in his own way. We are anxious, your honor, to state what our offer of proof is, and we are particularly anxious to state it in reference to a statement that your honor made in the discussion on last Friday. You will remember that I suggested to your honor that it might be, after hearing some of the statements, you would change your ruling, at least as to some of it. For instance, we are prepared to prove what evolution is by a witness, and by the same witness what the Bible is, qualifying him as an expert on both subjects, and show according to a proper interpretation or translation of the Bible, or translation, these two parts of the act are not conflicting and Scopes' act has not conflicted with the first part. I don't say that will be convincing to your honor, but I suggest we want to prove it on that ground and also on the ground that after hearing the evidence your honor might change your opinion as to the reasonableness of this law. In the discussion I said: "I asked to be given an opportunity to show whether or not that law is reasonable or not." Your honor then told me this: That your honor would hear us. Here is what happened. I asked that it be put in evidence in this case in order to inform the court and give us an opportunity to show whether that law is reasonable or not. Your honor told me yesterday that your honor would hear us with an open mind.
Your honor said: "I am going to let you introduce evidence and I will sit here and hear it, and if that evidence were to convince me that I was in error, I would, of course, reverse myself.
Mr. Hays—That is true. I know you would do that.
The Court—You can introduce evidence for the other purpose and I will hear it, and I never hesitate to reverse myself if I find myself in error.
