A Modern Wizard

by Rodrigues Ottolengui

CHAPTER VII.

THE PROSECUTION RESTS.

The first witness called, on the resumption of the trial, was a druggist, named Newton, who qualified as an expert pharmacist and chemist. He examined the pellets contained in the bottle identified by the 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. He testified that he recognized them as the usual pellets carried by physicians for hypodermic use. He was not cross-examined.

The next witness was Prof. Hawley, an expert pathologist. He swore that he had assisted at the autopsy, and in the main substantiated the evidence of Dr. McDougal, the Coroner's physician, agreeing with him, that from the physical appearances, the probable cause of death had been morphine poisoning. He was asked the hypothetical question and answered as did the other witness, that at least three grains must have been administered. Up to this point the evidence was merely cumulative, but Mr. Munson then essayed another line of inquiry.

"Professor," said he, "from your examination of this body can you tell us whether or not the deceased had been a mother?"

"I object!" cried Mr. Bliss springing to his feet, with more energy than he had yet exhibited. It was plain that though heretofore his objections to the admission of evidence may have been suggested rather by his desire to fully protect his client, than because he feared the testimony, this time he fought to exclude this evidence because of some vital interest, as though, indeed, this point having been foreshadowed in the early newspaper accounts, he had been fully instructed by Dr. Medjora. This became the more apparent, when Mr. Dudley himself took part in the argument, for the first time bringing the weight of his legal knowledge to bear upon the case publicly. For when the court asked for a cause of objection, it was Mr. Dudley who replied.

"May it please your Honor," said he, "it seems to us, that the fact which counsel here endeavors to introduce, is entirely irrelevant. Whether or not Miss Sloane was a mother, can have no possible connection with our client's responsibility for the crime of which he is accused. It is no more against the law to kill a mother, than to slay any other woman. We hope that your Honor will see the advisability of shielding the name of the dead from any such imputation as the guesses of even this celebrated expert might cast upon 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 this girl was an unmarried woman; who nevertheless bore a child to the prisoner. Further, we will show that Miss Sloane was a poor girl, seeking to earn her living as a music teacher. Now the accused suddenly finds the opportunity to marry a wealthy woman, and the poor musician, with her claim upon him as the father of her child, becomes an obstacle in his path. Thus, your Honor, we supply a motive for this crime."

"But, your Honor," said Mr. Dudley, "there has not been a particle of evidence to prove any of these assertions, so glibly put for the benefit of the jury, and therefore we must contend that this evidence is entirely incompetent."

"As tending to explain the motive, I must rule that counsel may examine fully into the relations that existed between the prisoner and the deceased," said the Recorder.

"But," persisted Mr. Dudley, "even granting that this expert can say whether a woman has borne a child, which is a question of grave uncertainty, assuredly it cannot be claimed that he can testify as to the father of the child. Therefore he can throw no light whatever upon the relation which existed between the dead girl and our client."

"The question is admitted. The witness may answer!" replied the Recorder, upon which the defence entered an exception. The expert then answered:

"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 take exception to this whole line of examination?" To this the Recorder nodded in assent, and the witness replied:

"Not within a year, I should say."

The witness was then yielded to the defence, but the cross-examination was confined entirely to the condition of the kidneys, thus making the prosecution's expert once more add to the evidence in favor of the defence, by admitting the diseased condition of organs, which it was claimed would materially affect the action of morphine in the system.

Next followed several witnesses, all of them boarders in the house where the deceased had dwelt. The object of their testimony was to show that the deceased passed in the house as a single woman, and that Dr. Medjora appeared in the light of an accepted suitor. They all denied that the girl had ever claimed that she was married, or that she had ever worn a wedding-ring. Under cross-examination they all admitted that they had never heard of, nor seen a child. It transpired that she had lived in the house a little more than a year, and that Dr. 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 was dressed in deep mourning, and wept frequently. She testified that her daughter had always been of an unruly, headstrong disposition, and fond of enjoying herself. That she had been disinclined to work at home, 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 the man. Somehow I knew that he was a cruel, dangerous man for a poor girl, with high ideas, like my Mabel." These remarks offered voluntarily, and delivered so rapidly that she could not be prevented from having her say, were objected to, and promptly ruled out, the Recorder agreeing with Mr. Dudley, that personal impressions could not be received in evidence against a man's character. Coming down to a later period, she explained that she and her daughter had "had some words about her going with that man," and the girl had suddenly left home. "Of course I knew she had been lured away by that black-hearted villain," ejaculated the witness, half sobbing. This was also ruled out, and the witness was admonished to restrain herself, and to confine her remarks to answering questions of counsel. She went on to say 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 Sloane had told her mother "not to worry," that she was "doing very well and hoped soon to do better;" that "my friend, the Doctor, has been very kind to me," and other passages of this nature. But there was never any allusion to a marriage, nor to Dr. Medjora as intending to marry her.

Under cross-examination, which was rather brief, she admitted that since her daughter left home, she had had no knowledge of her except through those letters, and that therefore she did not know, positively, that the girl had not been married. It was also made to appear that the girl had never been very happy in her home, and had frequently, even before her acquaintance with Doctor Medjora, expressed her determination to "leave home at the first chance." She also admitted, reluctantly, that she knew nothing, positively, against the character of the accused, "except that it was plain to be seen that 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, was placed upon the stand, and testified that he had not removed the body from the house, when he was notified by the Coroner to retire from the case. Neither he, nor his assistants, had used any embalming fluid, nor had they injected any fluids whatever into the body before they gave it into the care of the Coroner's physician. He swore that it was the 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 of omission, and then Mr. Munson announced that their side would rest.

The crowd in the court-room leaned forward, as Mr. Dudley arose, eager to hear him open for the defence, as they supposed that he was about to do. Instead of this he addressed the court as follows:

"May it please your Honor, we must request you, before permitting the prosecution to rest, to instruct that Dr. Fisher be called as a witness."

"Dr. Fisher, your Honor," said Mr. Munson, "is not our witness. He is not named in the indictment. There is no reason, however, why the defence should not call him if they wish him."

"Upon what ground, Mr. Dudley," asked the Recorder, "do you make this motion?"

"Upon the ground, sir, that Dr. Fisher is an important witness to material facts connected with the demise of Miss Sloane. He was the senior attending physician, whilst Dr. Meredith had only been called in consultation. The prosecution have called Dr. Meredith, recognizing that as an attending physician his knowledge of the facts is material to the cause at issue. We claim that the testimony of Dr. Fisher, the other physician in attendance, and present at the death-bed, is equally material, and that the prosecution have no right to choose between the two men, selecting one as their witness, and rejecting the other. The fact that they have done so, would warrant the imputation that the prosecution are seeking for a conviction of our client, rather than looking for justice, in a thorough sifting of all available facts. I am sure that the honorable council on the other side will be only too glad to avoid such an imputation in the public mind, now that their attention has been called to the omission."

"Counsel is very generous," said Mr. Munson, with much sarcasm. "His solicitude for the reputation of the district attorney's office is very touching, but at the same time entirely misplaced. In this matter, those who have charge of the case of the commonwealth, feel that they can safely permit the conduct of this case to meet the most searching criticism. We decline to call Dr. Fisher, unless ordered to do 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 of this physician is very material, and that he should have been included among the witnesses for the people. Have you any arguments against this view, Mr. Munson?"

"Only this, your Honor, that it was considered that the testimony of one witness would suffice. The selection was made without regard to known opinion, for none had been expressed prior to the issuance of a subpoena calling Dr. Meredith into the case. We decided to have but one witness, merely to save unnecessary costs. Now so far as this motion is concerned, we maintain that it comes too late. Counsel was served with a copy of the indictment, which contained a list of our witnesses upon the back. Thus they had ample notice of our intention not to call Dr. Fisher, and if they desired that we should do so, the motion 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 of gaining the point for which he contended; "the excuse that the name of Dr. Fisher does not appear among the list of witnesses for the prosecution, is entirely aside from the issue. It is a claim that has been made and rejected more than once. I need only remind your Honor of the Holden case, to bring it to your Honor's immediate recollection. That case was very similar to this one. Three surgeons had examined the body of the deceased, and but two of these had been called by the prosecuting attorney, counsel refusing upon the identical ground that his name had not appeared in the indictment. The presiding judge, Paterson, ruled that as a material witness, he must be called. That is precisely the condition here and I hope your Honor will see the justice of calling Dr. Fisher."

"I am decidedly of the opinion, Mr. Munson, that counsel is in the right. This man is a witness material to the cause of justice!"

"Oh, certainly, if your Honor thinks so, we will call him. He was omitted under the presumption that his evidence would be redundant, and add unnecessarily to the costs." Mr. Dudley sat down much pleased at his victory, and older lawyers nodded approvingly at his skilful presentation of the law. Dr. Fisher, being in court, was then asked to take 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 no complaints which made me suspect it."

"Exactly! You did not suspect that she had Bright's disease, until you heard 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 did not improve."

"That is to say, you found yourself incompetent to control the disease?"

"I felt that I should have assistance. It is common practice to call a physician 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 you yourself?"

"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, and you decided that it would be safe to leave the patient until the following 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 to be entirely out of danger."

"Did you, at any time during this illness, prescribe or administer opium 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 her attack of diphtheria and able to swallow, and you were hurriedly called back in the evening, and found her dying. Did not that surprise you?"

"Yes. I had not expected the disease to take a fatal turn, at least not so rapidly."

"Yet she was in such a condition that she could not even swallow coffee?"

"No, but that——"

"Never mind the reasons, Doctor. The fact is all that we want. Shortly after 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 you thought this girl practically out of danger, and notwithstanding the sudden and alarming change which you saw in her that night, and in spite of the fact that the specialist whom you yourself had called into the case, reported to you that he suspected morphine poisoning, you signed a death certificate assigning diphtheria as the cause of death. 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 the point in his reply most advantageous to his side, and the Doctor remained silent, but appeared much annoyed.

Mr. Bliss smiled at the old legal trick, and in taking the witness began at once, by allowing him to finish the interrupted speech.

"Dr. Fisher," said he, "you had not quite ended your reply when counsel closed your examination. What else was it that you wished to say?"

"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 to have absolute knowledge about diseased conditions. No two cases have ever been seen that were precisely identical."

"But you judged that this girl died of diphtheria from your experience with 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 than you, has he not?"

"I object," cried Mr. Munson, "Dr. Meredith was not an expert witness in the first place, and it is too late to try to impeach his ability now."

"The objection is sustained," said the Recorder.

"Now, Dr. Fisher, as you signed a death certificate naming diphtheria as a cause of death, of course that was your opinion at that time. You have been present throughout this trial, and have heard all of the evidence, 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, and despite the condition of the kidneys, you still think that this girl died of diphtheria?"

"I do."

Mr. Bliss was taking full advantage of his victory over the prosecution, in compelling them to call this witness, who was now giving evidence so damaging to their side.

"Now, then, Doctor, we would like a little more light upon the facts from which you make this deduction. It has been testified and admitted by 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 to that conclusion?"

"Diphtheria causes death in several ways. Commonly the false membrane grows more rapidly than it can be removed, and the patient is practically strangled, or asphyxiated by it. It is in such a condition that tracheotomy is essayed, affording a breathing aperture below the locality of the disease. It is not uncommon for the patient apparently to combat the more frightful form of the disease, so that the false membrane is thrown off, and the parts left apparently in a fair state of health, so far as freedom to breathe and swallow is concerned. But then it may happen, especially in anæmic individuals, that this fight against the disease has left the patient in a state of enervation and lowered vitality, which borders on collapse. The extreme crisis is passed, but the danger lurks insidiously near. At any moment a change for the worse might occur, whilst recovery would be very slow. When death comes in this form, it is a gradual lessening of vital action throughout the body; a slow slipping away of life, as it were."

"Exactly! So that such a condition might readily be mistaken for a gradually 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 a sort of coma, which after all is common in many diseases."

"So that you would say that this coma, did not specifically indicate morphine 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 of death."

"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 a slight 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 a symptomatic effect of morphine death, would be pupils contracted and then dilating slowly as death approached. Now did you observe the contracted pupils?"

"No, sir."

"What effect does atropine have upon the pupils?"

"It dilates them."

"Dr. Meredith admitted that he injected atropine. In your opinion would that account for the dilatation of the pupils just previous to death, which you say that you yourself observed?"

"I should say yes."

"I will only detain you another minute, Doctor." Mr. Bliss then asked for 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 may have left it there by accident."

Mr. Bliss then yielded the witness, and Mr. Munson began a re-direct examination, which was practically a cross-examination, because this witness, though technically for the prosecution, was in effect a witness for the defence. The lawyer tried with all his cunning to confuse the old doctor, but the longer he continued the more he damaged his own cause. About the only thing which he brought out that might 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 not think that such another is yet on the market, though the house that made 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 you did 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 laryngoscope and other instruments to treat the throat."

"I see that this case not only contains the syringe, but also some small 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, of one 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 the nurse saw Dr. Medjora using, and deducting the four pellets which she found in the bed, how large a dose must have been administered at that time?"

"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 from the phial were administered to the patient. Now there is no evidence whatever as to that?"

"Whether the missing tablets were administered or not is a question for the jury to decide. You may state, Doctor, how much morphine was contained in the missing tablets."

"As there are forty-eight here, thirty-two are missing. Deducting four, that leaves us twenty-eight, or a total of three and a half grains."

This was a corroboration of the estimate made by the experts, that three grains must have been the minimum dose administered, and if the jury should believe that these missing tablets had been given by the prisoner, it was evident that they must convict him. So that after all the prosecution did gain something out of the witness who had been forced upon them. They then rested their case, and court adjourned, leaving the opening for the defence until the following day.