Witness. "No, it had not faded. I merely wanted to refresh my recollection."
Counsel. "Was it not rather that you had made up the story in your affidavit, and you wanted the affidavit to refresh your recollection as to the story you had manufactured?"
Witness. "No, sir; that is not true."
The purpose of these questions, and the use made of the answers upon the argument, is shown by the following extract from the summing up:—
"My point is this, gentlemen of the jury, and it is an unanswerable one in my judgment, Mr. District Attorney: If Minnock, fresh from the asylum, forgot this sheet incident when he went to sell his first newspaper article to the World; if he also forgot it when he went to the coroner two days afterward to make his second affidavit; if he still forgot it two weeks later when, at the inquest, he testified for two hours, without mentioning it, and only first recollected it when he was recalled two days afterward, then there is but one inference to be drawn, and that is, that he never saw it, because he could not forget it if he had ever seen it! And the important feature is this: he was a newspaper reporter; he was there, as the district attorney says, 'to observe what was going on.' He says that he stood by in that part of the room, pretending to take away the dishes in order to see what was going on. He was sane, the only sane man there. Now if he did not see it, it is because it did not take place, and if it did not take place, the insane men called here as witnesses could not have seen it. Do you see the point? Can you answer it? Let me put it again. It is not in mortal mind to believe that this man could have seen such a transaction as he describes and ever have forgotten it. Forget it when he writes his article the night he leaves the asylum and sells it to the morning World! Forget it two days afterward when he makes a second important affidavit! He makes still another statement, and does not mention it, and even testifies at the coroner's inquest two weeks later, and leaves it out. Can the human mind draw any other inference from these facts than that he never saw it—because he could not have forgotten it if he had ever seen it? If he never saw it, it did not take place. He was on the spot, sane, and watching everything that went on, for the very purpose of reporting it. Now if this sheet incident did not take place, the insane men could not have seen it. This disposes not only of Minnock, but of all the testimony in the People's case. In order to say by your verdict that that sheet incident took place, you have got to find something that is contrary to all human experience; that is, that this man, Minnock, having seen the horrible strangling with the sheet, as he described, could possibly have immediately forgotten it."
The contents of the two affidavits made to the World and the coroner were next taken up, and the witness was first asked what the occurrence really was as he now remembered it. After his answers, his attention was called to what he said in his affidavits, and upon the differences being made apparent, he was asked whether what he then swore to, or what he now swore to, was the actual fact; and if he was now testifying from what he remembered to have seen, or if he was trying to remember the facts as he made them up in the affidavit.
Counsel. "What was the condition of the Frenchman at supper time? Was he as gay and chipper as when you said that he had warmed up after he had been walking around awhile?"
Witness. "Yes, sir."
Counsel. "But in your affidavit you state that he seemed to be very feeble at supper. Is that true?"