There is another question. Why did we fail to produce our books and papers? I will tell you. The notice to produce them was given to us on the 13th day of February. We had noticed curious motions. Two days afterwards, Mr. Rerdell went on the stand. What did they want the books and papers for? For Mr. Rerdell to look at. Why did he want to look at the books and papers? To stake out his testimony. He hated to depend upon his memory. We took the responsibility of letting the witness swear to the contents of the books and papers, and let them call that secondary evidence. We took that responsibility rather than to furnish the books and papers to be looked at by that man in order that he might make no mistakes in his testimony. What happened afterwards justified our course. If we had shown to him the books and papers, and checks, and stubs, do you think he would have made any mistake about that seven thousand five hundred dollar check? Would he have said that he went with Dorsey, and that Dorsey drew the money, and that he looked over his shoulder, and that then he and Dorsey walked down to the Post-Office Department, if he had known that that check was drawn to his order? If he had known before he swore, that he indorsed that check, he would have said he went down and got the money himself; he would not have said that Dorsey did. He would have made no mistakes there. He would not have been driven into the corner of saying "stub" or "stubs," "checkbook" or "check-books," "amount" or "amounts." No, sir. And that one thing justified absolutely the wisdom of our course.
Then the Court decided that, having failed to produce our books on notice and allowed the other side to introduce secondary evidence of their contents, we would not be allowed then to produce them. I insisted that we had the right then to produce them, and the Court decided that we had not. We took the responsibility of refusing, and we took that responsibility because we made up our minds that we would not allow that man to look over the books, checks, and stubs for the purpose of manufacturing his testimony.
The Court. Where did you offer to produce the books?
Mr. Merrick. Where did you offer the production of the books? That is just what I was about to ask.
Mr. Carpenter. The Court said we could not.
Mr. Merrick. Where did you make the offer?
The Court. I want to know.
Mr. Carpenter. Mr. Ingersoll did not say he made the offer.
Mr. Merrick. I think he did.
The Court. I think he did.