A Modern Wizard. Ottolengui Rodrigues
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."
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