The Art of Cross-Examination Part 22

_Counsel._ "Do you want this jury to believe that, having witnessed this horrible scene which you have described, you immediately forgot it, and on two different occasions when you were narrating under oath what took place in that hospital, you forgot to mention it?"

_Witness._ "It escaped my memory."

_Counsel._ "You have testified as a witness before in this case, have you not?"

_Witness._ "Yes, sir."

_Counsel._ "Before the coroner?"

_Witness._ "Yes, sir."

_Counsel._ "But this sheet incident escaped your memory then?"

_Witness._ "It did not."

_Counsel_ (taking in his hands the stenographer's minutes of the coroner's inquest). "Do you not recollect that you testified for two hours before the coroner without mentioning the sheet incident, and were then excused and were absent from the court for several days before you returned and gave the details of the sheet incident?"

_Witness._ "Yes, sir; that is correct."

_Counsel._ "Why did you not give an account of the sheet incident on the first day of your testimony?"

_Witness._ "Well, it escaped my memory; I forgot it."

_Counsel._ "Do you recollect, before beginning your testimony before the coroner, you asked to look at the affidavit that you had made for the _World_?"

_Witness._ "Yes, I had been sick, and I wanted to refresh my memory."

_Counsel._ "Do you mean that this scene that you have described so glibly to-day had faded out of your mind then, and you wanted your affidavit to refresh your recollection?"

_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?"

_Witness._ "Well, yes; he did seem to be feeble."

_Counsel._ "But you said a moment ago that he warmed up and was all right at supper time."

_Witness._ "Oh, you just led me into that."

_Counsel._ "Well, I won't lead you into anything more. Tell us how he walked to the table."

_Witness._ "Well, slowly."

_Counsel._ "Do you remember what you said in the affidavit?"

_Witness._ "I certainly do."

_Counsel._ "What did you say?"

_Witness._ "I said he walked in a feeble condition."

_Counsel._ "Are you sure that you said anything in the affidavit about how he walked at all?"

_Witness._ "I am not sure."

_Counsel._ "The sheet incident, which you have described so graphically, occurred at what hour on Wednesday afternoon?"

_Witness._ "About six o'clock."

_Counsel._ "Previous to that time, during the afternoon, had there been any violence shown toward him?"

_Witness._ "Yes; he was shoved down several times by the nurses."

_Counsel._ "You mean they let him fall?"

_Witness._ "Yes, they thought it a very funny thing to let him totter backward, and to fall down. They then picked him up. His knees seemed to be kind of muscle-bound, and he tottered back and fell, and they laughed. This was somewhere around three o'clock in the afternoon."

_Counsel._ "How many times, Mr. Minnock, would you swear that you saw him fall over backward, and after being picked up by the nurse, let fall again?"

_Witness._ "Four or five times during the afternoon."

_Counsel._ "And would he always fall backward?"

_Witness._ "Yes, sir; he repeated the operation of tottering backward.

He would totter about five feet, and would lose his balance and would fall over backward."

The witness was led on to describe in detail this process of holding up the patient, and allowing him to fall backward, and then picking him up again, in order to make the contrast more apparent with what he had said on previous occasions and had evidently forgotten.

_Counsel._ "I now read to you from the stenographer's minutes what you said on this subject in your sworn testimony given at the coroner's inquest. You were asked, 'Was there any violence inflicted on Wednesday before dinner time?' And you answered, 'I didn't see any.' You were then asked if, up to dinner time at six o'clock on Wednesday night, there had been any violence; and you answered: 'No, sir; no violence since Tuesday night. There was nothing happened until Wednesday at supper time, somewhere about six o'clock.' Now what have you to say as to these different statements, both given under oath, one given at the coroner's inquest, and the other given here to-day?"

_Witness._ "Well, what I said about violence may have been omitted by the coroner's stenographer."

_Counsel._ "But did you swear to the answers that I have just read to you before the coroner?"

_Witness._ "I may have, and I may not have. I don't know."