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The Art of Cross-Examination

by Francis H. Wellman

CHAPTER XII
THE CROSS-EXAMINATION OF MISS MARTINEZ BY HON. JOSEPH H.  CHOATE IN THE CELEBRATED BREACH OF PROMISE CASE, MARTINEZ v. DEL VALLE

The modern method of studying any subject, or acquiring any art, is the inductive method.  This is illustrated in our law schools, where to a large extent actual cases are studied in order to get at the principles of law instead of acquiring those principles solely through the a priori method of the study of text-books. 

As already indicated, this method is also the only way to become a master of the art of cross-examination.  In addition to actual personal experience, however, it is important to study the methods of great cross-examiners, or those whose extended experience makes them safe guides to follow. 

Hence, the writer believes, it would be decidedly helpful to the students of the art of cross-examination to have placed before them in a convenient and somewhat condensed form, some good illustrations of the methods of well-known cross-examiners, as exhibited in actual practice, in the cross-examination of important witnesses in famous trials. 

For these reasons, and the further one that such examples are interesting as a study of human nature, I have in the following pages introduced the cross-examination of some important witnesses in several remarkable trials. 

Often when it is necessary to demonstrate the fact that a witness has given colored or false testimony, it is not some effective point that is the true test of a great cross-examination, but the general effect which is produced upon a jury by a long review of all the witness has said, bringing out inconsistencies, contradictions, and improbable situations which result finally in the breakdown of the witness’s story.  The brief extracts from the cross-examinations that have already been given will not fully illustrate this branch of the cross-examiner’s work. 

Really great triumphs in the art of cross-examination are but seldom achieved.  They occur far less frequently than great speeches.  All of us who attend the courts are now and then delighted with a burst of eloquence, but we may haunt them for years and never hear anything even faintly approaching a great cross-examination; yet few pleasures exceed that afforded by its successful application in the detection of fraud or the vindication of innocence. 

Some of the greatest cross-examinations in the history of the courts become almost unintelligible in print.  The reader nowadays must fancy in vain such triumphs as those attained by Lord Brougham in his cross-examination of the Italian witness Majocchi, in the trial of Queen Caroline.  To a long succession of questions respecting matters of which he quite obviously had a lively recollection, the only answer to be obtained on cross-examination from this witness was Non mi recordo (I do not remember). 

Seventy years ago this cross-examination was reputed “the greatest masterpiece of forensic skill in the history of the world,” and Non mi recordo became household words in England for denoting mendacity.  Almost equally famous was the cross-examination of Louise Demont by Williams, in the same trial.  And yet nothing could be less interesting or less instructive, perhaps, than the perusal in print of these two examinations, robbed as they now are of all the stirring interest they possessed at the time when England’s queen was on trial charged with adulterous relations with her Italian courier de place. 

Much that goes to make up an oration dies with its author and the event that called it into being.  Likewise the manner of the cross-examiner, the attitude of the witness, and the dramatic quality of the scene, cannot be reproduced in print. 

In order to appreciate thoroughly the examples of successful cross-examinations which here follow, the reader must give full vent to his imagination.  He must try to picture to himself the crowded court room, the excitement, the hush, the expectancy, the eager faces, the silence and dignity of the court, if he wishes to realize even faintly the real spirit of the occasion. 

MARTINEZ v.  DEL VALLE

One of the most brilliant trials in the annals of the New York courts was the celebrated action for breach of promise of marriage brought by Miss Eugenie Martinez against Juan del Valle.  The cross-examination of the plaintiff in this case was conducted by the Hon.  Joseph H.  Choate, and is considered by lawyers who heard it as perhaps the most brilliant piece of work of the kind Mr. Choate ever did. [1]

The case was called for trial in the Supreme Court, New York County, before Mr. Justice Donohue, on the fourteenth of January, 1875.  The plaintiff was represented by Mr. William A.  Beach, and Mr. Choate appeared for the defendant, Mr. del Valle.  The trial lasted for a week and was the occasion of great excitement among the habitues of the court-house.  To quote from the daily press, “All those who cannot find seats within the court room, remain standing throughout the entire day in the halls, with the faint hope of catching a sight of the famous plaintiff, whose beauty and grace has attracted admirers by the score, from every stage of society, who haunt the place regardless of inconvenience or decency.” 

There is no more popular occasion in a court room than the trial of a breach of promise case, and none more interesting to a jury.  Such cases always afford the greatest satisfaction to an eager public who come to witness the conflict between the lawyers and to listen to the cross-examinations and speeches.  With Mr. Beach, fresh from his nine days’ oration in the Henry Ward Beecher case, pitted against Mr. Choate, who told the jury that this was his first venture in this region of the law; and with a really beautiful Spanish woman just twenty-one years of age, “with raven black hair and melting eyes shadowed by long, graceful lashes, the complexion of a peach, and a form ravishing to contemplate,” suing a rich middle-aged Cuban banker for $50,000 damages for seduction and breach of promise of marriage, the intensity of the public interest on this particular occasion can be readily imagined, and served as a stimulus to both counsel to put forth their grandest efforts. 

The plaintiff and defendant were strangers until the day when she had slipped on the ice, and had fallen in front of the Gilsey House on the corner of 2Qth Street and Broadway.  Mr. del Valle had rushed to her assistance, had lifted her to her feet, conducted her to her home, received the permission of her mother to become her friend, and six months later had become the defendant in this notorious suit which he had tried to avoid by offering the plaintiff $20,000 not to bring it into court. 

Mr. Choate spoke of it to the jury as an excellent illustration of the folly, in these modern times, of attempting to raise a fallen woman! To quote his exact words:  ---

“Now I want to speak a word of warning to all Good Samaritans, if there are any in the jury box, against this practice of going to the rescue of fallen women on the sidewalks.  I do not think my client will ever do it again.  I do not think anybody connected with the administration of justice in this case will ever again go to the relief of one of our fair fallen sisters under such circumstances.  I know the parable of the Good Samaritan is held up as an example for Christian conduct and action to all good people, but, gentlemen, it does not apply to this case, because it was ‘a certain man ‘who went down to Jericho and fell among thieves, and not a woman, and the Good Samaritan himself was of the same sex, and there is not a word of injunction upon any of us to go to the rescue of a person of the other sex if she slips upon the ice.  Why, gentlemen, that is an historical trick of the ‘nymphs of the pave.’ Hundreds of times has it been practised upon the verdant and inexperienced stranger in our great city.” 

Mr. Choate felt that he had a good case, a perfectly clear case, but that there was one obstacle in it which he could not overcome.  There was a beautiful woman in the case against him, “a combination of beauty and eloquence which would outweigh any facts that might be brought before a jury.” 

Very early in the trial Mr. Choate warned the jury against the seductive eloquence and power of the learned counsel whom the plaintiff had enlisted in her behalf, “one of the veterans of our Bar, of whose talents and achievements the whole profession is proud.  In that branch of jurisprudence which I may call sexual litigation he is without a peer or a rival, from his long experience! You can no more help being swayed by his eloquence than could the rocks and the trees help following the lyre of Orpheus!”

When it came Mr. Beach’s turn to address the jury he replied to this sally of Choate’s: ---

“During the progress of this trial, counsel has seen fit to make some personal allusions to myself.  (Here Mr. Choate faced around.) It seemed to me not conceived in an entirely courteous spirit.  He belabored me with compliments so extravagant and fulsome that they assumed the character of irony and satire.  It is a common trick of the forum to excite expectations which the speaker knows will not be gratified, and blunt even the force of plain and simple arguments which may be addressed to the jury.  The courtesy of the learned counsel requires a fitting acknowledgment, and yet I confess my utter inability to do it.  I lack the language to delineate in proper colors the brilliant faculties of the learned gentleman, and I am perforce driven to borrow from others the words which describe him properly.  I know no other source more likely to do the gentleman justice than the learned and accomplished friends among us taking notes.  I noticed a description of my learned friend so appropriate and just that I adopt the language of it.  (Here counsel read.) ‘The eloquent and witty Choate sat with his classic head erect, while over his Cupid features his blue eyes shed a mild light.’ (Great laughter.) Allow me to tender it to you, sir.  (Mr. Choate smilingly accepted the newspaper clipping.)

“And how completely does my learned friend fulfil this description! How like a god he is! What beauty! The gloss of fashion and the mould of form!  [Laughter.]  The observed of all observers! Why, how can I undertake to contend with such a heaven-descended god!  [Laughter.]   He chooses to attribute to me something of Orpheonic enchantments, but should I attempt to imitate the fabled musician, sure I am I could not touch his heart of stone! But he strikes the Orpheonic lyre which he brings with him from the celestial habitation.  How can you resist him?  What hope have I with like weapons or efforts?  If the case of this poor and crushed girl depends on any contest of wit or words between the counsel and myself, how hopeless it is; and yet I have some homely words, some practical facts and considerations to address to your understandings, which I hope and believe will reach your conviction.” 

Miss Martinez took the witness-stand in her own behalf and told her story:  ---

“I became acquainted with Juan del Valle under the following circumstances: On or about the fourteenth of January, 1875, when passing through 2Qth Street, near Broadway, I slipped on a piece of ice and fell on the sidewalk, badly spraining my ankle.  Recovering from my bewilderment, I found myself being raised by a gentleman, who called a carriage and took me home.  He assisted me into the house, and asked whether he might call again and see how I was getting on.  I asked my mother, and she gave him permission.  He called the next day, and passed half or three quarters of an hour with me, and told me he was a gentleman of character and position, a widower, and lived at 55 West 28th Street, that he was very much pleased with and impressed by me, and that he desired to become better acquainted.  He then asked whether he might call in the evening and take me to the theatre.  I told him that my stepfather was very particular with me, and would not permit gentlemen to take me out in the evening, but that, as mother had given her consent, I had no objections to his calling in the afternoon.  He called three or four times a week, sometimes with his two younger children, and sometimes taking me to drive in the Park.”

About three weeks after the beginning of our acquaintance he told me he had become very fond of me, and would like to marry me; that his wife had been dead for three years, and that he was alone in the world with four children who had no mother to care for them, and that if I could sacrifice my young life for an old man like him, he would marry me and give me a pleasant home; that he was a gentleman of wealth, able to provide for my every want, and that if I would accept him I should no longer be compelled, either to endure the strict discipline of my stepfather, or to struggle for simple existence by teaching.  He gave me the names of several residents of New York, some of whom my stepfather knew personally, of whom I might make inquiries as to his character and position. 

“I asked Mr. del Valle whether he was in earnest, saying that I was comparatively poor, and since my stepfather’s embarrassment in business had not mingled in society, and wondered that he should select me when there were so many other ladies who would seem more eligible to a gentleman of his wealth and position.  He replied that he was in earnest and that he had once married for wealth, but should not do so again.  He told me to talk with mother and give him an answer as soon as possible.  He said that he loved me from the first moment he saw me, and could not do without me.  My mother gave consent and I promised to marry him. 

Mr. del Valle then took me to Delmonico’s and after we had dined we went to a jewellery store in 6th Avenue, and he selected an amethyst ring for an engagement ring, as he said.  The ring was too large and was left to be made smaller.  Two or three days afterward he called on me at my house, placed the ring on my finger, and said, ‘Keep that ring on that finger until I replace it with another.’

“At the third interview after the presentation of the ring, Mr. del Valle said that owing to some difficulties in his domestic affairs, which he called a ‘compromise,’ he did not think it best to be married publicly, as he feared that the publication of his marriage might cause trouble.  So he urged me to marry him immediately and privately.  I was greatly surprised, and said: ‘If there is any trouble, why marry at all?  I hope there is nothing wrong.  What is the nature of the “compromise?”  and he replied: ‘Oh, there is nothing wrong, but I have a “compromise “in Cuba, and it is not convenient for you or me to marry publicly, as the person concerned might make you trouble.’

“I told Mr. del Valle that I would not marry him privately, and that I would release him from his engagement.  A day or two afterward he took me to a restaurant to dine with him, and I then gave him a letter in which I enclosed the engagement ring, and told him I would not marry him privately.  This letter I sealed, asking him not to open it until after we had separated. 

Five or six days afterward he called again, and seemed ill.  He said that my letter had made him sick, and he asked, ‘What could induce you to write such a letter, Eugenie?  You could not have loved me if you thought so much about the nonsense I told you about a compromise.  The compromise is all arranged, and I want you to take back the ring, and say when and where we shall be married.’ I said I still loved him, and if the ‘compromise’ had been arranged, I would accept the ring, but would not marry him secretly.  He then put the ring on my finger, and said, ‘Now I want you to tell when and where we shall get married.’ It was finally agreed that we should be married in the fall. 

“From the date of this conversation, which w r as early in March, 1875, until the twenty-eighth of April, 1875, Mr. del Valle called almost daily and took me to theatres and other places, and was received at home by all my family except my stepfather as my accepted suitor.  He frequently complained that he could not call in the evening, and wished me to live in his house in Twenty-eighth Street, and take charge of his children.  I refused, and he then proposed to take a place in the country, where the children could have plenty of air and exercise, if I would go and take charge of them, and as we were to be married so soon, he wished me to get well acquainted with his children, adding that if I really loved him, I need have no doubt about his honorable intentions. 

“I laughed at the idea, but finally consented to leave my home and go into the country with his family.  As I was losing all my pupils he insisted upon giving me $100 a month.  He persuaded me there was no impropriety in his suggestion, as we were to be married, and that I should never return home excepting as his wife.  I had told him that my stepfather had threatened to shoot me and any man whom I might marry.  He persuaded me to leave my home at once, and as he had not yet secured a country house for the summer, I was to go to the Hotel Royal for a few days and live under an assumed name, which I did.  He kept me at the hotel for five weeks, persuading me not to return home, and by the first of June he had secured a country place at Poughkeepsie, and I went there to live with himself and his four children. 

“His conduct toward me up to this time had always been everything that could be desired, --- always kind and considerate and anxious for my every comfort, --- neither by word or act did he indicate to me that his intention was any other than to make me his wife.  He had engaged a very fine mansion at Poughkeepsie, overlooking the Hudson, fine grounds, and everything one could desire in a country house.  Mr. del Valle gave me the keys to the house and told me the entire establishment was under my charge. 

“Six days after I arrived at Poughkeepsie he forced his way into my bedroom.  I insisted upon an immediate marriage as my right.  He told me he had not been able to arrange the compromise in Cuba, and begged me to be reasonable and he would be my life friend; that I could not return home under the circumstances, and that anything I might at any time want he would always do for me.  He tried to persuade me that I would best accept the situation as it was, and that it was a very common occurrence.  I had no home to go to and did not dare to record the circumstance to my mother; I would have died first.  Three months later, or at the end of the summer, his manner entirely changed toward me.  I repeatedly asked him for some explanation.  He persuaded me that his coldness was assumed to prevent the servants from talking, that he was going to Cuba to try to fix up the compromise, and prevailed upon me to go back to my home and parents and wait.  This I did on the sixth of September.  After I returned to New York I wrote to him but received no reply, and have never seen him since.” 

Nothing could be more witty or brilliant than Mr. Choate’s own description to the jury of “the appearance of this fair and beautiful woman while she was giving her evidence on the witness-stand.”  It was a part of the exhibition, he said, which no reporter had been adequate to describe. 

“Gentlemen, have you seen since the opening of this trial one blush, one symptom of distress upon her sharp and intelligent features?  Not one.  There was in a critical point of her examination a breaking down or a breaking up, as I should prefer to call it.  Her handkerchief was applied to her eyes; there was a loud cry for ‘Water, water,’ from my learned friend, echoed by his worthy and amiable junior, as though the very Bench itself were about to be wrapped in flames!  [Laughter.]  But when the crisis was over, then it appeared that there had only been a momentary eclipse of the handkerchief, that she had been shedding dry tears all the while!  Not a muscle was disturbed; she advanced in the progress of her story with sparkling eyes and radiant smile and tripping tongue, and thus continued to the end of the case!

“The great masters of English fiction have loved nothing better than to depict the appearance in court of these wounded and bleeding victims of seduction when they come to be arrayed before the gaze of the world. 

“You cannot have forgotten how Walter Scott and George Eliot have portrayed them sitting through the ordeal of their trials, the very pictures of crushed and bleeding innocence, withering under the blight that had fallen upon them from Heaven, or risen upon them from Hell.  Never able so much as to raise their eyes to the radiant dignity of the Bench [Laughter.] , seeming to bear mere existence as a burden and a sorrow.  But, gentlemen, our future novelist, if he will listen and learn from what has been exhibited here, will have a wholly different picture to paint He will not omit the bright and fascinating smile, the sparkling eye, the undisturbed composure from the beginning to the end of the terrible ordeal.  With what zest and relish and keen enjoyment she detailed her story! What must be the condition of mind and heart of the woman who can detail such stories to such an audience as was gathered together here!”

Speaking of the whole case, Mr. Choate said: “Never did a privateer upon the Spanish main give chase to and board a homeward-bound Indiaman with more avidity and vigor than this family proposed to board this rich Cuban and make a capture of him.  It was a ‘big bonanza ‘thrown to them in their distress.” 

It will be seen that the one great question of fact to be disposed of in the case was whether there was a breach of promise of marriage on the part of the defendant to the plaintiff; that being decided in the negative, everything else would disappear from the case.  All other matters were simply incidental to that. 

The conflicting evidence could not be reconciled.  One side was wholly true, the other side wholly false, and the jury were to be called upon to say where the truth was.  Was there a promise of marriage three weeks after the plaintiff and defendant met on the corner of 20th Street and Broadway? 

The plaintiff had stated in substance that after three weeks the defendant proposed marriage and she accepted him; that he took her in a carriage to Delmonico’s to lunch and took her to a jeweller’s store in Sixth Avenue and there purchased a ring as a binding token of the promise of marriage.  That was her case.  If the jury believed that, she would succeed.  If they did not, her case falls.  That ring was a clincher, according to her statement of the story, given on the heels of the promise of marriage.  What else could it mean but to bind that bargain?  This was the way the case stood when Mr. Choate rose to cross-examine Miss Martinez. 

There could be no greater evidence of the success of the particular method of examination that Mr. Choate chose to adopt on this occasion than the comment in the New York Sun: “A vigorous cross-examination by Mr. Joseph Choate did not shake the plaintiff’s testimony.  Miss Martinez told her story over again, only more in detail!”  How poor a judge of the art of cross-examination this newspaper scribe proved himself to be! He had entirely failed to penetrate the subtlety of Mr. Choate’s methods or to realize that, in the light of the testimony that was to follow for the defence, Miss Martinez, during her ordeal, which she appeared to stand so well, had been wheedled into a complete annihilation of her case, unconsciously to herself and apparently to all who heard her. 

In sharp contrast to Mr. Choate’s style of cross-examination is that adopted by Sir Charles Russell in the cross-examination of the witness Pigott, which is given in the following chapter, and where the general verdict of the audience as Pigott left the witness-box was “smashed”; and yet, though the audience did not realize it, Miss Martinez left the witness-stand so effectually “smashed “that there never afterwards could be any doubt in Mr. Choate’s mind as to the final outcome of the case.  In his summing up Mr. Choate made this modest reference to his cross-examination: “I briefly ask your attention to her picture as painted by herself, to her evidence, and her letters, giving us her history and her career.”  And then he proceeded to tear her whole case to pieces, bit by bit, in consequence of the admissions she had unsuspectingly made during her cross-examination. 

“And now, gentlemen, with pain and sorrow I say it, has not this lady by her own showing, by her own written and spoken evidence and the corroborating testimony of her sister, established her character in such a way that it will live as long as the memory of this trial survives?”

In starting his cross-examination Mr. Choate proceeded to introduce the plaintiff to the jury by interrogating her with a series of short, simple questions, the answers to which elicited from the lady a detailed account of her life in New York since the year of her birth. 

She said she was twenty-one years old; was born in New York City; her parents were French; her own father was a wine merchant; he died when she was seven years old; two years later her mother married a Mr. Henriques, with whom she had lived as her stepfather for the fourteen years preceding the trial.  She had been educated in a boarding-school, and since graduation had been employing herself as a teacher of languages, etc., etc. 

Mr. Choate had in his possession a letter written by the plaintiff to Mr. del Valle during the first few weeks of their acquaintance.  In this letter Miss Martinez had complained of the wretchedness of her home life in consequence of the amorous advances made to her by her stepfather.  Mr. Choate was evidently of the opinion that this letter was a hoax and had been written by Miss Martinez for the sole purpose of eliciting Mr. del Valle’s sympathy, and inducing him to allow her to come and live in his family as the governess of his children with the idea that a proposal of marriage would naturally result from such propinquity.  Suspecting that the contents of this letter[2] were false, and judging from statements made in the plaintiff’s testimony-in-chief that she had either forgotten all about this letter or concluded that it had been destroyed, Mr. Choate set the first trap for the plaintiff in the following simple and extremely clever manner. 

Mr. Choate.  “By what name did you pass after you returned home from boarding-school and found your mother married to Mr. Henriques?” 

Miss Martinez.  “Eugenie Henriques, invariably.” 

Mr. Choate.  “And when did you first resume the name of Martinez?”

Miss Martinez.  “When I left the roof of Mr. Henriques.” 

Mr. Choate.  “Always until that time were you called by his name?”

Miss Martinez.  “Always.” 

Mr. Choate.  “Did your father exercise any very rigid discipline over yourself and your sister that you remember?”

Miss Martinez.  “He did.” 

Mr. Choate.  “When did that rigid discipline begin?”

Miss Martinez.  “It commenced when I first knew him.” 

Mr. Choate.  “And it was very rigid, wasn’t it?”

Miss Martinez.  “It was, very.” 

Mr. Choate.  “Both over yourself and over your younger sister?”

Miss Martinez.  “Yes.” 

Mr. Choate.  “Taking very strict observation and care, as to your morals and your manners?”

Miss Martinez.  “Exceedingly so.” 

Mr. Choate.  “How did this manifest itself?”

Miss Martinez.  “Well, in preventing my having any other associates.  He thought there was no one good enough to associate with us.” 

Mr. Choate.  “Then he was always very strict in keeping you in the path of duty, was he not?”

Miss Martinez.  “Most undeniably so.” 

Mr. Choate.  “Was this a united family of which you were a member?  Were they united in feeling?” 

Miss Martinez.  “Very much so indeed.  There are very few families that are more united than we were.” 

Mr. Choate.  “All fond of each other?”

Miss Martinez.  “Always.” 

One can readily picture to himself Mr. Choate and the fair plaintiff smiling upon each other as these friendly questions were put and answered.  And the plaintiff, entirely off her guard, is then asked, probably in a cooing tone of gentleness and courtesy that can be easily imagined by any one who has ever heard Mr. Choate in court, the important question:  ---

Mr. Choate.  “As to your stepfather, you were all fond of him and he of you?” 

Miss Martinez.  “Very fond of him indeed, and he very fond of us.” 

Mr. Choate.  “And except this matter of his rigid discipline, was he kind to you?”

Miss Martinez.  “Very.” 

Mr. Choate.  “And gentle?”

Miss Martinez.  “Very gentle and very kind.” 

Mr. Choate.  “Considerate?”

Miss Martinez.  “Very considerate always of our happiness, but he did not wish us to associate with the people by whom we were surrounded, as we were not in circumstances to live amongst our class.” 

Mr. Choate.  “When was it that he first introduced the subject of marriage, or forbidding you to marry, or thinking of marrying?”

Miss Martinez.  “Well, when I was about sixteen or seventeen.” 

Mr. Choate.  “And was it then that he said that if you married, he would shoot you and shoot any man that you married?”

Miss Martinez.  “He did.” 

Mr. Choate.  “That was the one exception to his ordinary gentleness and kindness, wasn’t it?” 

Miss Martinez.  “Yes.” 

Mr. Choate.  “And the only one?”

Miss Martinez.  “And the only one.” 

Mr. Choate.  “Your stepfather is no longer living, is he?”

Miss Martinez.  “He is not.  He died last October.” 

It will be observed that Mr. Choate did not confront the witness at this point with the letter that she had written, complaining of her father’s brutal advances to her, and of the necessity of her leaving her home in consequence.  Many cross-examiners would have produced the letter and would have confronted the witness on the spot with the contradiction it contained, instead of saving it for the summing up.  It is interesting to study the effect of such a procedure.  By a production of this letter, the witness would have been immediately discredited in the eyes of the jury; the full force of the contradictory letter would have been borne in upon the jury as perhaps it could not have been at any other time in the proceeding, and the Sun reporter could not have said the plaintiff had not been “shaken.”  On the other hand, it would have put the witness upon her guard at the very start of her cross-examination, and she would have avoided many of the pitfalls which she confidingly stepped into later in her testimony.  All through the examination Mr. Choate had frequent opportunities to put the witness on her guard, but at the same time off her balance.  It is a mooted question which method is the better one to employ.  It all depends upon the nature of the case on trial. 

Richard Harris, K.C., an English barrister who has written several clever books on advocacy, says: “From a careful observation, I have reluctantly come to the conclusion that in five cases out of six, I would back the advocate and not the case.”  This is especially true of a breach of promise case when the suit is for a breach of promise of marriage, but when owing to the unwise conduct of the defendant’s lawyer at the trial in unnecessarily attacking the woman plaintiff, the verdict of the jury in her favor is for slander.  It may have been some such consideration as this which determined Mr. Choate to save all his “points “for his summing up. 

It is perhaps the safer course of the two in cases of this kind, but I doubt very much if, in the great majority of cases, it is the wiser one; for it must be remembered that there are few lawyers at the Bar who can make such use of his “points” in his summing up as did Mr. Choate. 

Had Miss Martinez been confronted with her own letter in which she had written of her stepfather, “He loves me and has done everything in his power to rob me of what is dearer to me than my life, --- my honor....  Ever since I was a little child he has annoyed me with infamous propositions,” etc., it would be difficult to imagine any way in which she could reconcile her letter and her sworn testimony, and Mr. Choate would have had the upper hand of his witness from that time on. 

Furthermore, during the examination of a witness the jury invariably form their opinion of the witness’ integrity, and if that opinion is in favor of the witness it is often too late to try to shake it in the summing up.  It is usually, therefore, the safer course to expose the witness to the jury in his or her true colors during the examination, and, if possible, prejudice them against her at the outset.  In such cases, oftentimes, no summing up at all would be necessary, and the closing speech becomes a mere matter of form.  Many lawyers save their points in order to make a brilliant summing up, but then it is perhaps too late to change the jury’s estimate of the witnesses.  An opinion once formed by a juror is not easily changed by a speech, however eloquent.  This is the experience of every trial lawyer. 

As evidence of how completely this part of Mr. Choate’s case flattened out because it was left until the final argument, it is only necessary to call the reader’s attention to all that was said on the subject in the summing up, viz.: “Her letter was read to the jury, which she had delivered to the defendant on the fifteenth of March, revealing her stepfather’s barbarous treatment of her.  When I was cross-examining her, I did it with that letter in my hand, with a view to what was written in it; so I asked her about the relations existing between herself and her stepfather, and she said he was always kind and loving and considerate, tender and gentle.” 

Instead of nailing this point in the cross-examination, as Sir Charles Russell, for instance, would have done, Mr. Choate turns quietly to the next subject of his exanimation, which is one of vital importance to his client, and to the theory of his defence. 

Mr. Choate.  “Can you fix the date in January when you first saw the defendant, Mr. del Valle?”

Miss Martinez.  “It was on the fifteenth day of January, either the fourteenth or the fifteenth.  It was on a Thursday.  I had an appointment with my dentist.” 

Mr. Choate.  “Thursday appears by the calendar of that year to have been on the fourteenth of January.” 

Miss Martinez.  “That was the day.” 

The supreme importance of this inquiry lies in the fact that Mr. Choate was in possession of the account books of the jeweller from whom the alleged “engagement ring ‘had been purchased.  These records showed that the ring had been bought on the fifteenth day of January, or one day after the plaintiff and the defendant first met, and before there had been any opportunity for acquaintance or love making, or any suggestion or possibility of a proposition of marriage and presentation of an engagement ring, which, as the plaintiff said in her own story, had been given her with the express request that she should wear it until another ring should take its place. 

Mr. del Valle’s version of the story, which Mr. Choate was intending to develop later in the case, was that he had met the plaintiff, was pleased with her, had assisted her to her home, had met her again the following day, had suggested to her, as a little memento of their acquaintance and his coming to her assistance, that she would allow him to present her with a ring, and that after lunching together in a private room at Solari’s, they had gone to a jeweller’s and he had selected for her an amethyst ring in commemoration of the day of their meeting.  It was this ring which the plaintiff later tried to convert into an engagement ring, which she claimed was given her three or four weeks after she had first made the acquaintance of Mr. del Valle, and after he had repeatedly asked her hand in marriage. 

Mr. Choate.  “What time in the day was it that you first met Mr. del Valle on this Thursday, the fourteenth day of January?”

Miss Martinez.  “About half-past two o’clock in the afternoon.” 

Mr. Choate.  “Have you any means of fixing the hour of that day?”

Miss Martinez.  “Yes.  I had an appointment with my dentist at three o’clock.” 

Mr. Choate.  “Your appointment with the dentist had been previously made, and you were on your way there?”

Miss Martinez.  “I was on my way there.” 

Mr. Choate.  “It was at the corner of Broadway and 2Qth Street that you fell on the ice, was it not?”

Miss Martinez.  “It was.” 

Mr. Choate.  “You did not observe the defendant before you fell?”

Miss Martinez.  “I did not.” 

Mr. Choate.  “And you had never seen him before?  *

Miss Martinez.  “I had never seen him before.” 

Mr. Choate.  “Did this fall render you insensible?”

Miss Martinez.  “Very nearly so.  I fell on my side and was lying down on the ground when Mr. del Valle raised me up.  I remember there were some iron railings near there, and I was leaning against these railings while Mr. del Valle hailed a cab, assisted me into it, and took me home.  He told me in the cab that he had been following me all the way up Broadway.” 

Mr. Choate.  “Did he tell you for what object he followed you?”

Miss Martinez.  “He did not.  He merely told me that he was following me.” 

Mr. Choate.  “And you did not ask him for what purpose he followed you?”

Miss Martinez.  “I did not.” 

Mr. Choate.  “Did he drive you to your home?”

Miss Martinez.  “He did, and when we arrived he assisted me into the house.  I had sprained my ankle.  He explained my accident to my mother, and that he had brought me home.  My mother thanked him and he asked if he might call again and see how I was getting along with my injury.” 

The plaintiff had explained that it was the serious nature of her injury which had occasioned her allowing a stranger to get her a cab and take her home.  Whereas the clerks in the jeweller’s store where the ring was bought the day following the accident, remembered distinctly seeing the plaintiff and the defendant together in the jewellery store for over half an hour while they were selecting the ring. 

In order to involve the plaintiff in further difficulties and contradictions, Mr. Choate continues in the same vein: ---

Mr. Choate.  “You were somewhat seriously disabled by your accident, were you not?”

Miss Martinez.  “I was.” 

Mr. Choate.  “For how long?”

Miss Martinez.  “Well, for two or three days.” 

Mr. Choate.  “A sprained ankle?”

Miss Martinez.  “My ankle hurt me very much.  I had it bandaged with cold water and lay on the bed for two days.  The third day I was able to limp around the room only a little, and the fourth day I could walk around.” 

Mr. Choate.  “How long was it before you got entirely over it so as to be able to go out of doors?”

Miss Martinez.  “Well, I went out the fifth day.”

Mr. Choate.  “And not before?”

Miss Martinez.  “And not before.” 

Mr. Choate.  “So that because of the injuries that you sustained, you were confined to the house for five days?”

Miss Martinez.  “I was.” 

Mr. Choate.  “And the first day, or January 16 (this was the day she had bought the ring), you were confined to your room and lying upon the bed?”

Miss Martinez.  “Yes, sir.  I reclined upon my bed.  I was not confined in bed as sick.” 

Mr. Choate.  “When was the first time that you were with Mr. del Valle at any time except at your father’s or your mother’s house?”

Miss Martinez.  “Do you mean the first time that I went out with him?”

Mr. Choate.  “Yes.” 

Miss Martinez.  “It was during the week following that in which I met him.  I met him on Thursday, the fourteenth, and went out with him sometime during the following week.” 

Mr. Choate.  “What was the place?”

Miss Martinez.  “We went to Delmonico’s to dine.” 

*  *  *  *  *  *  *  *  *  *  *  *

Mr. Choate.  “Was the ring the only present he gave you, or the first present?”

Miss Martinez.  “Oh, no, not by any means.” 

Mr. Choate.  “When did you begin to accept presents from him?”

Miss Martinez.  “The first day I went out with him, when we went to Delmonico’s, I accepted books from him.” 

Mr. Choate.  “What was the book that he then presented to you?”

Miss Martinez.  “Oh, well, I forget the title of it.  I think it was ‘Les Misérables’ by Victor Hugo.” 

Mr. Choate.  “And from that time he continued, when you went out with him, as a general thing, giving you something?”

Miss Martinez.  “Giving me books and buying me candies.  After we were through dining, he would stop at a confectioner’s and buy me something.” 

Mr. Choate.  “Down to the first time of the first talk of marriage, which you say was about three weeks after you met, how many times did you go with him to Delmonico’s, or other restaurants?”

Miss Martinez.  “Well, on an average of about two or three times a week.” 

Mr. Choate.  “Where else did you go besides Delmonico’s?”

Miss Martinez.  “The first time I went to any place with him besides Delmonico’s was at the time of the engagement, when he gave me the ring, when he bought the ring for me.” 

Mr. Choate.  “Where did you go then?”

Miss Martinez.  “We went in University Place somewhere.  I do not exactly know what street.” 

Mr. Choate.  “What side of University Place was it?” 

Miss Martinez.  “On the opposite side from Christern’s book store.” 

Mr. Choate (with a smile).  “Was it a place called Solari’s?”

Miss Martinez (hesitating).  “I think it was.” 

Mr. Choate.  “How many times did you go there with him before he gave you the ring?”

Miss Martinez.  “I never went there before he gave me the ring.  That was the first time I ever went to this place.” 

Mr. Choate.  “How came you way down there in University Place if you live up in 56th Street?  Did you make an appointment to be there?”

Miss Martinez.  “He came up to the house for me.” 

Mr. Choate.  “Came up and took you down there?”

Miss Martinez.  “Yes.  Didn’t he come up to inquire if I had accepted him as a husband, and ask me if I had consulted with my mother, and ask me what answer I had for him, and had I not told him that I would marry him?  It was then that he took me to this restaurant in a carriage, and after that he bought the ring for me.” 

Mr. Choate.  “The same day?”

Miss Martinez.  “The very same day.” 

Mr. Choate.  “Some considerable number of weeks, you say, intervened between your first acquaintance and this dinner at Solari’s, this engagement and the giving of the ring?”

Miss Martinez.  “About three weeks as nearly as I can fix the time.” 

Mr. Choate.  “Where was this jewellery store where the ring was bought?”

Miss Martinez.  “It was on Sixth Avenue.  I cannot say near what street it was.  I felt cold and tired that day.  We walked from Solari’s and it seemed to me as though the walk was rather long.” 

Mr. Choate.  “You remember the name of the store?” 

Miss Martinez.  “I do not.” 

Mr. Choate.  “Should you know the name if I told you?”

Miss Martinez.  “No, I never knew the name.” 

This jeweller took the witness-stand for the defence, and testified that Miss Martinez was present on the fifteenth of January, when the ring was bought, according to the entry made in his books, and that in consequence of the ring being too large she had ordered it made smaller, and had returned three days later herself alone, had taken the ring from his hand, and had given him a letter addressed to Mr. del Valle, asking him to deliver it when Mr. del Valle should call to pay for the ring, “although,” as Mr. Choate sarcastically put it, “it had been in her fond memory as a cherished remembrance that Mr. del Valle had put it on her finger and told her to keep it there until he replaced it with another.  Who does not see,” said Mr. Choate, in his summing up, “that the disappearance of the ring from the case as a gift upon a promise of marriage three weeks after the first acquaintance carries down with it all this story of the return of the ring to the defendant, and the defendant’s re-return of it to the plaintiff?’

Mr. Choate.  “Did you ever go to this store but the one time?”

Miss Martinez.  “Never went there but the one time.” 

Mr. Choate.  “And you are sure of that?” 

Miss Martinez.  “I am very sure of that.” 

Mr. Choate.  “The only time you were there was with Mr. del Valle?”

Miss Martinez.  “That was the only time I have ever been in that store in my life.” 

Mr. Choate.  “You say you looked at a solitaire diamond ring?”

Miss Martinez.  “Yes, but Mr. del Valle told me that he preferred an amethyst, and I took the amethyst.” 

Mr. Choate.  “There was a considerable difference in the cost, wasn’t there, between them?”

Miss Martinez.  “There was.” 

Mr. Choate.  “Do you know the cost of the amethyst ring?”

Miss Martinez.  “I think it was forty-five dollars.” 

Mr. Choate.  “The cost of a solitaire diamond ring might be many hundreds of dollars?”

Miss Martinez.  “One hundred and five dollars, one hundred and ten dollars, one hundred and fifteen dollars, I do not know.” 

Mr. Choate.  “Did you look at any other jewellery?”

Miss Martinez.  “Mr. del Valle asked me if I wished anything else, but I did not.” 

Mr. Choate here deviated from his former plan of not confronting the witness with the evidence he was intending to contradict her with, and having first shown the witness the letter addressed to Mr. del Valle which she had left at the jeweller’s on her second visit there, the handwriting of which the witness denied, Mr. Choate followed with this question: [3]

Mr. Choate.  “Now let me refresh your recollection a little, Miss Martinez.  Didn’t this visit to the jeweller’s take place on the fifteenth of January, the day after you made the acquaintance of Mr. del Valle?”

Miss Martinez.  “Oh, no, not by any means, sir.” 

Mr. Choate.  “Sure of that?”

Miss Martinez.  “I am very sure of it, for I was confined to my room the day after I first made the acquaintance of Mr. del Valle.” 

Mr. Choate.  “Then you never went to that jeweller’s store but once?”

Miss Martinez.  “Never.  I would not know the store, and do not know.  I do not recollect the name or anything about it.” 

Mr. Choate.  “There was some trouble about the ring being too large, wasn’t there?”

Miss Martinez.  “Yes, the ring was too large for the finger I wished it for.” 

Mr. Choate.  “And orders were left to have it made smaller?”

Miss Martinez.  “Yes.” 

Mr. Choate.  “What arrangement was made, if any, for your getting the ring when it should be made smaller?”

Miss Martinez.  “There was no arrangement made.  Mr. del Valle merely said that when he called upon me again he would bring it to me, and he did bring it to me.” 

Mr. Choate.  “About what time was that; in February?”

Miss Martinez.  “It was, I should say, the first week in February.  I cannot give the exact date.” 

Mr. Choate.  “Now let me again try to refresh your recollection.  Didn’t you yourself go to the jewellery store and get the ring?”

Miss Martinez.  “I myself?”

Mr. Choate.  “You yourself.” 

Miss Martinez.  “I never went to that jewellery store but once in my life arid that was with Mr. del Valle himself while I selected the ring.” 

*  *  *  *  *  *  *  *  *  *  *  *

On behalf of the defendant Mr. Choate was intending to swear as witnesses a Mr. Louis, who kept the store on Ninth Avenue around the corner from where the plaintiff lived in 44th Street, and a Mrs. Krank, who lived around the corner from her residence on 56th Street, who would both testify that the plaintiff had a confirmed habit of having letters left there, letters from various gentlemen, some of them having the monogram “F. H.,” the initials of Frederick Hammond, the clerk of the Hotel Royal.  Mr. Choate also had in his possession a letter of the twenty-second of January, in the plaintiff’s handwriting and addressed to Mr. del Valle at the inception of their acquaintance, which read, “Should you deem it necessary to write to me, a line addressed ‘Miss Howard, in care of J. Krank, 1060 First Avenue,’ will reach me.”  In anticipation of this testimony, Mr. Choate next interrogated the witness as follows:

Mr. Choate.  “Did you ever go by any other name than your own father’s name, Martinez, or your stepfather’s name, Henriques?”

Miss Martinez.  “I did not.” 

Mr. Choate.  “Did you ever have letters left for you directed to ‘Miss Howard, care of J.  Krank, No.  1060 First Avenue’?”[4]

Miss Martinez.  “I never did.” 

Mr. Choate.  “Do you know No.  1060 First Avenue?”

Miss Martinez.  “I do not.  I have no idea where it is.” 

Mr. Choate.  “Do you know what numbers on First Avenue are near to your house on 56th Street?”

Miss Martinez.  “I do not.  I never went on First Avenue.” 

Mr. Choate.  “Did you ever have any letters sent to you addressed to ‘Miss Howard, care of Mrs. C. Nelson,’ on Ninth Avenue?”

Miss Martinez.  “I never did.” 

Here Mr. Choate again treads upon the toes of the witness’ veracity, but it is difficult to see why he did not confront her then and there with her own letter.  By adopting such a course he took no chances whatever.  He would have dealt her a serious blow in the eyes of the jury.  Instead, Mr. Choate contents himself by putting this letter in evidence, while the defendant himself was on the witness-stand, and the jury never really saw the point of it until the summing up, when their heads were so full of other things that this serious prevarication of the plaintiff probably went almost unnoticed. [5]

*  *  *  *  *  *  *  *  *  *  *  *

Mr. Choate.  “At the meeting when Mr. del Valle brought the ring to your house, was anybody present?”

Miss Martinez.  “Nobody was present.” 

Mr. Choate.  “And I have forgotten how long you said it was that you kept the ring before returning it to him?”

Miss Martinez.  “I never told you any stated time.” 

Mr. Choate.  “Well, I would like to know now.” 

Miss Martinez.  “I returned the ring to him when I dissolved the engagement between him and me --- about a week or so after I had received the ring.” 

Mr. Choate.  “Then it was only a week that the engagement lasted at first before it was resumed the second time?”

Miss Martinez.  “Well, I think so.” 

The plaintiff had already read in evidence to the jury a fabricated copy of a letter breaking her engagement to the defendant, and returning him the ring.  There had been no such letter in fact handed to Mr. del Valle, but the plaintiff had substituted this alleged copy for a letter, the original of which Mr. Choate had in his possession, which was the one already referred to, wherein the plaintiff had complained of the brutal solicitations of her stepfather, and had requested him not to read until he was alone. 

Mr. Choate.  “Now you have spoken of the circumstances under which you returned him the ring in a letter, with injunctions not to open the letter until you separated.  What was your purpose in requiring him not to open the letter until he should be out of your presence?”

Miss Martinez.  “Because I knew if I told him what my purpose was, he would not accept of it.  He would not dissolve the engagement between us, and I wished him to see that I was determined upon it.  That was my purpose.” 

Mr. Choate.  “Was not the fact of the ring being in the letter quite obvious from the outside?” 

Miss Martinez.  “It was, and he asked me what it was.”  

Mr. Choate.  “Where was it that you handed him that letter?” 

Miss Martinez.  “When we were dining.” 

Mr. Choate.  “At what place?  Was it this place you have just mentioned, --- Solari’s?”

Miss Martinez.  “Yes, sir.” 

Mr. Choate.  “How many times had you been there then?”

Miss Martinez.  “We went there after our engagement very frequently.” 

Mr. Choate.  “Was that your regular place of meeting after your engagement?” 

Miss Martinez.  “Sometimes we went to Delmonico’s; more frequently we went to Solari’s.” 

Mr. Choate.  “And it was there that you handed him the letter?  How long before going there had you written the letter?”

Miss Martinez.  “It was written the day after he spoke to me of having a compromise in Cuba.  The very day after, I made up my mind to break the engagement.” 

Mr. Choate.  “Tell me, if you please, all that he said when he spoke about this compromise.” 

Miss Martinez.  “Well, we were coming home in a carriage, and he asked me when we should be married, and I told him I did not know; that I was not thinking of it yet for some time, and he said that when we should be married, he would like to be married privately, without anybody knowing anything about it.  That he had a good many friends here in New York and people that were apt to talk, and he requested me to marry him privately and at once.” 

Mr. CJwate.  “Did he say that he already had a wife as a ‘compromise’?” 

Miss Martinez.  “He did not.” 

Mr. Choate.  “Did he explain in any way what this ‘compromise,’ as you call it, was?”

Miss Martinez.  “He merely told me, ‘Oh, there is no secrecy.  I have a compromise in Cuba some trouble there, for reasons best known to myself,’ but that it was better to marry privately.” 

Mr. Choate.  “Did you believe he had another wife living in Cuba?”

Miss Martinez.  “No.” 

Mr. Choate.  “What was there that you supposed could prevent a man marrying again if he loved a woman, as he said he did you, except the existence of a wife already?”

Miss Martinez.  “Well, I thought perhaps he had some alliance with some woman whom he had promised to marry, or was obliged to marry, and could not marry any other woman under those circumstances.” 

Mr. Choate.  “He did not suggest anything of that sort?”

Miss Martinez.  “That was only the impression that I received at the time, --- what I thought.” 

Mr. Choate.  “And you never had any other impression but that, had you?”

Miss Martinez.  “No, I had not.” 

Mr. Choate.  “When you concluded to take him again, it was under that impression?”

Miss Martinez.  “Not at all.  He told me that the compromise was arranged and had been adjusted.  I took him again and became engaged to him.” 

Mr. Choate.  “Your idea of the nature of the compromise when you took him again was that he had been engaged to another woman in Cuba and promised to marry her.  Is that it?”

Miss Martinez.  “Yes, sir, it was something of that kind.” 

Mr. Choate.  “Then when you concluded to take back the ring, it was upon the understanding that he had broken an engagement with a woman in Cuba.  Did it not occur to you as an obstacle, when you took him again, that he had just broken a match with another woman?”

Miss Martinez.  “No, not at all.” 

Mr. Choate.  “You did not care for that?”

Miss Martinez.  “No.  I did not care for it, because I trusted him.”  

Mr. Choate.  “How often did Mr. del Valle visit you at this time?”

Miss Martinez.  “Four or five times a week.” 

Mr. Choate.  “Did you and your mother keep these visits of this gentleman and the engagement a secret from your stepfather?”

Miss Martinez.  “We did.” 

Mr. Choate.  “And that because of his threat to shoot you and the man if you ever married?”

Miss Martinez.  “Yes, sir.” 

Mr. Choate.  “Had your father kept weapons ready?”

Miss Martinez.  “Well, no, I do not think he did.” 

Mr. Choate seems to have changed his mind suddenly upon the advisability of introducing the atrocious stepfather’s letter.  This was the wrong time to introduce it, if at all, and his feeble attempt was productive of nothing but a hasty retreat upon his own part. 

Mr. Choate.  “Did you ever make any complaint to Mr. del Valle of being harshly treated by your stepfather?”

Miss Martinez.  “I never did.  My father never treated me harshly.” 

Mr. Choate.  “I want you to look at this signature and see whether that is yours on the paper now handed you “(passing a paper to witness). 

Miss Martinez.  “I could not say whether it is mine or not.” 

Mr. Choate.  “What is your opinion?”

Miss Martinez.  “I do not think it is.  It does not look like my signature.” 

*  *  *  *  *  *  *  *  *  *  *  *

Mr. Choate.  “How is it that you have produced here a copy of the letter in which you say you enclosed the ring in February or March.  How is that?” 

Miss Martinez.  “I do not know.  I merely found a copy one day in a book.  I never made a practice of copying.” 

Mr. Choate.  “When and where did you make the copy of that letter?”

Miss Martinez.  “I did not make any copy of it after I had sent the letter to Mr. del Valle, but the paper upon which I wrote was defective when I wrote it to him.  There was a blot or something on it, and I found the copy afterwards!”

Mr. Choate.  “Then you do know exactly how you came to have a copy?” 

Miss Martinez.  “Yes, it was in my desk drawer, that is all, but I did not make a practice of keeping copies of all the papers.” 

Mr. Choate.  “Did you not say a moment ago that you did not know how you came to have a copy?”

Miss Martinez.  “No; I did not say I did not know how I came to have a copy.” 

Mr. Choate.  “In what respect did this copy differ from the original enclosing the ring?”

Miss Martinez.  “It did not differ.  I only said there was a blot upon the paper and I put it into a drawer and wrote another one, and that paper remained blotted in the drawer for a considerable length of time.” 

Mr. Choate.  “What part of the paper was the blot on?”

Miss Martinez.  “The first page.” 

Mr. Choate (handing the letter to the witness).  “Whereabouts do you see the blot?” 

Miss Martinez.  “Oh, well, it is not on the copy at all.” 

Mr. Choate.  “Oh, you sent the blotted one?”

Miss Martinez.  “No, I did not.  I kept the blotted one in the drawer.  I did not send that.” 

Mr. Choate.  “Where is the blotted one?”

Miss Martinez.  “I have it at home.  I have a copy of all these letters at home.” 

Mr. Choate.  “Then you made a second copy from that blotted copy?”

Miss Martinez.  “I did.” 

Mr. Choate put one question too many by asking, “Where is the blotted one?”  The effect of his previous questions concerning this fabricated copy of a letter was entirely lost by allowing her a chance to reply, “I have the blotted copy at home.  I have a copy of all these letters at home.”  The reply was false, but had she been called upon to produce the blotted copy she could have easily supplied it over night.  Mr. Choate had made his point, a good one, but he didn’t leave it alone and so spoiled it. 

All through his examination Mr. Choate skipped from one subject to another, and then, without any apparent reason, returned to the same subject again.  This may have been intentional art on his part or it may have been, as is so often the case in the excitement of a long trial, that new ideas occurred to him which brought him back to old subjects that had apparently already been exhausted.  It’ would have been far more intelligible to the jury to have exhausted one subject at a time.  It is asking too much of an ordinary juryman to shift his attention back and forth from one subject to another and expect him to catch all the points and carry clearly in his memory all that has been previously said on the subject.  This mistake is almost unavoidable unless the cross-examination is thought out thoroughly in advance, which, of course, is sometimes impracticable, as perhaps in the present case. 

It was part of the plaintiff’s evidence that Mr. del Valle had induced her to leave her home and go to the Hotel Royal under an assumed name until he could engage a house in the country where she could live as the governess to his children, pending their marriage, and on a salary of $100 a month.[6]  She said Mr. del Valle’s object was to avoid the threat of her stepfather to shoot any man to whom she might become engaged.  Mr. del Valle’s own version of the story was that Miss Martinez went to the Hotel Royal of her own accord; notified him that she was there, that she had deserted her home in consequence of her stepfather’s advances to her, and that she was afraid to return.  She then begged him to allow her to teach his children and to live with him in the country.  Evidently it was with these facts in mind that Mr. Choate cross-questioned the plaintiff as follows:

Mr. Choate.  “Now you say, Miss Martinez, that you went to the hotel on the twenty-eighth day of April?”

Miss Martinez.  “I did.” 

Mr. Choate.  “From where did you go?”

Miss Martinez.  “From my own home.” 

Mr. Choate.  “Did you know anybody at that hotel?”

Miss Martinez.  “I did not.” 

Mr. Choate was prepared to show that the plaintiff was acquainted with the clerk of the Hotel Royal, a man by the name of Frederick Hammond, who on several occasions was seen by the bell-boys in her room at the Hotel Royal, at which times the door of her bedroom was locked.  The defendant’s evidence subsequently showed, also, that many of the letters sent to the plaintiff under the name of Miss Howard, and addressed to different letter boxes on First Avenue, etc., had on the envelope the monogram “F.  H.”  (Frederick Hammond). 

Mr. Choate.  “Did you know any of the managers or clerks at the Hotel Royal?”

Miss Martinez.  “I did not.” 

Mr. Choate.  “Did you register your name at that hotel?”

Miss Martinez.  “I just merely gave my name as ‘Miss Livingston.’ I did not register.  I suppose I was registered.”  (The name “Miss Livingston “registered on the hotel register was in the handwriting of this same Frederick Hammond.)

Mr. Choate.  “To whom did you give your name as ‘Miss Livingston’?” 

Miss Martinez.  “To a gentleman whom I saw before taking board there.  I went to arrange for a room the day before, and he asked me my name and showed me a room and I told him my name was ‘Miss Livingston,’ and he put it down.” 

Mr. Choate.  “Who was that gentleman?”

Miss Martinez.  “I do not know who he was, or what he was.” 

Mr. Choate.  “Do you know a gentleman named Frederick Hammond?”

Miss Martinez.  “My receipts were signed that way, by the name of Hammond.  Mr. del Valle told me that he was acquainted with some of the managers of the hotel, and it was that hotel that he suggested my going to.” 

Mr. Choate.  “You went by his suggestion?”

Miss Martinez.  “Went by his suggestion to this hotel.” 

Mr. Choate.  “Did he tell you of Frederick Hammond?”

Miss Martinez.  “He did not.  He merely said that he knew some of the managers.” 

Mr. Choate.  “You say that Hammond was the name signed to your receipt?”

Miss Martinez.  “Yes, sir.” 

Mr. Choate.  “Was that the name of the gentleman to whom you gave your name as ‘Miss Livingston’?” 

Miss Martinez.  “I really do not know.” 

Mr. Choate.  “Was it anybody you had ever seen before?”

Miss Martinez.  “I had never seen the person before in my life.”[7]

Mr. Choate.  “And you do not know how or by whom your name was registered in that hotel book?”

Miss Martinez.  “I do not know.  The gentleman merely asked me my name and I told him.  I told him the room would suit me, and I would come the next day.” 

Mr. Choate.  “Then you went alone both days?”

Miss Martinez.  “I did.” 

Mr. Choate.  “And both times without the defendant?”

Miss Martinez.  “Without the defendant.” 

Mr. Choate.  “You selected a room that suited you?”

Miss Martinez.  “I did.  On the top floor.  It was the only room that was available.” 

It was shown later that this room was a small-sized hall bedroom, and yet Miss Martinez was supposed to have made this arrangement with this hotel at the request of her wealthy affianced husband.  In speaking of this in his summing up, Mr. Choate says:

“That does not look like Mr. del Valle’s generous accommodations.  Mr. del Valle was profuse, lavish.  She had the richest meats, the finest terrapin, wines of her own choice, always, at Solari’s.  But here in a little four-by-ten room, in the fourth story of the Hotel Royal, why, gentlemen, that looks to me a little more like Frederick Hammond, who wrote her name in the hotel register!”

Mr. Choate.  “Did the defendant select this name of Livingston for you?”

Miss Martinez.  “He merely told me to take an assumed name, to go under some other name, and I chose the name of Livingston.” 

The purpose of this line of questions was shown in the summing up to have been as follows:

“Now, gentlemen, you have all been married, I infer from your appearance.  [Laughter.]  You have been through this mill of an engagement to be married.  No matter what kind of a man he is, he may be as bad as men are ever made, or from that all the way to the next grade below the archangels, and I put it to you on your judgment and common sense and your conscience, that you cannot find a man who would take the betrothed of his heart, the woman whom he had chosen to be his wife, and the mother of his children, who would take her to a hotel in the city of New York to live for a longer or shorter period under an assumed name. 

“The plaintiff went to this hotel by the name of ‘Livingstone?  It was a good selection! She says Del Valle did not choose that name.  She had already passed by the name under which she could claim the blood of all the Howards, but now she claimed alliance with the noble stock of Livingstons.” 

Mr. Choate.  “Did you object to it when he told you to go there under an assumed name?”

Miss Martinez.  “No, I did not.” 

Mr. Choate.  “You were entirely willing to go to a strange hotel alone under an assumed name?”

Miss Martinez.  “Yes.  For a short while.” 

Mr. Choate.  “I wish you would tell us again precisely what it was that induced you to go to this strange hoteJ under such circumstances?”

Miss Martinez.  “Well, Mr. del Valle suggested that perhaps it would be better for me.  He did not wish to have any trouble with my stepfather concerning my disappearance, neither did I wish to give him any unnecessary trouble if my father should take any violent steps of any kind, as he had so often threatened to do, and he suggested that I should take a room somewhere at some hotel, and see how papa would act.” 

Mr. Choate.  “How was papa to know anything about it if you were under an assumed name?”

Miss Martinez.  “Well, he certainly would know something about it when I left home.” 

Mr. Choate.  “And the plan was that he should know about it?”

Miss Martinez.  “Should know what?”

Mr. Choate.  “Should know that you had gone?”

Miss Martinez.  “Why, of course.” 

Mr. Choate.  “To this hotel?”

Miss Martinez.  “No, not to the hotel.  He knew that I had left home, and my fear was that he would hire detectives to search for me, and of course, if he discovered me in Mr. del Valle’s home, I could not answer for the consequences.” 

Mr. Choate.  “What consequences did you apprehend?”

Miss Martinez.  “I apprehended that he would kill Mr. del Valle and kill me.” 

Mr. Choate.  “And rather than that, you were willing to go to this hotel in this manner?”

Miss Martinez.  “Certainly, Mr. del Valle suggested it.”[8]

Mr. Choate.  “Do you know whether your father did do anything because of your leaving?”

Miss Martinez.  “Yes, I know that he put a personal in the Herald for me.” 

Mr. Choate.  “Did you show this ‘personal’ to Mr. del Valle?”

Miss Martinez.  “I showed it to him.” 

Mr. Choate.  “Did you discover it in the Herald?”

Miss Martinez.  “I did.” 

Mr. Choate.  “The ‘personal’ in the Herald of the second day of May, or about five days after you had reached the hotel, is contained in this paper which I now show you, isn’t it?”

Miss Martinez.  “Yes.” 

Mr. Choate.  “Now after the second day of May, therefore, you knew that this ‘personal’ had come from your father, didn’t you?” 

Miss Martinez.  “I did.” 

Mr. Choate.  “After you knew that your father was inconsolable and would make all satisfactory,’ you did not have any more fear of his shooting you or Mr. del Valle either, did you?”

Miss Martinez.  “I most certainly did.  My father was not to be relied upon in what he said at all.  He said a great many things which he never meant.” 

Mr. Choate.  “Do you mean that he did not have a good reputation for veracity?”

Miss Martinez.  “Not at all.  But I knew that he had always threatened to shoot me and my husband, if I ever had one, and I knew that he would not make ‘all satisfactory,’ and that is why I did not return home.” 

Mr. Choate.  “Did you answer this ‘personal’?” 

Miss Martinez.  “I did not.” 

Mr. Choate.  “Did you take any notice of your unhappy father?”

Miss Martinez.  “I did not.” 

Mr. Choate.  “Made no effort to console him?”

Miss Martinez.  “I did not.  I loved Mr. del Valle, and went with Mr. del Valle and trusted him.  I had nothing to do with my father.  My father had many others to console him.” 

Mr. Choate.  “While you were at the Hotel Royal did you make a visit to the Central Park with Mr. del Valle?”

Miss Martinez.  “Yes, frequently we went up to the Park and walked all round.  It was the only chance I had of going out when he took me up there.” 

Mr. Choate.  “Do you remember anything you told him at that time?”

Miss Martinez.  “Nothing in particular.” 

Mr. Choate.  “Did you tell him that your stepfather had been using you brutally?”

Miss Martinez.  “I did not.  I never told him any such thing.” 

Mr. Choate.  “Did you say that you had to leave home and go to the hotel because of the bad treatment of your stepfather?”

Miss Martinez.  “I never did tell him so.” 

Mr. Choate.  “Did you ever tell anybody that?”

Miss Martinez.  “I could never tell any one so, because my stepfather never treated me badly.” 

Later in the trial Mrs.  Quackenbos testified on the part of the defendant that while she was visiting Mr. del Valle’s summer home at Poughkeepsie, she was introduced to the plaintiff as “Miss Henriques, the housekeeper,” and that during the conversation that followed she expressed her surprise at seeing so young a lady in that position.  Whereupon the plaintiff had replied that she “had a mystery attached to her life, which she would tell Mrs.  Quackenbos and perhaps she would then think differently.”  She testified that the plaintiff had told her that her mother had married her uncle, and that she lived very unhappily at home owing to her stepfather’s constant overtures to her; that her stepfather was enamored of her; that the plaintiff in making this confession had used these words, “That is why I am here, madame.  My mamma asked Mr. del Valle to take me from my home.”  The plaintiff told Mrs.  Quackenbos that it was impossible for her to remain at home; that she was almost exhausted from fighting for her honor; and that her mother had begged Mr. del Valle to take her away.  In speaking of this evidence in the summing up, Mr. Choate said:

“Why, she said, gentlemen, that she had been driven from her home by the amorous persecutions of her stepfather, and that her mother had besought Mr. del Valle to take her to his house as his governess and housekeeper.  You can’t rub that out, gentlemen, if you dance on it all night with India-rubber shoes!”

*  *  *  *  *  *  *  *  *  *  *  *

Mr. Choate.  “When was it that the arrangements were completed and the family moved to the summer home in Poughkeepsie?”

Miss Martinez.  “The 1st of June.” 

Mr. Choate.  “Did you go direct to Poughkeepsie with Mr. del Valle and his children?” 

Miss Martinez.  “I did.” 

Mr. Choate.  “Now, I understand you that until the end of the first week of your stay at Mr. del Valle’s house in Poughkeepsie, that is until this 6th of June which you have spoken about, and from the I4th of January, when you first made Mr. del Valle’s acquaintance, he was uniformly kind and courteous?”

Miss Martinez.  “Always.” 

Mr. Choate.  “And there was not the least symptom of impropriety in his conduct towards you?”

Miss Martinez.  “Never, sir.  He never offered me the slightest indignity on any occasion.” 

Mr. Choate.  “And no approach towards impropriety on his part?”

Miss Martinez.  “Never.  Not on any single occasion.  Not a breath of it.” 

Mr. Choate.  “As to this occurrence of the 6th of June, I understand you to say that after breakfast you went up to your room and lay down?”

Miss Martinez.  “I did.” 

Mr. Choate.  “And I understand you to say that was your usual habit?”

Miss Martinez.  “Yes, sir.  It was not an everyday habit; it was more of a Sunday habit.” 

Mr. Choate.  “What time of the day did you have breakfast on that Sunday?”

Miss Martinez.  “At eleven o’clock in the morning.” 

Mr. Choate.  “How do you fix the date?”

Miss Martinez.  “I think it is a day in a woman’s life that she can never forget.”[9]

Mr. Choate.  “And you fix it as your first Sunday in Poughkeepsie?”

Miss Martinez.  “I do.” 

Mr. Choate.  “Who were the members of the household at that time on that day?  Who were they besides yourself and Mr. del Valle?”

Miss Martinez.  “There were the two younger children, Mr. Alvarez, and the servants.” 

Mr. Choate.  “How many servants were there?”

Miss Martinez.  “There were seven servants.” 

Mr. Choate.  “And your room was where?”

Miss Martinez.  “My room was on the same floor with the family and Mr. del Valle’s and the children’s, and next to the nurse and the two younger children, all the children, in fact.” 

Mr. Choate.  “Now at breakfast who were present that morning?”

Miss Martinez.  “The children, Mr. Alvarez, Mr. del Valle, and myself.” 

Mr. Choate.  “What time was it you finished breakfast?”

Miss Martinez.  “About half-past eleven or a quarter to twelve, perhaps twelve o’clock; I do not remember.” 

Mr. Choate.  “And how soon after you had finished breakfast did you go to your room?”

Miss Martinez.  “Immediately after.” 

Mr. Choate.  “Did you go alone?”

Miss Martinez.  “I did.” 

Mr. Choate.  “What did you do?” 

Miss Martinez.  “I lay on my bed reading.  I could hear the children downstairs.  They were on the veranda.  I heard their voices as they went away from the house with the nurse/’

Mr. Choate.  “You remained on your bed, did you?” 

Miss Martinez.  “I did.  I was interested in my book and I commenced to read.” 

Mr. Choate.  “Did you remain upon the bed from the time you first took your place upon it until Mr. del Valle had accomplished what you charged upon him yesterday?”

Miss Martinez.  “I did.” 

Mr. Choate.  “And were not off the bed at all?”

Miss Martinez.  “I was not.  I had partially arisen when he entered.” 

Mr. Choate.  “The door of your room opened into the centre of the house, did it not?”

Miss Martinez.  “It did.” 

Mr. Choate.  “Did you close the door?* 1

Miss Martinez.  “I did.” 

Mr. Choate.  “Did you lock it?”

Miss Martinez.  “I did not.” 

Mr. Choate.  “Did you hear any other sound before Mr. del Valle appeared in your room?”

Miss Martinez.  “I did not.  Merely the children’s receding voices in the distance.” 

Mr. Choate.  “This was a warm summer day, was it not?” 

Miss Martinez.  “It was.  The sixth of June.” 

Mr. Choate.  “Were the windows open?”

Miss Martinez.  “Yes.” 

Mr. Choate.  “Did Mr. del Valle knock upon the door?”

Miss Martinez.  “He did not.” 

Mr. Choate.  “You heard the door open?”

Miss Martinez.  “I did.” 

Mr. Choate.  “You saw him enter?”

Miss Martinez.  “I did.” 

Mr. Choate.  “And were you lying upon the bed?” 

Miss Martinez.  “I was.” 

Mr. Choate.  “Did you get up from the bed?”

Miss Martinez.  “I just attempted to rise.” 

Mr. Choate.  “Who prevented you?”

Miss Martinez.  “He came over to me and sat down on the side of the bed.” 

Mr. Choate.  “Did he shut the door?”

Miss Martinez.  “He did.” 

Mr. Choate.  “While he was doing that did you attempt to rise?” 

Miss Martinez.  “I did.” 

Mr. Choate.  “Why didn’t you rise?”

Miss Martinez.  “Because I could not.  He came over to me before I had partially risen.” 

Mr. Choate.  “Do you mean to say that in the time of his coming in and presenting himself and opening and shutting the door, there was not time for you to spring up from the bed?”

Miss Martinez.  “There was not, because he was already half in the room before I heard that he was in.  I was engaged in reading at the time, and he had opened the door very softly.” 

Mr. Choate.  “Was there time for you to begin to start from the bed?”

Miss Martinez.  “Well, I do not know.  I did not study the time.” 

Mr. Choate.  “How long was he in your room that morning?”

Miss Martinez.  “I cannot say exactly.” 

Mr. Choate.  “You can say whether he was there an hour, or two hours, or half an hour?”

Miss Martinez.  “Well, he was there about an hour.” 

Mr. Choate.  “Did you make an outcry while he was in the room?”

Miss Martinez.  “No, I did not scream.” 

Mr. Choate.  “Did not attempt to scream, did you?”

Miss Martinez.  “No, I did not attempt to scream.  I remonstrated with him.” 

Mr. Choate.  “Did you speak in a loud voice?”

Miss Martinez.  “Well, not to be heard all over the house, but if anybody had been in the room he would have heard me.” 

Mr. Choate.  “Did you speak low?”

Miss Martinez.  “Lower than I am speaking now.” 

Mr. Choate.  “You did not make any effort to make yourself heard by anybody in the house, or outside?”

Miss Martinez.  “No, I was not afraid of Mr. del Valle.  I did not think he came into my room to murder me, nor to hurt me.” 

Mr. Choate.  “You found out, according to your story, what he did come for, after a while, didn’t you?”

Miss Martinez.  “Yes.” 

Mr. Choate.  “And before he accomplished his purpose?”

Miss Martinez.  “Yes.” 

Mr. Choate.  “Now, didn’t you speak above a low voice then?”

Miss Martinez.  “Well, perhaps I did.” 

Mr. Choate.  “Well, did you?”

Miss Martinez.  “I think I did.” 

Mr. Choate.  “Well, did you scream out?”

Miss Martinez.  “I did not.” 

Mr. Choate.  “Did you call out?”

Miss Martinez.  “I did not.” 

Mr. Choate.  “Did you speak loud enough to be heard by any of the servants below, or anybody in the hall or on the veranda?”

Miss Martinez.  “I do not think anybody could have heard me.” 

Mr. Choate.  “Why didn’t you cry out?”

Miss Martinez.  “Because he told me not to.” 

Mr. Choate.  “Oh, he told you not to?”

Miss Martinez.  “Yes.” 

Mr. Choate.  “Then it was a spirit of obedience to him.” 

Miss Martinez.  “Just as you please to look upon it.” 

Mr. Choate.  ‘“Just as I please to look upon it’?”  Well, I look upon it so.  Now you say that you do not think he had any evil purpose when he came into the room?” 

Miss Martinez.  “No, I cannot believe he did.” 

Mr. Choate.  “And you do not think so now?”

Miss Martinez.  “Oh, I do think so now, certainly.” 

Mr. Choate.  “You did not think so then?”

Miss Martinez.  “No, I did not when he entered the room.” 

Mr. Choate.  “There was nothing indicating an evil purpose on his part?”

Miss Martinez.  “No, I do not think so.” 

Mr. Choate.  “How long had he been there before there was anything on his part that indicated to you any evil intent?”

Miss Martinez.  “About fifteen minutes.” 

Mr. Choate.  “Before you had the least idea of any evil intent on his part?”

Miss Martinez.  “Well, I did not then think he had any evil intent.” 

Mr. Choate.  “Were you fully dressed that morning?” 

Miss Martinez.  “Fully dressed.” 

Mr. Choate.  “And fully dressed when he came into the room?”

Miss Martinez.  “Fully dressed.” 

Mr. Choate.  “Just as you had been at breakfast?” 

Miss Martinez.  “Just the very same.” 

Mr. Choate.  “You were lying on the bed.  Where was he?”

Miss Martinez.  “He was also on the bed.” 

Mr. Choate.  “Sitting by your side?” 

Miss Martinez.  “Yes.” 

Mr. Choate.  “And you and he were engaged in conversation, were you?”

Miss Martinez.  “We were.” 

Mr. Choate.  “Sometime during that hour you became partly undressed, I suppose.  When was that?”

Miss Martinez.  “How do you know I became partly undressed?  Y ‘

Mr. Choate.  “I judge so from what you have stated.  I beg your pardon.  Did you, or did you not?”

Miss Martinez.  “No, I did not become undressed.  Merely Mr. del Valle took my belt off.  I had a wrapper on.  I had a black silk belt.” 

Mr. Choate.  “You had a belt?  How was that secured?”

Miss Martinez.  “Just merely by hook and eye.  It was a black silk ribbon belt.” 

Mr. Choate.  “And that became unhooked?” 

Miss Martinez.  “It did not become unhooked; Mr, del Valle unhooked it.” 

Mr. Choate.  “What was it you did when he unhooked the belt?  Did you cry out?” 

Miss Martinez.  “No, I did not cry out.  I told you I made no outcry whatever.” 

Mr. Choate had made his point.  Immediately the idea flashed across his mind that if he stopped here he had one of the opportunities of his life for the summing up.  This is how he made use of it:

“Gentlemen of the jury: This is not a story of Lucretia and Tarquin, who came with his sword.  Oh, no, there was not any sword.  They conversed together.  There is not a word as to what was said, and after a while, the story is, he unbuckled her belt and then it was all over! On the unloosening of her belt, she went all to pieces! Gentlemen, my question to you, which I want you to take to the jury room and answer, is whether, under such circumstances, by the mere undoing of that hook and eye, and the unloosening of that belt, a woman would go all to pieces unless there was something of a very loose woman behind the belt! All the household was there.  Why did she not cry out?  Why did she not raise that gentle-tempered voice of hers a little?  A silent seduction, by her own story!”

*  *  *  *  *  *  *  *  *  *  *  *

Mr. Choate.  “Now, Miss Martinez, you have spoken of your father being sometime or other informed of your having gone to Poughkeepsie, and did you also understand that he was informed of your project of marriage?”

Miss Martinez.  “Yes, sir, he was.” 

Mr. Choate.  “Did he come up with his revolver?” 

Miss Martinez.  “He did not.” 

Mr. Choate.  “Did he make any effort to see you?”

Miss Martinez.  “No, he did not.” 

Mr. Choate.  “Did he make any effort to see Mr. del Valle?”

Miss Martinez.  “He did not.” 

Mr. Choate.  “He appeared at Poughkeepsie after a while, did he not?” 

Miss Martinez.  “Yes, he did.  My mother revealed the fact to him that I was at Poughkeepsie and engaged to be married to Mr. del Valle, and insisted upon his acting reasonably.” 

Mr. Choate.  “And he did act reasonably, did he not?”

Miss Martinez.  “He did.” 

Mr. Choate.  “He came up making visits?” 

Miss Martinez.  “He did.” 

Mr. Choate.  “Was Mr. del Valle at home?”

Miss Martinez.  “He was.” 

Mr. Choate.  “And you were there?”

Miss Martinez.  “I was.” 

Mr. Choate.  “Did you see the meeting between your father and Mr. del Valle?”

Miss Martinez.  “I did.  I introduced my father tc Mr. del Valle.” 

Mr. Choate.  “Everything was agreeable and pleasant, was it?”

Miss Martinez.  “Very pleasant indeed.” 

Mr. Choate.  “And your father stayed to dinner?”

Miss Martinez.  “He did.” 

Mr. Choate.  “Did he make any threats?”

Miss Martinez.  “He did not.” 

Mr. Choate.  “Did he exhibit any violence?”

Miss Martinez.  “He did not.” 

Mr. Choate.  “Then all your fears proved to have been unfounded, didn’t they?”

Miss Martinez.  “Not at all.” 

Mr. Choate.  “You think that after all, if you had married Mr. del Valle, he would have carried his threats into execution?”

Miss Martinez.  “I think he would, most certainly.” 

Mr. Choate.  “And yet he came up pleasantly and spent the day with Mr. del Valle and you at Mr. del Valle’s house, knowing that you were living in his house?”

Miss Martinez.  “Yes.” 

Mr. Choate.  “Upon a promise of marriage?”

Miss Martinez.  “He did.” 

Mr. Choate.  “Did he try to dissuade you from marrying?” 

Miss Martinez.  “He did not.” 

Mr. Choate.  “And yet you think that if you married, he would have shot you and Mr. del Valle?”

Miss Martinez.  “I do most certainly think so.” 

*  *  *  *  *  *  *  *  *  *  *  *

Mr. Choate.  “Miss Martinez, did you write a letter, dated September 8, to Mr. del Valle?” [10]

Miss Martinez.  “I did.” 

Mr. Choate.  “Is this the letter which I now show you?”

Miss Martinez.  “Well, it may be, but I would not swear to it.” 

Mr. Choate.  “Will you swear it is not?”

Miss Martinez.  “No, I would not swear it is not.” 

Mr. Choate.  “In this letter you say, ‘I have been very happy in your house’?” 

Miss Martinez.  “Yes.” 

Mr. Choate.  “That was true, was it not?”

Miss Martinez.  “It was very true.” 

Mr. Choate.  “During that period was it true that you were ‘very happy ‘in his house?”

Miss Martinez.  “Until the 6th of June, the Sunday I told you about a little while ago.” 

Mr. Choate.  “That was four days?”

Miss Martinez.  “Well, that was some time.” 

Mr. Choate.  “You got there on the night of the 1st, didn’t you?”

Miss Martinez.  “Yes, I did.” 

Mr. Choate.  “And your happiness came to an end on the morning of the 6th?”

Miss Martinez.  “Yes, it did.” 

Mr. Choate.  “And that was what you meant when you wrote, ‘I have been very happy in your house’?” 

Miss Martinez.  “I did, and up to the time when I heard of the compromise not being adjusted.” 

Mr. Choate.  “Oh, you were very happy till then?”

Miss Martinez.  “Yes.” 

Mr. Choate.  “‘I will always think of the many happy hours spent with you.’ What did you mean by ‘the many happy hours’?” 

Miss Martinez.  “What did I mean by it?”

Mr. Choate.  “Yes, what hours did you mean?”

Miss Martinez.  “I meant the hours that I spent with Mr. del Valle and which were happy.” 

Mr. Choate.  “Before the 6th of June?”

Miss Martinez.  “Yes.”  

Mr. Choate.  “And none after?”

Miss Martinez.  “Not many.” 

Mr. Choate.  “Then your object in writing this letter was to thank him for the many happy hours spent with him between the afternoon of the 1st of June, when you arrived, and the morning of the 6th of June, was it?” 

Miss Martinez.  “It was.” 

Mr. Choate.  “‘And which were the only ones I have ever known.’ What did you mean by that, --- to compare the hours of those four days of June with all the previous hours of your life?”

Miss Martinez.  “I meant with all the previous hours of my life ---  I had never been happy in all my life.” 

Mr. Choate.  “As in those four days?”

Miss Martinez.  “No.” 

Mr. Choate.  “What was it that prevented your being equally happy from the time of your engagement down to the 1st of June?”

Miss Martinez.  “Oh, I don’t think it was a very happy state of mind I was in, to be engaged to Mr. del Valle and could not see him as I wished to, occasionally in the evenings.  I was restricted.” 

Mr. Choate.  “It was the restrictions that were placed upon your seeing Mr. del Valle, and yet you saw him eight times a week, I think you testified, and every day you spent hours in his company?”

Miss Martinez.  “Not every day.” 

Mr. Choate.  “Well, whenever you met?”

Miss Martinez.  “Yes.” 

Mr. Choate.  “And you were alone together?” 

Miss Martinez.  “We were.” 

Mr. Choate.  “And his conduct towards you during all these hours was absolutely unquestionable?”

Miss Martinez.  “Unquestionable.” 

Mr. Choate.  “Why, then, did you say that the hours of the 2d, 3d, 4th, and 5th of June that you spent with him, were the only happy hours that you had ever known compared with the previous hours spent with Mr. del Valle?” 

Miss Martinez.  “It was just merely from the fact that my father’s manner and way towards me made me always unhappy.” 

Mr. Choate.  “That is, the fear that your father, if he found it out, would shoot you and your intended?  5:

Miss Martinez.  “It was.” 

Mr. Choate.  “You still had that fear during the 2d, 3d, 4th, and 5th of June, it seems, didn’t you?”

Miss Martinez.  “No, I didn’t have that fear as much as I had.” 

Mr. Choate.  “You said that was not dissipated until your father’s second visit in August.” 

Miss Martinez.  “So it was not, but I did not have as much fear then as I had before.” 

Mr. Choate.  “Oh, because your father was in New York and you at Poughkeepsie?”

Miss Martinez.  “Yes.” 

Mr. Choate.  “‘I leave it to God to grant you the reward you so much deserve, and which is impossible for you to receive on this earth.’ Reward for what, do you mean?”

Miss Martinez.  “Oh, I had a conversation with Mr. del Valle before I wrote that letter to him.” 

Mr. Choate.  “I am asking you now the meaning of this letter.  What acts and conduct of his was it, taken all together, that you left it to God to reward him for, because it was impossible for him to have any reward on earth for it?”

Miss Martinez.  “I did not mean at all what I wrote.” 

Mr. Choate.  “Oh, you did not mean what you wrote?”

Miss Martinez.  “No, I did not.  I merely wished to keep Mr. del Valle as my friend.” 

Mr. Choate.  “Are you in the habit now of writing what you do not mean?”

Miss Martinez.  “I am certainly not in the habit.” 

Mr. Choate.  “But this you did not mean at all, did you?”

Miss Martinez.  “Oh, I meant some of it, some I didn’t.” 

Mr. Choate.  “How much of it did you mean?  Did you mean that you ‘left it to God to grant the reward he so much deserved ‘; or did you mean ‘that it was impossible for him to receive that reward on earth ‘?  Which part of it did you mean?”

Miss Martinez.  “I meant no part of that.” 

Mr. Choate.  “Did you understand that Mr. del Valle was to come and see you in New York?”

Miss Martinez.  “I did, certainly.” 

Mr. Choate.  “And so you understood when you wrote this letter?”

Miss Martinez.  “I did.” 

Mr. Choate.  “Now you began, ‘My dear friend, it may be that I may never see you again/ What did you mean by that?”

Miss Martinez.  “Because I doubted his word, and thought perhaps I should never see Mr. del Valle again, treating me as he had.” 

Mr. Choate.  “You doubted his word, and you wrote him what you did not mean at all.  Does that represent the real state of the relations between you at that time?”

Miss Martinez.  “Well, the relations between us at the time would be very difficult indeed to define.” 

Mr. Choate.  “I will complete the first sentence, ‘still, I feel that I cannot leave your house without thanking you for all your kindness to me.’ ‘

Miss Martinez.  “Mr. del Valle always was very kind to me, always.” 

Mr. Choate.  “And you thought that, taking his whole conduct together from the beginning to the end of your stay, it was incumbent upon you not to leave without thanking him for all his kindness to you.  Is that so?”

Miss Martinez.  “Yes.” 

Mr. Choate.  “And you meant that, didn’t you?”

Miss Martinez.  “Well, no, I didn’t mean it exactly.” 

Mr. Choate.  “‘I have been very happy in your house.’ Did you mean that?”

Miss Martinez.  “I was very happy in his house and I was very miserable.” 

Mr. Choate.  “After you got to New York, Mr. del Valle did not come to see you?”

Miss Martinez.  “He did not.”

Mr. Choate.  “And you have never seen him since until you saw him in this court room?”

Miss Martinez.  “I have not.” 

*  *  *  *  *  *  *  *  *  *  *  *

Mr. Choate.  “In those visits to Solari’s you spoke of the other day, did you always have a private room, no one being present but yourselves and the waiter?”

Miss Martinez.  “We did have a private room.” 

Mr. Choate.  “Did you always have the same room?”

Miss Martinez.  “No, not always.” 

Mr. Choate.  “How many different private rooms should you think you had at Solari’s?”

Miss Martinez.  “I can’t tell you how many different ones, --- perhaps two or three.” 

Mr. Choate.  “Was Mr. del Valle’s demeanor to you on such occasions the same as it was when you were in your mother’s house and in the street, and in public places like the opera and matinee?”

Miss Martinez.  “Always the same in a private room as he was at home when my mother was not there.  He used to kiss me frequently, but he never kissed me at matinees, nor did he kiss me in the street.  Our intercourse and behavior, therefore, must have been different.” 

Mr. Choate.  “Otherwise it was the same?”

Miss Martinez.  “Always most respectful.” 

Mr. Choate.  “As to his kisses, of course you made no objection?”

Miss Martinez.  “None at all.” 

Mr. Choate.  “How long were these interviews at Solari’s, --- these meetings when you went there and had a private room generally?”

Miss Martinez.  “They varied in length.  Sometimes we arrived there at two o’clock and remained until four, ---sometimes we arrived there a little earlier.” 

Mr. Choate.  “About a couple of hours.” 

Miss Martinez.  “Two or three hours.” 

Mr. Choate.  “What were you doing all that time?”

Miss Martinez.  “We were eating.” 

Mr. Choate.  “What, not eating all the time?”

Miss Martinez.  “Eating all the time.” 

Mr. Choate.  “Two hours eating! Well, you must have grown fat during that period! ‘

Miss Martinez.  “Well, perhaps you eat much quicker than I do.” 

Mr. Choate.  “You think you ate all that time?”

Miss Martinez.  “Well, I do not say we gormandized continually.” 

Mr. Choate.  “But pretty constantly eating; that was the only business?”

Miss Martinez.  “First we had our dinner and then there was a digression of about half an hour before we called for dessert.  That perhaps took up another hour.” 

Mr. Choate.  “During that ‘digression ‘what did you generally do?”

Miss Martinez.  “We used to talk.” 

Mr. Choate.  “How did Mr. del Valle progress with his English?” 

Miss Martinez.  “Very well indeed.  Remarkably well.” 

Mr. Choate.  “Did you practise English at Solari’s?” 

Miss Martinez.  “Yes, frequently.” 

Mr. Choate.  “That was a pretty constant occupation at all your meetings in those private rooms at Solari’s, wasn’t it, --- practising or speaking English?” 

Miss Martinez.  “We frequently spoke about the rules of the language.” 

Mr. Choate.  “Did his English during these intervals improve?”

Miss Martinez.  “I think it did.” 

Mr. Choate.  “And you did all you could to improve it, I suppose?”

Miss Martinez.  “Undeniably so.” 

Mr. Choate.  “You even had a book of conversation with you?”

Miss Martinez.  “We had.” 

Mr. Choate.  “And did he make great efforts at those times to improve and advance his English?”

Miss Martinez.  “I believe he did.” 

Referring in his summing up to this part of the examination, Mr. Choate said: ---

“What I am endeavoring to show you, gentlemen, is that the action of the parties does not confirm this idea of a promise of marriage, because from what you have heard of this place, from the sentiment which has made itself apparent in this court room whenever the name Solari was mentioned, I think you will bear me out in saying that it is not a place where ladies and gentlemen go for courtship with a view to matrimony.  From what you know of the place, if you had made the acquaintance of a young woman and become betrothed to her, is it to Solari’s you would go to do your courting with a view to matrimony?  All of us, every juryman, will say ‘No,’ and will you not judge the defendant as you judge yourselves? 

“The defendant was tickled, attracted, and pleased.  Here was a woman who could speak his own language and they could pick up the broken fragments of his English and her Spanish, and put them together, and he liked nothing better, and so they went to Solari’s!

“Well, gentlemen, I do not know anything about Solari’s except what is shown here upon the evidence.  So far as I can make out, however, people go to Solan’s for all sorts of purposes.  Men go there with ladies, ladies with ladies, men with men, theatre parties, family parties, matinee parties, all sorts of parties, and these parties went there together.  But under the developments of this case, Solari’s assumes new importance and acquires a new fame.  It is no longer a mere restaurant.  It is no longer a mere place of refreshment for the body, where you can get meat and wine and whatever is pleasant for the inner mind; it now attains celebrity as a new school of learning, patronized, brought into notice, by my client and the fair plaintiff as a place where you can go to drink of the Fountain of Knowledge.  [Laughter.]  They had a ‘Guide to Conversation.’ “I think the fair plaintiff said that there were ‘digressions ‘there.  They ate and drank, she thinks they ate and drank for two hours at a time, but I compelled her to say that there was an intermediate ‘digression.’ What there was in the digressions does not exactly appear; for one thing, there was this ‘Guide to Conversation,’ but there were limits even to the regions to which this Guide led them, for they both agreed that it did not bring them even to the vestibule of Criminal Conversation, which is a very important point to consider in connection with the history of these meetings at Solari’s.”  [Roars of laughter.]

*  *  *  *  *  *  *  *  *  *  *  *

Mr. Choate.  “During the period of your engagement from early in February down to the time of going to Poughkeepsie, did you ever, while with Mr. del Valle, fall in with any of his friends or acquaintances?”

Miss Martinez.  “I did, on several occasions.” 

Mr. Choate.  “Were you introduced?”

Miss Martinez.  “No, but on one occasion some of his friends were at the matinee.”[11]

Mr. Choate.  “Were you introduced to them there, and if so, who were they?”

Miss Martinez.  “I was not.” 

Mr. Choate.  “During the period of this engagement, as you say, to you, did he introduce you at all to anybody?”

Miss Martinez.  “During the period of our engagement?”

Mr. Choate.  “Yes.” 

Miss Martinez.  “No, I think not.” 

Mr. Choate.  “Then he certainly did not introduce you to anybody as his intended wife?”

Miss Martinez.  “He did not.  I was not introduced to anybody.” 

Mr. Choate.  “When you were at Poughkeepsie did any person come to the house to make a visit?”

Miss Martinez.  “They did.” 

Mr. Choate.  “Were you introduced to them?”

Miss Martinez.  “I was.” 

Mr. Choate.  “By whom?”

Miss Martinez.  “By Mr. del Valle.” 

Mr. Choate.  “How?”

Miss Martinez.  “As the instructress of his children, or governess, or something of that kind.” 

Mr. Choate.  “Never in all that time did he introduce you to anybody as his intended wife?”

Miss Martinez.  “No, he did not wish anybody to know it, he said.” 

Mr. Choate.  “When did he say that?”

Miss Martinez.  “He told me so when he expected Mrs. Quackenbos’ visit before she arrived.” 

Mr. Choate.  “That was some three months after your engagement?”

Miss Martinez.  “It was.” 

Mr. Choate.  “He did not intimate for the first three months a desire that nobody should know, did he?”

Miss Martinez.  “He never said a word to me about any one’s knowing anything about it.” 

Mr. Choate.  “And if there was any concealment, it was not on his part?”

Miss Martinez.  “It was not, nor on my part either.” 

Mr. Choate.  “Nor his desire?”

Miss Martinez.  “Nor on my part either.” 

This gave Mr. Choate an opportunity for this final shaft at the plaintiff in his summing up:

“You see, gentlemen, what an immense advantage it would be for her, for this family, if they could make this ‘consolidated Virginia,’ in the form of my client, their own.  They had no possible means of support; he hove in sight, a craft laden, as they supposed, with treasure for themselves.  If there had been this engagement of marriage, the world would have heard of it.  I don’t mean the World newspaper it hears of everything but all the world that surrounds the Henriques and Martinez family.  The news would have spread that they had captured a prize and brought it into court for condemnation!”

After deliberating for twenty-six hours the jury returned a verdict in favor of the plaintiff, and assessed the damages at $50. 

Continue to the next chapter in "The Art of Cross-Examination"


[1] When Mr. Choate retired from practice his court records had become so voluminous that many of them were destroyed, including all record of this trial.  Both of the court stenographers who reported the trial have since died.  Mr. Beach’s recollection of the case had died with him and all his notes had likewise been destroyed.  It was by the merest accident that a full transcript of the stenographic minutes of the trial was discovered in the possession of a former friend and legal representative of the defendant.

[2] “DEAR FRIEND: I believe I promised to write and tell you my secret.  I will now do so.  When I was nine years of age my father died.  My mother married my uncle, who is now my father.  To make a long story short, papa loves me, and has done everything in his power to rob me of what is dearer to me than my life, my honor.  And ever since I was a little child he has annoyed me with infamous propositions and does so still.  You can easily imagine how unhappy and miserable he made me, for I don’t love him the way he wishes me to, and I cannot give him what he wants, for I would sooner part with my life.  I have only God to thank for my unsullied honor.  He has watched over me in all my troubles, for oh, my dear friend, I have had so many, many trials! But it is God’s will and I always tried to be a good girl, and now you know my secret, my heart feels light.  I now leave you, wishing you all my sincere good wishes, and with many kisses to the dear little girls, I remain your friend,

                                                                                                                                              “Eugénie.

“N.B.  I will meet you on Saturday at 1 o’clock, corner of Twenty-eighth Street and Broadway.” 

[3] This is an illustration of a practice recommended in a former chapter, of asking questions upon the cross-examination which you know the witness will deny, but which will acquaint the jury with the nature of the defence and serve to keep up their interest in the examination. 

[4] Mr. Choate took as one theme for his summing up: “The woman who possesses an alias in the big cities of the world.” 

[5] The jury remained locked up for twenty-six hours unable to agree upon a verdict, several of them voting for large damages.

[6] Mr. Choate cross-examined the plaintiff at length on this part of the case and in his summing up exclaimed, “Well, outlandish foreigners have done all sorts of things, and men have various ways of looking at the same thing, but here is a point and here is a question at which I think there are no two ways of looking, and that is that it is contrary to the common instincts of mankind, and a libel upon the common instincts of woman, that when a betrothal has taken place between a fair and unsophisticated virgin and a man of any description, that in the interval between the betrothal and the wedding ceremony, he should take her to his house and she should consent to go upon a salary of $100 a month, to serve in the capacity of a housekeeper, I leave the argument upon the point with you.”

[7] Mr. Choate, in his argument to the jury, said: “They went to her room on two separate occasions and found her there with Mr. Hammond with the door locked, Mr. Hammond sitting on the bed.  This might have been explained had she not already said in her cross-examination that she did not know Mr. Hammond.  Now how do they meet it?”

[8] All through the discussion of the plaintiff’s testimony, Mr. Choate kept exclaiming to the jury in his final argument, “What sort of an engaged young lady is this?”

[9] Mr. Choate had in his hand at the time of this examination a letter written by Adele, the plaintiffs sister, who had just left Poughkeepsie, where she had been making a visit, and in which she referred to her sister as being “as happy as a queen.”  This letter was later offered in evidence.

[10] The student’s attention is directed to this extremely clever use, in cross-examination, of a letter which was wholly inconsistent with the story of her stay at Poughkeepsie, which the plaintiff had already sworn to.

[11] When speaking of this phase of the case to the jury, Mr. Choate said, “I will say this, that where there is a betrothal, the parties do give some symptoms of it sooner or later.  You cannot prevent their showing it, and there is no suggestion of evidence that anybody saw these parties together acting towards each other as though they were engaged.” 

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