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The Art of Cross-Examination

by Francis H. Wellman


On December 15, 1900, there appeared in the New York World an article written by Thomas J.  Minnock, a newspaper reporter, in which he claimed to have been an eye-witness to the shocking brutality of certain nurses in attendance at the Insane Pavilion of Bellevue Hospital, which resulted in the death, by strangulation, of one of its inmates, a Frenchman named Hilliard.  This Frenchman had arrived at the hospital at about four o’clock in the afternoon of Tuesday, December u.  He was suffering from alcoholic mania, but was apparently otherwise in normal physical condition.  Twenty-six hours later, or on Wednesday, December 12, he died.  An autopsy was performed which disclosed several bruises on the forehead, arm, hand, and shoulder, three broken ribs and a broken hyoid bone in the neck (which supports the tongue), and a suffusion of blood or haemorrhage on both sides of the windpipe.  The coroner’s physician reported the cause of death, as shown by the autopsy, to be strangulation.  The newspaper reporter, Minnock, claimed to have been in Bellevue at the time, feigning insanity for newspaper purposes; and upon his discharge from the hospital he stated that he had seen the Frenchman strangled to death by the nurses in charge of the Pavilion by the use of a sheet tightly twisted around the insane man’s neck.  The language used in the newspaper articles written by Minnock to describe the occurrences preceding the Frenchman’s death was as follows:  ---

“At supper time on Wednesday evening, when the Frenchman, Mr. Milliard, refused to eat his supper, the nurse, Davis, started for him.  Milliard ran around the table, and the other two nurses, Dean and Marshall, headed him off and held him; they forced him down on a bench, Davis called for a sheet, one of the other two, I do not remember which, brought it, and Davis drew it around Milliard’s neck like a rope.  Dean was behind the bench on which Milliard had been pulled back; he gathered up the loose ends of the sheet and pulled the linen tight around Milliard’s neck, then he began to twist the folds in his hand.  I was horrified.  I have read of the garrote; I have seen pictures of how persons are executed in Spanish countries; I realized that here, before my eyes, a strangle was going to be performed.  Davis twisted the ends of the sheet in his hands, round and round; he placed his knee against Milliard’s back and exercised all his force.  The dying man’s eyes began to bulge from their sockets; it made me sick, but I looked on as if fascinated.  Milliard’s hands clutched frantically at the coils around his neck.  ‘Keep his hands down, can’t you?’ shouted Davis in a rage. 

Dean and Marshall seized the helpless man’s hands; slowly, remorselessly, Davis kept on twisting the sheet.  Milliard began to get black in the face; his tongue was hanging out.  Marshall got frightened.  ‘Let up, he is getting black! ‘he said to Davis.  Davis let out a couple of twists of the sheet, but did not seem to like to do it.  At last Milliard got a little breath, just a little.  The sheet was still brought tight about the neck.  * Now will you eat?’ cried Davis.  ‘No,’ gasped the insane man.  Davis was furious.  ‘Well, I will make you eat; I will choke you until you do eat,’ he shouted, and he began to twist the sheet again.  Milliard’s head would have fallen upon his breast but for the fact that Davis was holding it up.  He began to get black in the face again.  A second time they got frightened, and Davis eased up on the string.  He untwisted the sheet, but still kept a firm grasp on the folds.  It took Milliard some time to come to.  When he did at last, Davis again asked him if he would eat.  Milliard had just breath enough to whisper faintly, ‘No.’ I thought the man was dying then.  Davis twisted up the sheet again, and cried, ‘Well, I will make him eat or I will choke him to death.’ He twisted and twisted until I thought he would break the man’s neck.  Milliard was unconscious at last.  Davis jerked the man to the floor and kneeled on him, but still had the strangle hold with his knee giving him additional purchase.  He twisted the sheet until his own fingers were sore, then the three nurses dragged the limp body to the bath-room, heaved him into the tub with his clothes on, and turned the cold water on him.  He was dead by this time, I believe.  He was strangled to death, and the finishing touches were put on when they had him on the floor.  No big, strong, healthy man could have lived under that awful strangling.  Hilliard was weak and feeble.” 

The above article appeared in the morning Journal, a few days after the original publication in the New York World.  The other local papers immediately took up the story, and it is easy to imagine the pitch to which the public excitement and indignation were aroused.  The three nurses in charge of the pavilion at the time of Hilliard’s death were immediately indicted for manslaughter, and the head nurse, Jesse R.  Davis, was promptly put on trial in the Court of General Sessions, before Mr. Justice Cowing and a “special jury.”  The trial lasted three weeks, and after deliberating five hours upon their verdict, the jury acquitted the prisoner. 

The intense interest taken in the case, not only by the public, but by the medical profession, was increased by the fact that for the first time in the criminal courts of this country two inmates of the insane pavilion, themselves admittedly insane, were called by the prosecution, and sworn and accepted by the court as witnesses against the prisoner.  One of these witnesses was suffering from a form of insanity known as paranoia, and the other from general paresis.  With the exception of the two insane witnesses and the medical testimony founded upon the autopsy, there was no direct evidence on which to convict the prisoner but the statement of the newspaper reporter, Minnock.  He was the one sane witness called on behalf of the prosecution, who was an eye-witness to the occurrence, and the issues in the case gradually narrowed down to a question of veracity between the newspaper reporter and the accused prisoner, the testimony of each of these witnesses being corroborated or contradicted on one side or the other by various other witnesses. 

If Minnock’s testimony was credited by the jury, the prisoner’s contradiction would naturally have no effect whatever, and the public prejudice, indignation, and excitement ran so high that the jury were only too ready and willing to accept the newspaper account of the transaction.  The cross-examination of Minnock, therefore, became of the utmost importance.  It was essential that the effect of his testimony should be broken, and counsel having his cross-examination in charge had made the most elaborate preparations for the task.  Extracts from the cross-examination are here given as illustrations of many of the suggestions which have been discussed in previous chapters. 

The district attorney in charge of the prosecution was Franklin Pierce, Esq.  In his opening address to the jury he stated that he “did not believe that ever in the history of the state, or indeed of the country, had a jury been called upon to decide such an important case as the one on trial.”  He continued: “There is no fiction --- no ‘Hard Cash’ --- in this case.  The facts here surpass anything that fiction has ever produced.  The witnesses will describe the most terrible treatment that was ever given to an insane man.  No writer of fiction could have put them in a book.  They would appear so improbable and monstrous that his manuscript would have been rejected as soon as offered to a publisher.” 

When the reporter, Minnock, stepped to the witness stand, the court room was crowded, and yet so intense was the excitement that every word the witness uttered could be distinctly heard by everybody present.  He gave his evidence in chief clearly and calmly, and with no apparent motive but to narrate correctly the details of the crime he had seen committed.  Any one unaware of his career would have regarded him as an unusually clever and apparently honest and courageous man with a keen memory and with just the slightest touch of gratification at the important position he was holding in the public eye in consequence of his having unearthed the atrocities perpetrated in our public hospitals. 

His direct evidence was practically a repetition of his newspaper article already referred to, only much more in detail.  After questioning him for about an hour, the district attorney sat down with a confident “He is your witness, if you wish to cross-examine him.” 

No one who has never experienced it can have the slightest appreciation of the nervous excitement attendant on being called upon to cross-examine the chief witness in a case involving the life or liberty of a human being.  If Minnock withstood the cross-examination, the nurse Davis, apparently a most worthy and refined young man who had just graduated from the Mills Training School for Nurses, and about to be married to a most estimable young lady, would have to spend at least the next twenty years of his life at hard labor in state prison. 

The first fifteen minutes of the cross-examination were devoted to showing that the witness was a thoroughly educated man, twenty-five years of age, a graduate of Saint John’s College, Fordham, New York, the Sacred Heart Academy, the Francis Xavier, the De Lasalle Institution, and had travelled extensively in Europe and America.  The cross-examination then proceeded:  ---

Counsel (amiably).  “Mr. Minnock, I believe you have written the story of your life and published it in the Bridgeport Sunday Herald as recently as last December?  I hold the original article in my hand.” 

Witness.  “It was not the story of my life.” 

Counsel.   “The article is signed by you and purports to be a history of your life.” 

Witness.  “It is an imaginary story dealing with hypnotism.  Fiction partly, but it dealt with facts.” 

Counsel.   “That is, you mean to say you mixed fiction and fact in the history of your life?’

Witness.  “Yes, sir.” 

Counsel.   “In other words, you dressed up facts with fiction to make them more interesting?”

Witness.  “Precisely.” 

Counsel.   “When in this article you wrote that at the age of twelve you ran away with a circus, was that dressed up?”

Witness.  “Yes, sir.” 

Counsel.   “It was not true?” 

Witness.  “No, sir.” 

Counsel.   “When you said that you continued with this circus for over a year, and went with it to Belgium, there was a particle of truth in that because you did, as a matter of fact, go to Belgium, but not with the circus as a public clown; is that the idea?”

Witness.  “Yes, sir.” 

Counsel.   “So there was some little truth mixed in at this point with the other matter?”

Witness.  “Yes, sir.” 

Counsel.   “When you wrote that you were introduced in Belgium, at the Hospital General, to Charcot, the celebrated Parisian hypnotist, was there some truth in that?” 

Witness.  “No, sir.” 

Counsel.   “You knew that Charcot was one of the originators of hypnotism in France, didn’t you?”

Witness.  “I knew that he was one of the original hypnotists.” 

Counsel.   “How did you come to state in the newspaper history of your life that you were introduced to Charcot at the Hospital General at Paris if that was not true?”

Witness.  “While there I met a Charcot.” 

Counsel.   “Oh, I see.” 

Witness.  “But not the original Charcot.” 

Counsel.   “Which Charcot did you meet?”

Witness.  “A woman.  She was a lady assuming the name of Charcot, claiming to be Madame Charcot.” 

Counsel.   “So that when you wrote in this article that you had met Charcot, you intended people to understand that it was the celebrated Professor Charcot, and it was partly true, because there was a woman by the name of Charcot whom you had really met?”

Witness.  “Precisely.” 

Counsel (quietly).  “That is to say, there was some truth in it?” 

Witness.  “Yes, sir.” 

Counsel.   “When in that article you said that Charcot taught you to stand pain, was there any truth in that?”

Witness.  “No.” 

Counsel.   “Did you as a matter of fact learn to stand pain?”

Witness.  “No.” 

Counsel.   “When you said in this article that Charcot began by sticking pins and knives into you little by little, so as to accustom you to standing pain, was that all fiction?” 

Witness.  “Yes, sir.” 

Counsel.   “When you wrote that Charcot taught you to reduce your respirations to two a minute, so as to make your body insensible to pain, was that fiction?”

Witness.  “Purely imagination.” 

Court (interrupting).  “Counselor, I will not allow you to go further in this line of inquiry.  The witness himself says his article was almost entirely fiction, some of it founded upon fact.  I will allow you the greatest latitude in a proper way, but not in this direction.” 

Counsel.   “Your Honor does not catch the point.” 

Court.  “I do not think I do.” 

Counsel.   “This prosecution was started by a newspaper article written by the witness, and published in the morning Journal.  It is the claim of the defence that the newspaper article was a mixture of fact and fiction, mostly fiction.  The witness has already admitted that the history of his life, published but a few months ago, and written and signed by himself and sold as a history of his life, was a mixture of fact and fiction, mostly fiction.  Would it not be instructive to the jury to learn from the lips of the witness himself how far he dressed up the pretended history of his own life, that they may draw from it some inference as to how far he has likewise dressed up the article which was the origin of this prosecution?”

Court.  “I shall grant you the greatest latitude in examination of the witness in regard to the newspaper article which he published in regard to this case, but I exclude all questions relating to the witness’s newspaper history of his own life.” 

Counsel.   “Did you not have yourself photographed and published in the newspapers in connection with the history of your life, with your mouth and lips and ears sewed up, while you were insensible to pain?”

Court.  “Question excluded.” 

Counsel.   “Did you not publish a picture of yourself in connection with the pretended history of your life, representing yourself upon a cross, spiked hand and foot, but insensible to pain, in consequence of the instruction you had received from Professor Charcot?”

Court.  “Question excluded.” 

Counsel.   “I offer these pictures and articles in evidence.” 

Court (roughly).  “Excluded.” 

Counsel.   “In the article you published in the New York Journal, wherein you described the occurrences in the present case, which you have just now related upon the witness-stand, did you there have yourself represented as in the position of the insane patient, with a sheet twisted around your neck, and held by the hands of the hospital nurse who was strangling you to death?”

Witness.  “I wrote the article, but I did not pose for the picture.  The picture was posed for by some one else who looked like me.” 

Counsel (stepping up to the witness and handing him the newspaper article).  “Are not these words under your picture, ‘This is how I saw it done, Thomas J. Minnock,’ a facsimile of your handwriting?”

Witness.  “Yes, sir, it is my handwriting.” 

Counsel.   “Referring to the history of your life again how many imaginary articles on the subject have you written for the newspapers throughout the country?”

Witness.  “One.” 

Counsel.   “You have put several articles in New York papers, have you not?”

Witness.  “It was only the original story.  It has since been redressed, that’s all.” 

Counsel.   “Each time you signed the article and sold it to the newspaper for money, did you not?”

Court.  “Excluded.” 

Counsel (with a sudden change of manner, and in a loud voice, turning to the audience),, “Is the chief of police of Bridgeport, Connecticut, in the court room?  (Turning to the witness.)  Mr. Minnock, do you know this gentleman?”

Witness.  “I do.” 

Counsel.   “Tell the jury when you first made his acquaintance.” 

Witness.  “It was when I was arrested in the Atlantic Hotel, in Bridgeport, Connecticut, with my wife.” 

Counsel.   “Was she your wife at the time?”

Witness.  “Yes, sir.” 

Counsel.   “She was but sixteen years old?”

Witness.  “Seventeen, I guess.” 

Counsel.   “You were arrested on the ground that you were trying to drug this sixteen-year-old girl and kidnap her to New York.  Do you deny it?”

Witness (doggedly).  “I was arrested.” 

Counsel (sharply).  “You know the cause of the arrest to be as I have stated?  Answer yes or no!”

Witness (hesitating).  “Yes, sir.” 

Counsel.   “You were permitted by the prosecuting attorney, F.  A.  Bartlett, to be discharged without trial on your promise to leave the state, were you not?”

Witness.  “I don’t remember anything of that.” 

Counsel.   “Do you deny it?”

Witness.  “I do.” 

Counsel.   “Did you have another young man with you upon that occasion?”

Witness.  “I did.  A college chum.” 

Counsel.   “Was he also married to this sixteen-year old girl?”

Witness (no answer). 

Counsel (pointedly at witness).  “Was he married to this girl also?”

Witness.  “Why, no.” 

Counsel.   “You say you were married to her.  Give me the date of your marriage.” 

Witness (hesitating).  “I don’t remember the date.” 

Counsel.   “How many years ago was it?”

Witness.  “I don’t remember.” 

Counsel.   “How many years ago was it?”

Witness.  “I couldn’t say.” 

Counsel.   “What is your best memory as to how many years ago it was?”

Witness.  “I can’t recollect.” 

Counsel.   “Try to recollect about when you were married.” 

Witness.  “I was married twice, civil marriage and church marriage.” 

Counsel.   “I am talking about Miss Sadie Cook.  When were you married to Sadie Cook, and where is the marriage recorded?”

Witness.  “I tell you I don’t remember.” 

Counsel.   “Try.” 

Witness.  “It might be five or six or seven or ten years ago.” 

Counsel.   “Then you cannot tell within five years of the time when you were married, and you are now only twenty-five years old?”

Witness.  “I cannot.” 

Counsel.   “Were you married at fifteen years of age?”

Witness.  “I don’t think I was.” 

Counsel.   “You know, do you not, that your marriage was several years after this arrest in Bridgeport that I have been speaking to you about?”

Witness.  “I know nothing of the kind.” 

Counsel (resolutely).  “Do you deny it?”

Witness (hesitating).  “Well, no, I do not deny it.” 

Counsel.   “I hand you now what purports to be the certificate of your marriage, three years ago.  Is the date correct?”

Witness.  “I never saw it before.” 

Counsel.   “Does the certificate correctly state the time and place and circumstances of your marriage?”

Witness.  “I refuse to answer the question on the ground that it would incriminate my wife.” 

The theory on which the defence was being made was that the witness, Minnock, had manufactured the story which he had printed in the paper, and later swore to before the grand jury and at the trial.  The effort in his cross-examination was to show that he was the kind of man who would manufacture such a story and sell it to the newspapers, and afterward, when compelled to do so, swear to it in court. 

Counsel next called the witness’s attention to many facts tending to show that he had been an eye-witness to adultery in divorce cases, and on both sides of them, first on one side, then on the other, in the same case, and that he had been at one time a private detective.  Men whom he had robbed and blackmailed and cheated at cards were called from the audience, one after another, and he was confronted with questions referring to these charges, all of which he denied in the presence of his accusers.  The presiding judge having stated to the counsel in the hearing of the witness that although he allowed the witness to be brought face to face with his alleged accusers, yet he would allow no contradictions of the witness on these collateral matters.  Minnock’s former defiant demeanor immediately returned. 

The next interrogatories put to the witness developed the fact that, feigning insanity, he had allowed himself to be taken to Bellevue with the hope of being transferred to Ward’s Island, with the intention of finally being discharged as cured, and then writing sensational newspaper articles regarding what he had seen while an inmate of the public insane asylums; that in Bellevue Hospital he had been detected as a malingerer by one of the attending physicians, Dr.  Fitch, and had been taken before a police magistrate where he had stated in open court that he had found everything in Bellevue “far better than he had expected to find it,” and that he had “no complaint to make and nothing to criticise.” 

The witness’s mind was then taken from the main subject by questions concerning the various conversations had with the different nurses while in the asylum, all of which conversations he denied.  The interrogatories were put in such a way as to admit of a “yes “or “no “answer only.  Gradually coming nearer to the point desired to be made, the following questions were asked:  ---

Counsel.   “Did the nurse Gordon ask you why you were willing to submit to confinement as an insane patient, and did you reply that you were a newspaper man and under contract with a Sunday paper to write up the methods of the asylum, but that the paper had repudiated the contract?”

Witness.  “No.” 

Counsel.   “Or words to that effect?”

Witness.  “No.” 

Counsel.   “I am referring to a time subsequent to your discharge from the asylum, and after you had returned to take away your belongings.  Did you, at that time, tell the nurse Gordon that you had expected to be able to write an article for which you could get $140?” 

Witness.  “I did not.” 

Counsel.   “Did the nurse say to you, ‘You got fooled this time, didn’t you?’  And did you reply, ‘Yes, but I will try to write up something and see if I can’t get square with them! ‘

Witness.  “I have no memory of it.” 

Counsel.   “Or words to that effect?”

Witness.  “I did not.” 

All that preceded had served only as a veiled introduction to the next important question. 

Counsel (quietly).  “At that time, as a matter of fact, did you know anything you could write about when you got back to the Herald office?”

Witness“I knew there was nothing to write.”

Counsel.   “Did you know at that time, or have any idea, what you would write when you got out?”

Witness.  “Did I at that time know?  Why, I knew there was nothing to write.”

Counsel (walking forward and pointing excitedly at the witness).  “Although you had seen a man choked to death with a sheet on Wednesday night, you knew on Friday morning that there was nothing you could write about?”

Witness (hesitating).  “I didn’t know they had killed the man.” 

Counsel.   “Although you had seen the patient fall unconscious several times to the floor after having been choked with the sheet twisted around his neck, you knew there was nothing to write about?”

Witness.  “I knew it was my duty to go and see the charity commissioner and tell him about that.” 

Counsel.   “But you were a newspaper reporter in the asylum, for the purpose of writing up an article.  Do you want to take back what you said a moment ago --- that you knew there was nothing to write about?”

Witness.  “Certainly not.  I did not know the man was dead.” 

Counsel.   “Did you not testify that the morning after you had seen the patient choked into unconsciousness, you heard the nurse call up the morgue to inquire if the autopsy had been made?”

Witness (sheepishly.) “Well, the story that I had the contract for with the Herald was cancelled.” 

Counsel.   “Is it not a fact that within four hours of the time you were finally discharged from the hospital on Saturday afternoon, you read the newspaper account of the autopsy, and then immediately wrote your story of having seen this patient strangled to death and offered it for sale to the New York World?’

Witness.  “That is right; yes, sir.” 

Counsel.   “You say you knew it was your duty to go to the charity commissioner and tell him what you had seen.  Did you go to him?”

Witness.  “No, not after I found out through reading the autopsy that the man was killed.” 

Counsel.   “Instead, you went to the World, and offered them the story in which you describe the way Milliard was killed?”

Witness.  “Yes.” 

Counsel.   “And you did this within three or four hours of the time you read the newspaper account of the autopsy?’

Witness.  “Yes.” 

Counsel.   “The editors of the World refused your story unless you would put it in the form of an affidavit, did they not?”

Witness.  “Yes.” 

Counsel.   “Did you put it in the form of an affidavit?” 

Witness.  “Yes.” 

Counsel.   “And that was the very night that you were discharged from the hospital?”

Witness.  “Yes.” 

Counsel.   “Every occurrence was then fresh in your mind, was it not?”

Witness (hesitating).  “What?” 

Counsel.   “Were the occurrences of the hospital fresh in your mind at the time?”

Witness.  “Well, not any fresher then than they are now.” 

Counsel.   “As fresh as now?”

Witness.  “Yes, sir.” 

Counsel (pausing, looking among his papers, selecting one and walking up to the witness, handing it to him).  “Take this affidavit, made that Friday night, and sold to the World; show me where there is a word in it about Davis having strangled the Frenchman with a sheet, the way you have described it here to-day to this jury.” 

Witness (refusing paper).  “No, I don’t think that it is there.  It is not necessary for me to look it over.” 

Counsel (shouting).  “Don’t think!  You know that it is not there, do you not?”

Witness (nervously).  “Yes, sir; it is not there.” 

Counsel.   “Had you forgotten it when you made that affidavit?”

Witness.  “Yes, sir.” 

Counsel (loudly).  “You had forgotten it, although only three days before you had seen a man strangled in your presence, with a sheet twisted around his throat, and had seen him fall lifeless upon the floor; you had forgotten it when you described the incident and made the affidavit about it to the World?” 

Witness (hesitating).  “I made two affidavits.  I believe that is in the second affidavit.” 

Counsel.   “Answer my questions, Mr. Minnock.  Is there any doubt that you had forgotten it when you made the first affidavit to the World?”

Witness.  “I had forgotten it.” 

Counsel (abruptly).  “When did you recollect?”

Witness.  “I recollected it when I made the second affidavit before the coroner.” 

Counsel.   “And when did you make that?”

Witness.  “It was a few days afterward, probably the next day or two.” 

Counsel (looking among his papers, and again walking up to the witness).  “Please take the coroner’s affidavit and point out to the jury where there is a word about a sheet having been used to strangle this man.” 

Witness (refusing paper).  “Well, it may not be there.” 

Counsel.   “Is it there?”

Witness (still refusing paper).  “I don’t know.” 

Counsel.   “Read it, read it carefully.” 

Witness (reading).  “I don’t see anything about it.” 

Counsel.   “Had you forgotten it at that time as well?” 

Witness (in confusion).  “I certainly must have.” 

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

Witness.  “It escaped my memory.” 

Counsel.   “You have testified as a witness before in this case, have you not?’

Witness.  “Yes, sir.” 

Counsel.   “Before the coroner?”

Witness.  “Yes, sir.” 

Counsel.   “But this sheet incident escaped your memory then?”

Witness.  “It did not”

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

Witness.  “Yes, sir; that is correct.” 

Counsel.   “Why did you not give an account of the sheet incident on the first day of your testimony?’

Witness.  “Well, it escaped my memory; I forgot it.”

Counsel.   “Do you recollect, before beginning your testimony before the coroner, you asked to look at the affidavit that you had made for the World?”

Witness.  “Yes, I had been sick, and I wanted to refresh my memory.” 

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

Witness.  “No, it had not faded.  I merely wanted to refresh my recollection.” 

Counsel.   “Was it not rather that you had made up the story in your affidavit, and you wanted the affidavit to refresh your recollection as to the story you had manufactured?”

Witness.  “No, sir; that is not true.” 

The purpose of these questions, and the use made of the answers upon the argument, is shown by the following extract from the summing up:  ---

“My point is this, gentlemen of the jury, and it is an unanswerable one in my judgment, Mr. District Attorney: If Minnock, fresh from the asylum, forgot this sheet incident when he went to sell his first newspaper article to the World; if he also forgot it when he went to the coroner two days afterward to make his second affidavit; if he still forgot it two weeks later when, at the inquest, he testified for two hours, without mentioning it, and only first recollected it when he was recalled two days afterward, then there is but one inference to be drawn, and that is, that he never saw it, because he could not forget it if he had ever seen it!  And the important feature is this: he was a newspaper reporter; he was there, as the district attorney says, ‘to observe what was going on.’ He says that he stood by in that part of the room, pretending to take away the dishes in order to see what was going on.  He was sane, the only sane man there.  Now if he did not see it, it is because it did not take place, and if it did not take place, the insane men called here as witnesses could not have seen it.  Do you see the point?  Can you answer it?  Let me put it again.  It is not in mortal mind to believe that this man could have seen such a transaction as he describes and ever have forgotten it.  Forget it when he writes his article the night he leaves the asylum and sells it to the morning World! Forget it two days afterward when he makes a second important affidavit! He makes still another statement, and does not mention it, and even testifies at the coroner’s inquest two weeks later, and leaves it out.  Can the human mind draw any other inference from these facts than that he never saw it --- because he could not have forgotten it if he had ever seen it?  If he never saw it, it did not take place.  He was on the spot, sane, and watching everything that went on, for the very purpose of reporting it.  Now if this sheet incident did not take place, the insane men could not have seen it.  This disposes not only of Minnock, but of all the testimony in the People’s case.  In order to say by your verdict that that sheet incident took place, you have got to find something that is contrary to all human experience; that is, that this man, Minnock, having seen the horrible strangling with the sheet, as he described, could possibly have immediately forgotten it.” 

The contents of the two affidavits made to the World and the coroner were next taken up, and the witness was first asked what the occurrence really was as he now remembered it.  After his answers, his attention was called to what he said in his affidavits, and upon the differences being made apparent, he was asked whether what he then swore to, or what he now swore to, was the actual fact; and if he was now testifying from what he remembered to have seen, or if he was trying to remember the facts as he made them up in the affidavit. 

Counsel.   “What was the condition of the Frenchman at supper time?  Was he as gay and chipper as when you said that he had warmed up after he had been walking around awhile?”

Witness.  “Yes, sir.” 

Counsel.   “But in your affidavit you state that he seemed to be very feeble at supper.  Is that true?’

Witness.  “Well, yes; he did seem to be feeble.” 

Counsel.   “But you said a moment ago that he warmed up and was all right at supper time.” 

Witness.  “Oh, you just led me into that.” 

Counsel.   “Well, I won’t lead you into anything more.  Tell us how he walked to the table.” 

Witness.  “Well, slowly.” 

Counsel.   “Do you remember what you said in the affidavit?”

Witness, “I certainly do.” 

Counsel.   “What did you say?”

Witness.  “I said he walked in a feeble condition.” 

Counsel.   “Are you sure that you said anything in the affidavit about how he walked at all?”

Witness.  “I am not sure.” 

Counsel.   “The sheet incident, which you have described so graphically, occurred at what hour on Wednesday afternoon?”

Witness.  “About six o’clock.” 

Counsel.   “Previous to that time, during the afternoon, had there been any violence shown toward him?”

Witness.  “Yes; he was shoved down several times by the nurses.” 

Counsel.   “You mean they let him fall?”

Witness.  “Yes, they thought it a very funny thing to let him totter backward, and to fall down.  They then picked him up.  His knees seemed to be kind of musclebound, and he tottered back and fell, and they laughed.  This was somewhere around three o’clock in the afternoon.” 

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

Witness.  “Four or five times during the afternoon.” 

Counsel.   “And would he always fall backward?”

Witness.  “Yes, sir; he repeated the operation of tottering backward.  He would totter about five feet, and would lose his balance and would fall over backward.” 

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

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

Witness.  “Well, what I said about violence may have been omitted by the coroner’s stenographer.” 

Counsel.   “But did you swear to the answers that I have just read to you before the coroner?’

Witness.  “I may have, and I may not have.  I don’t know.” 

Counsel.   “If you swore before the coroner there was no violence, and nothing happened until Wednesday after supper, did you mean to say it?’

Witness.  “I don’t remember.” 

Counsel.   “After hearing read what you swore to at the coroner’s inquest, do you still maintain the truth of what you have sworn to at this trial, as to seeing the nurse let the patient fall backward four or five times, and pick him up and laugh at him?”

Witness.  “I certainly do.” 

Counsel.   “I again read you from the coroner’s minutes a question asked you by the coroner himself.  Question by the coroner, ‘Did you at any time while in the office or the large room of the asylum see Milliard fall or stumble?’  Answer, ‘No, sir; I never did.’ What have you to say to that?”

Witness.  “That is correct.” 

Counsel.   “Then what becomes of your statement made to the jury but fifteen minutes ago, that you saw him totter and fall backward several times?”

Witness.  “It was brought out later on before the coroner.” 

Counsel.   “Brought out later on! Let me read to you the next question put to you before the coroner.  Question, ‘Did you at any time see him try to walk or run away and fall?’  Answer, ‘No, I never saw him fall.’ What have you to say to that?’

Witness.  “Well, I must have put in about the tottering in my affidavit, and omitted it later before the coroner.” 

At the beginning of the cross-examination it had been necessary for the counsel to fight with the Court over nearly every question asked; and question after question was ruled out.  As the examination proceeded, however, the Court began to change its attitude entirely toward the witness.  The presiding judge constantly frowned on the witness, kept his eyes riveted upon him, and finally broke out at this juncture: “Let me caution you, Mr Minnock, once for all, you are here to answer counsel’s questions.  If you can’t answer them, say so; and if you can answer them, do so; and if you have no recollection, say so.” 

Witness.  “Well, your Honor, Mr. ----------- has been cross-examining me very severely about my wife, which he has no right to do.” 

Court.  “You have no right to bring that up.  He has a perfect right to cross-examine you.” 

Witness (losing his temper completely).  “That man wouldn’t dare to ask me those questions outside.  He knows that he is under the protection of the court, or I would break his neck.” 

Court.  “You are making a poor exhibit of yourself.  Answer the questions, sir.” 

Counsel.   “You don’t seem to have any memory at all about this transaction.  Are you testifying from memory as to what you saw, or making up as you go along?”

Witness (no answer). 

Counsel.   Which is it?”

Witness (doggedly).  “I am telling what I saw.” 

Counsel.   “Well, listen to this then.  You said in your affidavit: ‘The blood was all over the floor.  It was covered with Milliard’s blood, and the scrub woman came Tuesday and Wednesday morning, and washed the blood away.’ Is that right?”

Witness.  “Yes, sir.” 

Counsel.   “Why, I understood you to say that you didn’t get up Wednesday morning until noon.  How could you see the scrub woman wash the blood away?”

Witness.  “They were at the farther end of the hall.  They washed the whole pavilion.  I didn’t see them Wednesday morning; it was Tuesday morning I saw them scrubbing.” 

Counsel.   “You seem to have forgotten that Milliard, the deceased, did not arrive at the pavilion until Tuesday afternoon at four o’clock.  What have you to say to that?”

Witness.  “Well, there were other people who got beatings besides him.” 

Counsel.   “Then that is what you meant to refer to in your affidavit, when speaking of Milliard’s blood upon the floor.  You meant beatings of other people?”

Witness.  “Yes sir on Tuesday.” 

The witness was then forced to testify to minor details, which, within the knowledge of the defence, could be contradicted by a dozen disinterested witnesses.  Such, for instance, as hearing the nurse Davis call up the morgue, the morning after Milliard was killed, at least a dozen times on the telephone, and anxiously inquire what had been disclosed by the autopsy; whereas, in fact, there was no direct telephonic communication whatever between the morgue and the insane pavilion; and the morgue attendants were prepared to swear that no one had called them up concerning the Milliard autopsy, and that there were no inquiries from any source.  The witness was next made to testify affirmatively to minor facts that could be, and were afterward, contradicted by Dr.  Wildman, by Dr.  Moore, by Dr.  Fitch, by Justice Hogman, by night nurses Clancy and Gordon, by Mr. Dwyer, Mr. Hayes, Mr. Fayne, by Gleason the registrar, by Spencer the electrician, by Jackson the janitor, and by several of the state’s own witnesses who were to be called later. 

By this time the witness had begun to flounder helplessly.  He contradicted himself constantly, became red and pale by turns, hesitated before each answer, at times corrected his answers, at others was silent and made no answer at all.  At the expiration of four hours he left the witness-stand a thoroughly discredited, haggard, and wretched object.  The court ordered him to return the following day, but he never was seen again at the trial. 

A week later, his foster-mother, when called to the witness-chair by the defence, handed to the judge a letter received that morning from her son, who was in Philadelphia (which, however, was not allowed to be shown to the jury) in which he wrote that he had shaken from his feet the dust of New York forever, and would never return; that he felt he had been ruined, and would be arrested for perjury if he came back, and requested money that he might travel far into the West and commence life anew.  It was altogether the most tragic incident in the experience of the writer.

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

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