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Madge's Dying Declaration: Testimony Concerning the Declaration (Excerpts)

Attorney Asa Smith, key prosecution witness

        Prosecution Witness, Attorney Asa Smith  (cross-examination)

[Remy produced the dying declaration and offered it to the court as exhibit number one for the prosecution. Inman then began his cross-examination.]

Inman: Now, you say that from day to day, from March 17 up to March 28, you went out to see and you talked with Madge Ober­holtzer?

Smith:  Yes, sir.

Inman: At various times?

Smith: Yes, sir.

Inman: And you say on various times she told you parts of the story?

Smith: Yes, sir.

Inman: And you kept it in memory?

Smith: Yes, sir.

Inman: And when the time came for you to piece it out and write it out and make notes of it and dictate it to the typewriters, to the stenographer, you dictated what you say, I believe, was the substance of what she told you from your memory, is that right?

Smith: No, I didn't say that.

Inman: Do you recall saying to Mr. Remy a few minutes ago, 'I wrote the substance of what she said at my office?'

Smith: Yes.

Inman: From my memory?

Smith: I did.

Inman: You said that?

Smith: Yes. sir.

Inman: You wrote the first draft of this statement mentioned about three or four days before the 28th of March, did you?

Smith:  No, sir.

Inman: You didn't? Do you recall saying to Mr. Remy just a few minutes ago, this: 'I wrote it three or four days before the 28th of March'?...

Inman: So, on the 26th of March you dictated the statement first to the stenographer from the notes which you had prepared and from the notes which Miss Ermina Moore had prepared, is that right?

Smith: No sir, that is not right.

Inman: What is it?

Smith: "From the notes which Miss Ermina Moore had prepared and which I had prepared I wrote in longhand-in her presence and in the presence of Mr. Dean-the statement, and from what I had then written in longhand, I dictated to the stenographer.

Inman: How many pages of the longhand were there as you first wrote it out with your hand?

Smith: I don't remember that.

Inman: Was it written in pencil or ink?

Smith: Pencil.

Inman: Pencil?

Smith: Yes.

Inman: Was there anybody present when you wrote that out?

Smith: Now you are referring to the very first time?

Inman: Yes, the longhand copy?

          Smith: Well, do you mean the copy of the statement I wrote on o thhe 26th, or the notes I wrote before?

          Inman: No, you said a while ago you first took the combination and wrote out the statement in longhand, now that is the only thing I am inquiring about.

Smith: Oh, the question is, how many pages?

Inman: Yes.

Smith: Well, I don't remember....

          Inman: I will ask you if you did not go to the office of Mr. Stephenson In the Kresge Building and demand that he pay $100,000 to settle the matter?

          Smith: I did not....               

          Inman:  [Did you demand $100,000 from Stephenson] and did he reply, "I have been blackmailed by experts, and amateurs can't get away with it."?

          Smith:  I did not.

          Prosecutor Ralph Kane: This is nothing but a piece of pettifogging! I move that it be stricken from the record!  [Overruled, because question already answered.]

          Inman: You said awhile ago that you had a notary, who was that?

          Smith:  I don't know her name, but she was not present.

          Inman: Well, what part did she do?

Smith: After that statement was signed, the notary was called up and she acknowledged her signature to the affidavit which was prepared from a copy of that [the dying declaration], had been prepared.

           Inman: She [the notary] acknowledged her signature to the affidavit?

Smith: Yes, sir.

Inman: Where is that affidavit?

Smith:  I don't know.

Inman: Do you know what became of it?

Smith:  I turned It over to the state's attorney.

Inman: When?

          Smith: Oh when I turned that [dying declaration] I over, I think it was.

          Inman: "Did the notary public take the acknowledgment of the sig­nature of Madge Oberholtzer to this statement?

Smith:  No. sir.

Inman: Why didn't you have her do that?

          [Remy objected and Judge Sparks sus­tained the objection.]

Inman: You don't know her [the notary's] name?

Smith:  No, sir.

Inman: Where did you get her?

Smith:  She was friend of Miss Ermina Moore's.

          Inman: How much time elapsed between the signing of this docu­ment [the dying declaration] and the signing of the affidavit?

Smith:  When she [Madge] signed that document, some one, I don’t know whether I stepped to the door and called down stairs to the notary, and she came up and came in   and she signed the-

Inman: Who had brought the notary?

Smith: I had.

Inman: You had?

Smith: Yes. Sir.

Inman: Did you drive out and take her in your car?

Smith: I did.

          [Inman asked, "Mr. Remy, will you be willing to let us see the affidavit?"]

          Remy: I have not got it with me. It is in Indianapolis.

          Inman: If you don't mind, will you bring it up?

          Judge Sparks: The affidavit, I don't think, is proper testimony....

         Inman: "She [Madge] wrote her name there without anybody holding her hand, I believe you said?

          Smith: That is correct.

          Inman: "I notice just below her signature and down to the left, there are two words and two sets of figures as follows: 'Dated March 28, 1925' wrote?

Smith: Yes.

Inman: Who wrote that?

Smith: I did.

Inman: When did you write that?

          Smith: As I remember now, I wrote that after I got back to the office, I am not sure, I told you in the bail bond hearing I was not sure, and I don't know, I don't remember.

          Inman: I beg pardon. I am not inquiring about the bail hearing now; you think you wrote these words when you got back to the office?

          Smith:  I think that is it.

          Inman: Did you write those words with the same pen that Miss Oberholtzer used to sign her name?

Smith: I don't remember.

Inman: Do you remember whether you used a fountain pen?

Smith: Yes.

Inman: And whose pen was it?

Smith: I said I don't remember.

Inman:  You don't remember?

No, sir, I don't.

         Inman: Now, Mr. Smith, are you sure, sir, that Madge Oberholtzer wrote that name [on the affidavit]?

Smith: Yes, sir, she did.

Inman: I will ask you if this question was not asked you when you testified under oath on the bail hearing in this case, and if you didn't make this answer: 'Who dictated these  words to the stenographer?' [Referring to the statement.] Answer: 'Mr. Dean and myself.'?

Smith: Yes, sir, I said that. It was not right.

         Assistant prosecutor Ralph Kane: What was that?

          Smith: I said I made that statement, it was not right.  I mean he was present with me.

 [Inman said he had no further questions, and Smith stepped down from the witness stand.  At this point in the trial, Judge Sparks hears arguments from both sides concerning the admissibility of the dying declaration.  Floyd Christian argued that the dying declaration should not be admitted as evidence; "If this was suicide, then it can't be homi­cide, for the two are diametrically opposed," he said. Christian also contended that Madge had taken the poison voluntarily and that under Indiana caselaw, suicide was a complete defense against the charge of murder....After argument on the question, Judge Sparks ruled that "there is no doubt but that the dying declaration should go in" as. He held, however, that parts of it might be deleted before it would be read to the jury and said that he would give a ruling the next day if he decided any parts should be stricken....The judge decided the next day to allow the statement almost in its entirety, excluding sections that reported Madge's conversations with persons other than the defendants. Follow­ing the judge's ruling, Will Remy read the dying declaration to the jurors.]


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