Madge's Dying
Declaration:
Testimony Concerning the Declaration (Excerpts)
[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? 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: 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?
Inman: Do
you know what became of it?
Inman: When?
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?
Inman: Who had
brought the notary?
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?
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?
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?
Inman: And whose pen
was it?
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: 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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