STEPHENSON v. STATE: Testimony of Defense Witnesses (Excerpts)
Nov. 4- Nov. 9, 1925

Defense attorney Eph Inman

          Testimony of Dr. Orvill Smiley

Inman: Bichloride of mercury is known to your profession as one of the most deadly poisons, is it not?

Smiley:  It is.

Inman: What Is regarded as a fatal dose?

Smiley: The lowest minimum dose to be fatal is said to be about three grains, and it ranges up from that, depending on conditions.

Inman: Suppose six tablets were dropped into a glass of water, and drunk by a person--would the absorption take place more readily because the tablets had been dissolved?

Smiley: It would...[He suggests that kidney deterioration would begin within 30 minutes.]

Inman: If a large quantity of bichloride of mercury were taken into the stomach and later vomiting occurred and the substance vomited would fall on the naked skin, such as on the chest and abdomen, would it have the effect of inflaming and corroding skin?

Smiley: If allowed to remain on the skin for thirty minutes or an hour, it would.

[Inman asked what, in the doctor's opinion, was the likely cause of death in a hyptothetical case that matched the facts of this case.]

 Smiley:  Bichloride of mercury.


          Cross-examination by Charles Cox:

          Cox:  Have you practiced in his [Stephenson's] house?

Smiley: Yes. I have seen the gentleman out there a time or two.

Cox:  [How many] cases of mercury poisoning have you treated?

Smiley:  [I have treated about thirty cases...] Some, I think were very pro­found, and some were mild; most of them died.

Cox:  And how many of the thirty of your patients got well?

Smiley: Most were vaginal cases, nearly all cases will get well if you get them early, before absorption takes place. [The "vaginal cases" refers to the fact that mercury bichloride, was sometimes used by women to abort pregnancies.]

[Kane protested that the witness had not answered the question; Judge Sparks ordered the question repeated.]

Smiley: I can't say definitely, but those that took it by the mouth, less than ten percent of them got well.

Cox: How many of them took it by the mouth?

Smiley: I don't remember.

Cox: You have no recollection of that? Have you made any record of those cases?

          Smiley: Some of them I have a record of, and some of them I do not have.

          Cox: And you have no recollection how many bichloride poisoning cases you had where they took the poison through the mouth?

Smiley:  At least twenty.

Cox: At least twenty?


Smiley: Yes.


Cox: And what percent of them got well?

Smiley: Not more than ten percent of them.

Cox: Not more than ten percent?


Smiley: Two or three.


Cox: Two or three of them got well?...


          Cox: Are you absolutely sure bichloride of mercury caused her death?

          Smiley: Reasonably sure.

          Cox: But you said a while ago that you were absolutely sure. Are you still absolutely sure?

          Smiley: Yes.


          Cox: Where did you read that any of those cases was when the stomach was full, where did you?

          Smiley: Well, for instance, I read Blair, an English toxicologist, he is the--I read Solomon, I read Bosider and Wood.”

          Cox: And did you read that in Witthouse?

          Smiley: Woods, Clark, Landers, another English toxicologist, Milt, etc.. etc.


Cox: You have read those within the past two or three weeks?


Smiley:
Not all of them.


Cox: Most of them?


Smiley: Yes.


Cox: Well, you were familiar with Witthouse's book?


Smiley: No, I don't know anything about it.


Cox: Oh, I thought you did.


Smiley: No, I didn't make that statement, I don't know anything--


­

          Cox: You don't know anything about Witthouse's book at all?

 

Smiley: No.


          Cox: Do you know whether Witthouse is a recognized authority on toxicology?


          Smiley: I don't know anything about it.


Cox: And don't you know, Doctor, that that book reports five hundred sixty-five cases running from 1879 to 1910 which were treated in hospitals: well-authenticated cases, don't you know that?


          Smiley: I don't know whether Witthouse is a law book or some other kind of book, I don't know anything about it.


          Cox: And you say you don't know he reports five hundred sixty-five cases?


          Smiley: That is what I said, three times.


          Cox: And that three hundred and two of them only were fa­tal?...You spoke of your famil­iarity with Blair?


          Smiley: Yes.


          Cox: How many cases of mercuric poisoning does Blair report, Doctor?


          Smiley: I believe thirty-six, I believe in the article I just referred to, in the chapter I referred to.


Cox: Just thirty-six?  Have you any knowledge at all, Doctor, as to whether the percentage of fatalities as stated by Blair was ninety percent, more or less?


          Smiley: He says sixty-one percent, specific-no, one percent of what he--


          Cox: How was that?


          Smiley: This paragraph merely dealt-that I have in mind, merely dealt with the time of death after taking the bichloride.


Cox: And you are testifying here as an expert?


           Smiley: Theoretically--


           Cox: And after losing ninety percent of your mercurial poison­ing cases, you consider yourself an expert?


          Smiley: Circumstances--


Cox: No further questions.


          Smiley: Circumstances alter cases.


          [Recalled:]

         
            Cox:  Have you [talked to anyone about your testimony in the case]?

 Smiley:  [No.]


Cox: Don't you know Dr. John W. Williams?

Smiley: [No.]

Cox: You mean to say you don't know him-never heard of him before?

Smiley: [Yes, that's right....]

  

Cox:  Where did you get this book [Blythe's Works' on Toxicology]? 
     

          Smiley: Another doctor loaned it to me.


Cox:  Who was the other doctor?


Smiley: I don't know who it belongs to.


Cox: How long have you practiced medicine?


Smiley: I was graduated in 1908.


Cox: Did you ever attend a veterinary school?

Smiley: "No, sir. I taught pharmaceutics and toxicology last year in Indiana Veterinary College...
                                         "

Cox: You have some veterinary remedies?


Smiley: "No, I am not altogether a 'hoss' doctor.

           Cox: Did you ever have any connection with the Veterinary Remedy Company?

 

            Smiley: [Yes.]


            Cox: I will ask you if that is one of your advertisements [for veterinary products]?


  Smiley: [Yes.]

 

  Cox: Again, let me ask you, Doctor, you spoke, if I remember correctly, of an­other authority on toxicology called 'Milt'? . . . When did you read that?


            Smiley: I have seen it every day for the last two years.


  Cox: How large a book is it?


  Smiley: It is a book of about five hundred pages, I think.


  Cox: Is it standard?


  Smiley: Yes, sir, it is.


  Cox: And is it a human or domestic animal toxicology?


            Smiley: It is all the same.


             Cox:  Does not matter whether it refers to human or animals. All experiments are done on animals. This happens to be a veterinary book...


  Cox: You told us yesterday, as I recall, that you never had treated the defendant Stephenson in his home in Irvington?


  Smiley: Smiley: That is what I said, yes, sir.


  Cox: But you said you had prescribed for him?


  Smiley: Yes. Sir.


  Cox: Where ?

 
  Smiley: At two or three of the hotels. And then one time-I have forgotten the address-It was on Meridian Street someplace...


  Cox:  Never at any hospital?


  Smiley: I saw him once at one hospital.


  Cox: Which hospital?

 
  Smiley:The Methodist Hospital....

             

             Cox: What is the fact as to whether you ever did treat him for delirium tremens or alcoholism?

            Smiley: I can't say that I ever treated him for delirium tremens.

            Cox:  Did you ever treat him or prescribe for him for alcoholism?


            Smiley: Not alcoholism alone, no."

             Cox: For alcoholism in part?

  Smiley: Yes, one time he was a little nervous and had been losing a lot of sleep, and he might have had a little alcohol, I don't know...I didn't see him take any...

             Cox:  You say 'not alone,' Doctor-what else?


             Smiley: Loss of sleep and overwork and exertion, et cetera- -nervousness.


            Testimony of Dr. Paul F. Robin­son, coroner


             Inman:  Have you had occasion to come in contact with mercurial poisoning resulting In death?


             Robinson:  A great many cases, running into the hundreds.

             Inman:  In the case of Madge Oberholtzer, did you designate some officer to conduct a post-mortem examination of the body?

             Robinson:Yes. Dr. Virgil H. Moon.

             Inman: Did you see the body of Madge Oberholtzer?

   Robinson:  Yes, I did.

   Inman: Did you notice any bruises or wounds on her body?

   Robinson: None that attracted my attention.


   Inman: Did you notice any abrasions on the breast?


   Robinson: No, I did not.

          

   Inman: You held the inquest in the case of the death of Madge Oberholtzer?


   Robinson: Yes...

Inman:  When you render a verdict as to the cause of death, do you file it with the clerk of the court?


Robinson:  Yes...

  

   Inman:  ....Doctor, assum­ing the facts and conditions to have existed as I have described them, what, In your judgment, caused the death of Madge Ober­holtzer?
 

   Robinson:   I'd say death was due to mercurial poisoning, from taking bichloride of mercury.  


        .

 Testimony of Dr. J. D. Moschelle, an Indianapolis doctor


           Inman:  Is there any certainty that medical aid would have even prolonged the patient's life?


Moschelle:  There is no certainty, but I think the aid given her un­doubtedly did prolong her life.


           Cross-examination by Charles Cox


Cox:  Dr. Moschelle, the character of the questions which the state will ask you may depend somewhat on your answer to the question I shall now ask you. Do you wish  your tes­timony here to be regarded as that of an expert witness on bichloride of mercury poisoning or merely as that of a physician and surgeon engaged in the general practice?"


 Moschelle: I expect that to be merely as a physician and surgeon en­gaged in the general practice.


           Cox: You have no special claims to expert knowledge as a toxi­cologist, Doctor, as I understand it?


           Moschelle:  Not as a toxicologist, no.


           Cox: And while you know, of course, something about pa­thology, you make no claims to being an expert pathologist?


           Moschelle: I do not....


 Cox:  And, Doctor, if they could have prolonged her life by giving her help--


           Moscehlle: They could have prolonged her life and they did prolong her life.

Cox:  And if that medical attention that she received after she got home had been given her twenty-four hours before, her life might have been still further prolonged, might it  not, Doctor? 

          Moschelle: It may have.

Cox:  And, Doctor, if the staphylococci infection was introduced into the patient's system by a bite of the man in the berth with her, and that staphylococci infection had caused the high tem­perature, the pus in the blood which the fighting soldiers of the blood were called into service to overcome, and which caused the abscess in the lower lobe of the lung, that might have been an instrument in shortening her life, might it not?

Moschelle: It might have, yes, sir.



         Testimony of Dr. Vallery Ailstock, a dentist


 Ailstock: Well, I was standing on the corner of Fifth and Washing­ton streets [in January 1925], talking with Dr. Clawson, a friend of mine. And it happened that I lived in an apartment at that corner, and there was a large automobile drove by to the curb and somebody said, "Well, hello, Doc!" We looked up. It was Mr. Stephenson. We stepped over to the curbing and down in the street by the side of the car where he had parked and shook hands with him, passed the time of day, and he says, "Well, boys?" Then he introduced us to Miss Oberholtzer....Well, Mr. Stephenson turned the conversation then...Well, I talked to Mr. Stephenson regarding the trip that he made to Columbus once before, and I invited him down to fishing and he said that he would come, and I walked around the other side of the car to talk to Mr. Stephenson personally and talked, I think, probably five minutes. And I heard Mr. Clawson say, "Well, maybe Ailstock has some, I don't. I don't use it." And on hearing my name, I says, "What is that?" And Clawson said, "Well, there was something said about alcohol and liquor and I told her that I didn't use it, being a chiropractor, but you, being a dentist, would probably have some.' And I says, "No, I don't use it, my position does not allow it and I don't use alcohol in my practice. I don't even have an alcohol permit." And Mr. Stephen­son said, "Well, that is enough of that, now." He says, "You are not feeling any too well this evening, anyway." And that was the turn of the conversation. Something was said then in regard to-be­tween Mr. Stephenson and I-about the purchase of the Indiana Dental College; I told him I had been approached by...

          Holmes: Did Miss Oberholtzer engage in that con­versation?

          Ailstock: She did...She said that was strange, that I ought to have it, it would make good gin.

          Holmes:  What are you referring to that you "ought to have"?

Ailstock: Alcohol.

Holmes: Did you see her any more after that?

         Ailstock: I saw her once after that in Stephenson's office.

Ailstock. It was shortly after or just before that night. I don't know which, I was up there on the dental college matter...

Holmes: Where was Miss Oberholtzer?

Ailstock: She was sitting in the reception room.

 


          Testimony of Ralph E. Rigdon, political friend of Stephenson


          Holmes: When you saw her [Madge] in Stephenson's private office, what was she doing?

Rigdon:  She was just sitting there. [Rigdon testified that later  Stephenson, Oberholtzer, and himself  went to Stephenson's hotel room where they drank gin.  He said after he left the room, Stephenson and Madge remained in the room together.]

         

Cross-examination by Kane:


          Kane: Now when you got to the room, you say Madge Oberholtzer and Stephenson were in the room?


Rigdon:  When I got there-yes.


Kane: And when you got in--


Rigdon: I had talked my business with Stephenson on the out­side.


Kane: But had no conversation about your business?


Rigdon: Not this particular business I went to see.


Kane: After you went in you remember you took a drink of gin?


Rigdon: Yes, he offered--


Kane: Stephenson had a supply of gin?


  Rigdon: There was a bottle of gin .  I don’t know whose it was.


Kane: Well was he handling it?


Rigdon: No, I don't know as he was.


Kane: Who suggested that you have that drink of gin?


Rigdon:  I don't recall who made the suggestion.


Kane: Did you see any bottle of gin before It was offered?


Rigdon: No, I don't recall....


         Kane: Did you suggest you were a little dry and would have a drink?


            Rigdon: No, I don't think I suggested that.

           Kane: But you are very positive that you took a glass of gin, and that Madge took a drink?


  Rigdon: Yes. Sir.


           Kane: Now don't you know there is not a word of truth in that­ -that you didn't see the girl at that hotel at all.


 Holmes: To which the defendants object.
 

           Kane: And that the statement that the gin was drunk at that time is a plain lie, don't you know that!?


Rigdon: No, sir.


Holmes: We object to that, Your Honor.

Kane:  And that you came here for the express purpose of committing perjury and that everything you said on that sub­ject is a lie!?


          Rigdon: You are not big enough to tell me that on the street!


Judge Sparks: Answer that question and you can do what you please on the street.


          Kane: Yes, I'll meet you on the street!

 


Judge Sparks: Now, gentlemen, I want you to understand right now this is not a justice of the peace court. This is a place where you are going to have to conduct yourselves properly, and if you can't conduct yourselves properly on both sides, I am go­ing to get somebody that will.


Rigdon:  It's not fair to me!


         Judge Sparks: You keep still! I am not asking advice from you! I will run this by myself!


         Rigdon: I beg your par­don.


         Judge Sparks: I am addressing the audience. Go ahead and answer the questions, and keep still afterwards....

          Kane: You're a close friend of Stephenson, aren't you? And you came up here to help him out, in fact, you would go to any limit to help him out?                                    .      .

          Rigdon: No!

          Kane: You know you're telling a lie!


Rigdon: You're afraid to say that on the street!...


Kane:  Now what was your business before you went with the state committee?


Rigdon: Salesman.

Kane:  What were you selling?


Rigdon: Stocks and bonds.


Kane: Now you say you met Stephenson three years ago last September?

Rigdon: Or October, I won't be positive.


Kane: Where did you meet him?

Rigdon: I met him at what is known as the Schultz Apple Orchard at Laurel.

Kane:  Were you down there with him?

Rigdon: I met him there.

Kane:  What was the occasion that took you there?

Rigdon: I was joining the Knights of the Ku Klux Klan.


Kane:  Yes, you were going into the Klan and Stephenson was their organizer, was he, and then did you become an organizer afterwards?

Rigdon: I did not.


Kane:  Well, what was the occasion that took you to Ste­phenson's place so frequently before the Legislature met?


Rigdon: We had matters of mutual interest.

Kane: What?

Rigdon: Politics.

Kane: Anything else?

Rigdon: No.

Kane: Politics?

Rigdon: That is all.

Kane: But what were your political schemes you were working at?


 [Objection overruled.]


Rigdon: Well, we were trying to elect our friends.


Kane: And who were your friends?  Members of the Legislature?


[Defendants' objections overruled.]


Rigdon: Well, most everyone that was elected.   


Kane: Well, did you see members of the Legislature at Stephenson's office on these occasions. when you were there?


Rigdon: Yes. 
 
Kane: How many, about?
                                             
Rigdon: Well, I don't know that I seen all of them there.


Kane: How many?

           Rigdon: Give me a roster and I will name everyone that was there...  

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