STEPHENSON v. STATE: Testimony of Prosecution Witnesses (Excerpts)
Oct. 29 -Nov. 4, 1925

Attorney Asa Smith, key prosecution witness

        Opening Statement for the Prosecution: Charles Cox

 

The evidence will show that he had a double personality. That on one side of him was the sympathetic, cultured, attractive man of the world; that he was an impassioned orator; that something about him enabled him to attract and dominate better men and women.

The evidence will show that there is another side of him and that side showed him a violator of the law; to be a drunkard and a persistent destroyer of women's chastity. A typical Dr. Jekyll and Mr. Hyde....

I said to you that Madge Oberholtzer would be the principal witness for the state and her story-as­sail her memory how they may-is of itself sufficient warrant to brand the black word 'Guilty' on the brazen foreheads of the defendants.” he said. "But the state will give you more, far more than her story. She will be supported, corroborated by credible witnesses, by unassailable facts and by inescapable inferences until there can rest in no man's mind a reasonable doubt of the guilt of these men.                                                                    


Witness Matilda Oberholtzer, mother of the victim.

y

Oberholtzer: Oh . . . she was torn and bruised.

Remy: Any wound upon her body of any sort?

Oberholtzer: Yes, her breasts had open wounds all over.

Remy: Just describe the wounds to the jury as you saw them.

Oberholtzer:
On both sides they were bruised. On this side (she indi­cated one side) was a round bruise, a kind of jagged place all around on the side. On the right side of her face, both sides were bruised.


Remy:
Now Mrs. Oberholtzer, state whether the bruise-describe the bruise appeared, as to whether there were any prints of any prints of any sorts in the bruise.

Oberholtzer: Yes there was. It was a large round-rather round imprint all around.


Remy:
The bruise had an imprint around it?


Oberholtzer: Yes.

Remy: And where else did you notice, if any place?

Oberholtzer: Bruises all the way down to her ankles and on her hips.    

          


Witness Eunice H. Schultz, boarder at the Oberholtzers' house

Schultz: I was in the kitchen. I  heard groaning and I went to the dining room and saw Madge being carried upstairs by a man, a large man. . . . I stayed down­stairs till the man came down. . . . He said she was hurt in an  automobile accident and I asked him if she was badly hurt. He said he thought no bones were broken. I asked him who he was.
He said his name was Johnson and he was from Kokomo.

Remy:  Did you get a good look at his face?

Schultz: Yes, as he came down the steps.

Remy: Do you see that man in the courtroom now?

Schultz: Yes, sir.  Right there, dressed in dark clothes with dark hair.  (pointing to Earl Klinck)...She was groaning with every breath,. I saw her bruises. On the right cheek was a circular wound. It was dark in color. There was a bruise on her left chest of the same shape, only deeper. The wound on her breast was open.

Remy:  Did [Madge say anything to her?]

Schultz: She just groaned, ‘Oh’ and said, 'Dear Mother.'



Witness Dr. John Kingsbury


Kingsbury:  Her dress lay open at the breast exposing bruised areas with two or three lacerations or cuts on the left chest. The right cheek was bruised. I made a superficial examination through her clothes to determine whether there were any broken bones-I had been informed she was in an auto accident. I made no fur­ther examination then.


Remy:  [Did Madge say anything at that time?]


Kingsbury: She said she did not expect, or want,to get well-that she wanted to die.


Remy: From the appearance of the lacerations, would you say they were such as might have been the result of bites by human teeth?


Kingsbury:  In my opinion, they were....


Kingsbury: She said, 'All right, I'm ready to die.'

 

Remy:  In your opinion, what would have been the prospects for recovery if she had had medical aid four or five hours after shy took the poison?


[The defense attorneys objected, but their objection was overruled.]


Kingsbury said that her chances "would have been better."


Remy:  Did the delay in getting medical attention [for Madge lessen the chances of prolonging or saving her life?]


Kingsbury:  Most certainly, in my opinion, it did.           

        

          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?


          Smith:
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.]



Witness Levi Thomas[porter on train]

Thomas:  She [Madge] said, "Oh, dear, put the gun up, I am afraid of it.”

          Inman:  She said: "Oh, dear"? Did she say anything else?


[Remy's objection to the question was sustained by Judge Sparks.]


Judge Sparks: Here is the propo­sition: she said "Oh, dear, put the gun up.' She might not have meant to address it to him; she might have addressed it with fear. That is not fair. Gentlemen, you can argue that before the jury; I don't know....

 

Witness Dr. Virgil Moon [pathology teacher at Indiana University]


          Charles Cox:
What is the fact, Doctor, as to whether there may be a recovery from bichloride of mercury poisoning when a largely in excess of a fatal dose has been taken?

           Moon:  Very many such cases, where a quantity greatly in excessof the fatal dose has been taken have recovered.

           Cox: State whether bichloride of mercury poisoning is almost uniformly fatal.

           Moon:  "It isn't uniformly fatal, nor is it fatal in a high percentage of cases. [Moon testified that recent fatality rates had dropped to about 25%.]


 Cox:  You spoke of the post mortem examination disclosing an abscess in the lung. Will you state the char­acteristic of that?


 Moon: Microscopically, this abscess consisted of pus, as usually is found in abscesses; it [the abscess] also showed the presence of the germs which produced it, these were of the variety which we call staphylococci.

 Cox: Pus-forming germs?


 Moon:  Yes. sir.


 Cox: In this particular case of Madge Ober­holtzer, did your post mortem examination disclose any injury to her body which might have been the cause of this infection?

Moon:
I found only one area from which such an infection could probably have originated.

         

          Cox:  Tell what it was.


Moon: The lacerated and recently healed infection in the skin over one breast was the only one which I found from which such a pyemia [blood poisoning] as I have described could probably have resulted.


          Cox: Could such injuries as you discovered be infected by hu­man teeth?


          Moon: They could be, yes.


          Cox: I may have asked this before: Did any of these marks on the breast show evidence of an infection having been present?


 Moon: One of them showed very unmistakably; the infected wound which had recently healed.


 Cox:  Are wounds made by biting usually infected?


 Moon: They are very apt to be infected....


           Cox: What, in your opinion, Doctor-she dying on the last of the twenty­-ninth or the beginning of the thirtieth day-was the cause of her death?


Moon: In the hypothetical case, death resulted from a complication rather than from the direct effect of the mer­curic chloride poisoning. . . . The nature of the complication is definitely indicated as that of a blood stream infection, with some pus-forming bacteria.


 Inman (cross-examination):  [Inman asked Moon to hold a glass of water into which Inman dropped a tablet, which began disolving.] Now, Doctor, would you mind to shake that a little, with­out taking a chance?....

           Moon: Yes, the foam is coming up and is giving the water a little greenish tinge.

           Inman: So when you drop the tablet into the glass of water, and in the course of a few seconds, if you shake the glass, it colors the water green?

          Moon: As soon as it gets into solution the water becomes green.

          Inman: So it takes, in fact, Doctor, but a very few seconds for it to dissolve in water?


          Moon:  The jury shall be the judge of the amount of time taken.


Inman: Now, Doctor, assuming that you drop such a bichloride of mercury tablet into a glass of water, or say drop three of them into a glass of water at one time, and in the course of a few sec­onds shake it up, stir it up after the tablets have fallen to pieces and begin to scatter through the water and over the bottom of the glass; if you would drink that glass of water containing that dissolving tablet, these dissolving tablets, into your stomach, thereby throwing the whole mass into quick contact with the heat of the stomach, it would cause the dissolution to be accel­erated, would it?


          Moon:  Probably would.


          Inman: What was the immediate cause of the death of Madge Oberholtzer?


Moon:  In my opinion, the immediate cause of death was an infection carried through the blood stream, localizing in the lung and in the kidney, particularly in the kidney. That was the immediate cause. There were other and contributing causes.



Inman: After she had lived twenty-five days from the time she took the poison, to-wit, until April 11, say, it is your view that she should have recovered if complications had not set in, is that right?


Moon: That is my opinion, sir.


Witness Dr. R. N. Harger, toxicologist (rebuttal testimony)


         Cox: Is there a toxicology by "Milt"?

Harger:  I think not-quite sure of it, in fact.  [Harger testified that he had examined "all the regular sources" and could not find anything written by someone named Milt.]


          Cox: If witnesses have used these texts I have mentioned to support their statements, what would you say about the authority of their testimony?


          [Objections sustained.]


Cox:  Have you made a search for cases of poisoning, especially bichloride of mercury taken by mouth, where the patient lived although the poison was taken five hours or more before medical aid was rendered?

Harger: I have.

         Cox: And cases where what should ordinarily be considered a fatal dose had been taken?


Harger: Yes. Sir.


Cox: How many such cases have you found?


           Harger: In medical literature, eleven such cases.


Cox: At least two medical witnesses for the defense stated that there were no instances of recovery of cases where fatal doses had been taken and no medical aid had been given until after five or six hours' lapse of time....


Cross-examination by Inman:


Inman: You say these eleven cases got well?

Harger: Yes.


Inman: How many of the other cases died?


          Harger: [Out of 450 total cases, "I believe that 40 had died."]


          Inman: In anyone of the eleven cases where the patient got well, how much of the poison was absorbed?


          Harger: I don't know. I know the amount taken but not the amount absorbed.

          Inman: The largest factor would be the amount absorbed, would it not?


          [Harger answered that the treat­ment given to the patient would be the biggest factor.]

         

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