STEPHENSON v. STATE:
Testimony of Prosecution Witnesses (Excerpts)
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
Oberholtzer: Oh . . . she was torn and bruised.
Remy: Any wound upon her body of any sort?
Oberholtzer: Yes, her
breasts had open wounds all
Remy: Just describe
the wounds to the jury as
you saw them.
Remy: And where
else did you notice, if any
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.
Kingsbury: She said,
'All right, I'm ready to die.'
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?
attorneys objected, but their objection was overruled.]
said that her chances "would have been better."
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?'
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?
Inman: Was there
anybody present when you wrote
Smith: Now you are
referring to the very first time?
Inman: Yes, the
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
while ago you first took the combination and wrote out the statement in
longhand, now that is the only thing I am
Smith: Oh, the
question is, how many pages?
Smith: Well, I don't
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?
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?
is that affidavit?
you know what became of it?
the notary public take the acknowledgment of the signature of
Oberholtzer to this statement?
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?
Inman: Where did you
She was friend of Miss Ermina Moore's.
much time elapsed between the signing of this document [the dying
and the signing of the affidavit?
Inman: Who had
brought the notary?
Inman: You had?
Inman: Did you drive
out and take her in your
Smith: I did.
[Inman asked, "Mr. Remy, will you be willing to let us see
Remy: I have not got it with me. It is in Indianapolis.
Inman: If you don't mind, will you bring it up?
"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?
Inman: Who wrote
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.
you write those words with the same pen that Miss Oberholtzer used to
Inman: Do you
remember whether you used a fountain
Inman: And whose pen
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.'?
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
objection to the question was sustained by Judge
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
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%.]
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: 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.
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
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
Moon: Probably would.
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.
Moon: That is
my opinion, sir.
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
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?
Cox: And cases
where what should ordinarily be
considered a fatal dose
Cox: How many
such cases have you found?
Harger: In medical
literature, eleven such
Cross-examination by Inman:
Inman: You say these eleven cases got well?
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
Inman: The largest factor would be the amount absorbed,
would it not?
answered that the
given to the patient would be the biggest factor.]