is equally material, and that the prosecution have no right to choose between the two men, selecting one as their witness, and rejecting the other. The fact that they have done so, would warrant the imputation that the prosecution are seeking for a conviction of our client, rather than looking for justice, in a thorough sifting of all available facts. I am sure that the honorable council on the other side will be only too glad to avoid such an imputation in the public mind, now that their attention has been called to the omission."
"Counsel is very generous," said Mr. Munson, with much sarcasm. "His solicitude for the reputation of the district attorney's office is very touching, but at the same time entirely misplaced. In this matter, those who have charge of the case of the commonwealth, feel that they can safely permit the conduct of this case to meet the most searching criticism. We decline to call Dr. Fisher, unless ordered to do so by the court."
"Then we move that the court so order," snapped back Mr. Dudley.
"It certainly seems to me," said the Recorder, "that the testimony of this physician is very material, and that he should have been included among the witnesses for the people. Have you any arguments against this view, Mr. Munson?"
"Only this, your Honor, that it was considered that the testimony of one witness would suffice. The selection was made without regard to known opinion, for none had been expressed prior to the issuance of a subpoena calling Dr. Meredith into the case. We decided to have but one witness, merely to save unnecessary costs. Now so far as this motion is concerned, we maintain that it comes too late. Counsel was served with a copy of the indictment, which contained a list of our witnesses upon the back. Thus they had ample notice of our intention not to call Dr. Fisher, and if they desired that we should do so, the motion should have been made earlier, and not at the end of our case."
"What have you to say in reply, Mr. Dudley?" asked the Recorder.
"Your Honor," said Mr. Dudley, showing by his bearing an assurance of gaining the point for which he contended; "the excuse that the name of Dr. Fisher does not appear among the list of witnesses for the prosecution, is entirely aside from the issue. It is a claim that has been made and rejected more than once. I need only remind your Honor of the Holden case, to bring it to your Honor's immediate recollection. That case was very similar to this one. Three surgeons had examined the body of the deceased, and but two of these had been called by the prosecuting attorney, counsel refusing upon the identical ground that his name had not appeared in the indictment. The presiding judge, Paterson, ruled that as a material witness, he must be called. That is precisely the condition here and I hope your Honor will see the justice of calling Dr. Fisher."
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