388 



GUITEAU'S TEIAL. 



Richmond, Virginia, and John II. Callender, 

 of Nashville, Tennessee, having followed Dr. 

 Macdonald, a motion was made by Mr. Porter 

 that the prisoner be removed from the coun- 

 sel-table, where he had thus far sat, and placed 

 in the dock. After this had been argued with 

 considerable warmth on both sides, the judge 

 decided to remand tlie prisoner to the dock. 

 It was hardly necessary to say, he remarked, 

 that the conduct of the prisoner had been in 

 persistent violation of order and decorum. In 

 the beginning, the only methods which could 

 be resorted to to suppress this disorder were 

 such as must infringe the constitutional rights 

 of the prisoner, and that was conclusive argu- 

 ment against them. Until Saturday the 25th 

 no other method had been proposed. Then this 

 proposition (which he had already had in mind) 

 was submitted. It had hitherto been an im- 

 pression shared by the court and counsel, that 

 the prisoner's conduct and language in court 

 would afford the best indication of his mental 

 and moral character, and contribute largely to 

 the enlightenment of court and jury on the 

 question of his responsibility. It was therefore 

 on the express desire of the District Attorney 

 that the court had allowed such latitude of con- 

 duct, in order to furnish the exports an oppor- 

 tunity of diagnosing the prisoner's case. As it 

 now appeared, the opinions of the experts had 

 been largely founded on the exhibitions which 

 had taken place on the trial, and, if they had 

 contributed to enable those experts to reach 

 their conclusions, it would be a complete vin- 

 dication of the view of the District Attorney 

 as to the proper course to be pursued. At this 

 stage of the trial, however, this object seemed 

 to have been accomplished. The trial was now 

 approaching its close. The experts had had 

 ample opportunity to make up their judgments 

 and pronounce them before court and jury. 

 It was incumbent on the court now to impose 

 such restraint as the circumstances of the case 

 admitted, and which would conduce to the 

 orderly conduct of the case. The prisoner had 

 a right to hear the testimony of witnesses. 

 He could not be gagged or sent out of court. 

 The proper place for a prisoner on trial for 

 felony was the dock. He could only come 

 within the bar to be arraigned and to receive 

 sentence. If the court granted him the privi- 

 lege of sitting beside his counsel, it was a privi- 

 lege which could be withdrawn summarily. 

 While the prisoner had the undoubted right to 

 act as his own counsel or to appear by counsel, 

 he could not exercise both rights simultane- 

 ously. Having accepted counsel, the prisoner 

 had waived his right to appear as such in per- 

 son. On the consideration of all the circum- 

 stances the court thought that the motion would 

 have to be granted, and that the prisoner should 

 be placed in the dock, but he did not mean that 

 the prisoner should be exposed to any danger. 

 He should have the fullest protection. 



The change, however, did not put a stop to 

 the interruptions of the prisoner. Dr. Walter 



Kempster, of Winnebago, Wisconsin, was ex- 

 amined December 29th and 30th, and the last 

 expert witness for the prosecution, Dr. John 

 P. Gray, of Utica, New York, on the 30th and 

 31st. With regard to Dr. Gray's testimony, it 

 was publicly stated that he was called to Wash- 

 ington by the Government to make a thorough 

 examination of the prisoner's condition, with 

 a view to ascertaining whether there was real 

 ground for the plea of insanity. If such should 

 be the case, the Government preferred to have 

 it substantiated, regarding it better as a matter 

 of policy to have the accused shown to be a 

 lunatic, and sent to an asylum, than to have 

 him convicted. Dr. Gray made a thorough ex- 

 amination of the man in jail, and attended the 

 trial from the opening day, and, against his in- 

 clination, and the preference of the prosecuting 

 authorities, was forced to the conclusion that 

 he was entirely sane. His testimony related 

 to his study of the case, the various phases of 

 insanity, and the grounds of the conclusion at 

 which he had arrived. His evidence, which 

 was finished on the 3d of January, concluded 

 the testimony for the prosecution. The de- 

 fense introduced some unimportant evidence 

 in surrebuttal, that of the sculptor in regard to 

 the cast of the prisoner's head being, however, 

 excluded by the court, and applied for the 

 privilege of bringing in new evidence. After 

 argument, this was denied by Judge Cox. lie 

 said: 



That if any new fact were developed now that struck 

 his mind as Laving an important bearing on the de- 

 fense or as necessary to a fair presentation of the case, 

 he would deem it his duty (notwithstanding that the 

 testimony for the defense was formally closed) to al- 

 low that fact to be given in evidence. Part of the 

 testimony now proposed to be introduced was offered 

 in the character of surrebutting testimony and part 

 not. The first was the opinion of a medical expert as 

 to the condition of the prisoner's mind. He under- 

 stood the law and practice to be simply this : The law 

 presumed sanity, and the first affirmative testimony 

 on that issue had to come from the defense. Expert 

 testimony was a part of the evidence in chief for the 

 defense on that issue, and all the expert testimony on 

 which the defense relied must be offered in chief 

 Part of it could not be reserved to be offered by way 

 of surrebutting testimony. After that testimony was 

 in, it then became the duty and the right of the prose- 

 cution to offer ,vidence on the general question of in- 

 sanity. The prosecution was not confined to the mere 

 contradiction of -witnesses for the defense, but it might 

 go at length into the question and offer independent 

 and affirmative proof on that question. A part of that 

 testimony was that of medical experts. That testi- 

 mony was not offered strictly in contradiction of the 

 medical testimony for the defense, because one man's 

 opinion was not a contradiction of another man's opin- 

 ion, but it was offered as independent testimony. 

 When this testimony was closed on the part of the 

 Government, then the defense was restricted to a con- 

 tradiction of facts that may have been testified to on 

 the part of the prosecution. It was not allowed to con- 

 tradict an expert on the part of the prosecution by the 

 testimony of another expert who had a different opin- 

 ion. If that was allowed, there would be no end to 

 the trial. It would run on to rejoinder and surre- 

 joinder, and to all the innumerable issues which the 

 ingenuity of counsel might devise ; so that the privi- 

 lege of producing expert testimony was limited to the 

 evidence in chief for the defense, and to the evidence 



