The "Miracle Wheat" Trial: Russell v. Brooklyn Daily Eagle (1913)

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SUPREME COURT

Appellate Division---Second Department.

CHARLES T. RUSSELL, Plaintiff-Appellant,

against

THE BROOKLYN DAILY EAGLE. Defendant-Respondent.

CASE ON APPEAL.

SPARKS & FULLER,

JOSEPH F. RUTHERFORD,

Attorneys for Plaintiff-Appellant,

44 Court Street,

Brooklyn, N. Y.

DYKMAN, OELAND & KUHN,

Attorneys for Defendant-Respondent,

177 Montague Street,

Brooklyn, N. Y.

THE REPORTER CO., WALTON, N. Y.

New York Office: 253 Broadway, Room 205. 'Phone 6575 Barclay.

Brooklyn Office: 375 Fulton Street, Room 58. 'Phone 2300 Main.

Index.

Statement Under Rule 41 ... 1

Notice of Appeal ... 2

Summons ... 3

Complaint ... 4

Answer ... 14

Extract from Minutes ... 21

Judgment ... 22

Order Denying Motion for a New Trial ... 23

Case ... 24

Charge ... 292

Defendant's Requests to Charge ... 298

Plaintiff's Requests to Charge ... 305

Verdict ... 311

Motion for a New Trial ... 311

Stipulation that Case Contains all the Evidence and Settling Case ... 424

Order Settling Case ... 425

Stipulation Waiving Certification ... 425

Affidavit of No Opinion ... 426

Order Filing Record in Appellate Division ... 426

TESTIMONY.

WITNESSES FOR PLAINTIFF:

Kent B. Stoner:

Direct ... 24

Cross ... 37

Re-direct ... 41 Joseph I.

Knight, Sr.:

Direct 43

Cross 46

Re-direct 52

Joseph A. Carlton:

Direct 54

Cross 58

Re-direct 62

J. Adams Bohnet:

Direct 63

Cross 64

Samuel Kuesthardt:

Direct 69

Cross 69

Samuel J. Fleming:

Direct 77

Cross 79

Mentas Sturgeon:

Direct 81

Cross 84

Re-direct 99

Re-cross 108

Recalled:

Direct 174

Cross 175

Alfred J. Ritchie:

Direct 121

Cross 124

Isaac L. Frey:

Direct 128

Cross 130

Recalled:

Direct 133

Frederick S. Widener:

Direct 132

Cross 133

Henry D. Ayre:

Direct 133

Cross 136 Francis H.

McGee:

Direct ... 137

Cross ... 138

James D. Rogers:

Direct ... 141

Cross ... 142

Harry J. Aldrich:

Direct ... 144

Cross ... 144

Re-direct ... 147

William Pray:

Direct ... 155

Cross ... 156

Re-direct ... 156

Re-cross ... 157

Recalled:

Direct ... 159

Williamson I. Tomlinson:

Direct ... 157

Cross ... 157

Re-direct ... 158

Edward W. Hunt:

Direct ... 159

Cross ... 160

Re-direct ... 161

Paul S. L. Johnson:

Direct ... 161

Cross ... 164

Alexander H. MacMillan:

Direct ... 170

Cross ... 171

Frank F. Cook:

Direct ... 177

Walter E. Spill:

Direct ... 178

Cross ... 178

Eliot H. Thomson:

Direct ... 180 Recalled:

Direct ... 285

Charles Owens:

Direct ... 181

Cross ... 181

Ernest W. Kuehn:

Direct ... 286

Cross ... 287

William E. Van Amburg:

Direct ... 288

Frederick H. Robinson:

Direct ... 290

Cross ... 291

WITNESSES FOR DEFENDANT:

Carlton R. Ball:

Direct ... 182

Recalled:

Direct ... 244

Cross ... 259

Re-direct ... 276

William E. Van Amburg:

Direct ... 188

Cross ... 221

Edward W. Brenneisen:

Direct ... 236

Cross ... 238

Re-direct ... 239

Re-cross ... 240

Maria F. Russell:

Direct ... 240 EXHIBITS.

PLAINTIFF'S EXHIBITS:

1, 2, 3. Heads of Miracle wheat .. 105

Letter of May 23, 1911, J. A. Bohnet to plaintiff .. 190 313

Letter of July 22, 1911, by S. G. Fleming .. 235 314

Stool of Miracle wheat .. 408

Extract from the Watch Tower, June 15, 1911 .. 441 315

Extract from Brooklyn Eagle .. 441 316

Extract from Brooklyn Eagle .. 442 321

Extract from Brooklyn Eagle .. 442 326

Extract from Brooklyn Eagle .. 443 327

Extract from Brooklyn Eagle .. 455 330

Extract from Brooklyn Eagle .. 456 333

Extract from Brooklyn Eagle .. 457 334

15 for Identification. Extract from Brooklyn Eagle (offered at fol. 446) .. 340

16 for Identification. Extract from Brooklyn Eagle (offered at fol. 447) .. 343

Heading of article from Brooklyn Eagle .. 458 347

Cartoon from Brooklyn Eagle .. 458 348

Heading of article from Brooklyn Eagle .. 459 349

Cartoon from Brooklyn Eagle .. 460 350

Heading of article from Brooklyn Eagle .. 461 350 vi.

Heading of article from Brooklyn Eagle ... 461 351

Cartoon from Brooklyn Eagle .. 462 352

Heading of article from Brooklyn Eagle ... 463 353

Same as Plaintiff's Exhibit 12 ... 330

Extract from Brooklyn Eagle ... 461 353

Two stools of Miracle wheat ... 465

Extract from Watch Tower ... 850 355

Extract from Watch Tower ... 851 357

Copy of voting certificate ... 851 359

38 for Identification. Check for $10,-000 to order of plaintiff, dated Dec. 2, 1911 (offered at fol. 860) ... 360

DEFENDANT'S EXHIBITS:

A. Letter of June 21, 1911, J. I. Knight to Prof. Minkler ... 142 360

B. Letter of Aug. 28, 1911, Prof. Minkler to J. I. Knight ... 143 361

C. Letter of July 11, 1911, J. I. Knight to Prof. Minkler ... 143 362

D. Letter of Aug. 26, 1910, J. I. Knight to Prof. Minkler ... 147 362

E. Letter of Aug. 10, 1910, J. A. Carlton to plaintiff ... 180 363

F. Plaintiff's letter of proxy, dated Sept. 26, 1908 ... 364

G. Mortgage, dated May 14, 1909, Wm. E. Van Amburg to Watch Tower Bible and Tract Society 624 364

H. Conveyance made by People's Pulpit Association, May 14, 1909 ... 624 369

Admitted folio

Printed page

J. for Identification. Extracts from the Watch Tower (offered at fol. 722)

K. Certificate from Department of Agriculture

L. Certificate from Department of Agriculture

M. Certificate from Department of Agriculture

O. Report from Arlington Experimental Farm (offered at fol. 762)

P. Report from Arlington Experimental Farm (offered at fol. 762)

Q. Report from Arlington Experimental Farm (offered at fol. 762)

N. (continued). Report from Arlington Experimental Farm

M1. Letter accompanying report from Department of Agriculture, dated July 12, 1909

N. Page 4 of report marked Exhibit L (offered at fol. 748)

R. Extracts from Plaintiff's books (offered at fol. 833)

S. Extracts from the Watch Tower (offered at fol. 837)

U. Extract from the Watch Tower (offered at fol. 840)

V. Extracts from the Watch Tower (offered at fol. 842)

W. Extracts from the Watch Tower (offered at fol. 842)

X. Extract from the Watch Tower (offered at fol. 843)

Y. The "Good Hopes Plan" (offered at fol. 843)

viii.

Z. Two pages of extracts from 1907 report (offered at fol. 843) ... 414

AA. Extract from Watch Tower .. 846 420

BB. Extract from Watch Tower .. 846 421

CC. Extract from Watch Tower .. 847 422

SUPREME COURT

APPELLATE DIVISION—SECOND DEPARTMENT.

CHARLES T. RUSSELL, Appellant, vs.

THE BROOKLYN DAILY EAGLE, Respondent.

Statement Under Rule 41.

This action was commenced by the service of a summons and complaint upon the defendant on the 18th day of October, 1911. The defendant's answer was served herein on the 8th day of December, 1911.

The plaintiff appeared by his attorneys, Sparks and Fuller and Joseph F. Rutherford, and the defendant appeared by its attorneys, Dykman, Oeland & Kuhn.

There has been no change of parties or attorneys since the commencement of this action.

Notice of Appeal.

SUPREME COURT,

KINGS COUNTY.

CHARLES T. RUSSELL Plaintiff against

THE BROOKLYN DAILY EAGLE. Defendant.

Please take notice, that the plaintiff, Charles T. Russell, above-named, hereby appeals to the Appellate Division of the Supreme Court for the Second Department, from the judgment of this Court, entered herein in the office of the Clerk of the County of Kings, on or about the third day of February, 1913, in favor of the defendant and against the plaintiff and the said plaintiff hereby appeals from each and every part of said judgment as well as the whole thereof; and also from the order denying the motion made by the plaintiff for a new trial herein and to set aside the verdict rendered herein, which order was made and entered herein in the office of the Clerk of the County of Kings on or about the tenth day of February, 1913, and from each and every part of said order as well as the whole thereof.

Dated, February 25th, 1913.

SPARKS & FULLER,

Attorneys for Plaintiff-Appellant,

Office & P. O. Address,

44 Court Street,

Brooklyn Borough New York City.

To:

The County Clerk of Kings County. To:

Dykman, Oeland & Kuhn Attorneys for Defendant.

Summons.

SUPREME COURT,

KINGS COUNTY.

CHARLES T. RUSSELL, Plaintiff,

THE BROOKLYN DAILY EAGLE. Defendant.

To the above named Defendant :

You are hereby summoned to answer the complaint in this action, and to serve a copy of your answer on the plaintiff's attorneys within twenty days after the service of this summons, exclusive of the day of service; and in case of your failure to appear, or answer, judgment will be taken against you by default for the relief demanded in the complaint.

Dated October 9th, 1911.

SPARKS & FULLER, and JOSEPH F. RUTHERFORD Plaintiff's Attorneys,

Office and Post Office Address, No.44 Court Street Borough of Brooklyn City of New York.

Complaint.

SUPREME COURT,

KINGS COUNTY.

CHARLES T. RUSSELL, Plaintiff, vs.

THE BROOKLYN DAILY EAGLE, Defendant.

The plaintiff, by his attorneys, complaining of the defendant, respectfully shows and alleges:

FIRST: That at all the times hereinafter mentioned the defendant was and still is, a domestic corporation, duly organized and existing under and by virtue of the laws of the State of New York, and at all the times hereinafter mentioned was and still is, the publisher and owner of a newspaper published at the Borough of Brooklyn, City and State of New York, known as "The Brooklyn Daily Eagle," having a large general circulation in the State of New York and elsewhere, of at least twenty-five thousand (25,000).

SECOND: That at the time of the publication hereinafter mentioned, plaintiff was and still is, a resident of said Borough of Brooklyn, City of New York, and for more than thirty years last past, and at all the times hereinafter mentioned, plaintiff has been and still is, engaged in preaching the Gospel to the people of the United States of America and Europe and elsewhere; that he is now and for some time past has been, the regularly elected pastor of a large congregation of Christians at the Brooklyn Tabernacle, of the Borough of Brooklyn, City of New York, to whom he preaches at regular intervals and whom he serves as pastor, having assistants who represent him in his absence; that he is also, and for some time has been, the regularly elected pastor of a large congregation of Christian people at the London Tabernacle, of London, England, whom he serves as pastor, and to whom he preaches at stated intervals, having assistants there to represent him during his absence from said congregation, and that he is and for several years past has been, popularly and favorably known throughout the United States of America and Europe and other countries as "Pastor Russell," and is recognized and addressed by such title, he being the leader, teacher and pastor of thousands of Christian people who reside throughout said countries; that for many years past plaintiff has been and now is, the editor of a religious journal, known as "The Watch Tower," which is published twice each month and circulated throughout the United States, Canada and European countries and is read by thousands of Christian people in said countries; that his sermons are published each week in a large number of newspapers throughout the United States, Canada, Great Britain and Australia, and have been so published for a long space of time, and as such minister of the gospel, at the times hereinafter mentioned, and long prior thereto, plaintiff has borne a high reputation for honesty, integrity, fair dealing and truthfulness, and of being an honest and fearless preacher of the gospel of truth as set forth in the Holy Scriptures, and has always enjoyed the respect and confidence of the people in his own community and in the community at large, wherever his sermons have been heard or read; that he is and for many years past has been, the president of the Watch Tower Bible and Tract Society, a religious corporation, and president of the People's Pulpit Association, also a religious corporation, both of which said corporations are engaged in spreading the gospel and gen-

erally engaged in religious and philanthropic work for the betterment of mankind, and which said religious corporations receive their support, both moral and financial, from Christian people living throughout the United States and Canada; that for some years past plaintiff has regularly written for periodicals and magazines, religious articles dealing with Biblical questions, which have been published throughout the United States; that plaintiff is the author of a certain series of religious works or books, published in six volumes, and which are known as "Studies in the Scriptures," a large quantity, to wit: Six million volumes of which have been sold and placed in the hands of the people throughout the United States and foreign countries, which books are sold and distributed by the aforesaid religious corporations of which plaintiff is the president; that the good name, reputation and moral standing of plaintiff are absolutely essential to the proper and successful promulgation of the gospel in the manner adopted and used by him as aforesaid; that all of his publications, compositions and writings aforesaid have been devoted exclusively to religious questions and doctrines; that during the period of time herein mentioned he has given, and is now giving, all of his time, energy, influence and strength to the preaching of the Gospel, both orally and by the printed page, and as such preacher, pastor, teacher and author he has the respect, esteem and confidence of many thousands of people.

THIRD: That on, prior and subsequent to the 23rd day of September,1911,the defendant at divers times, published in its said newspaper,"The Brooklyn Daily Eagle," certain articles concerning the sale of a certain seed wheat then being sold in the Borough of Brooklyn, at the Brooklyn Tabernacle, of which the plaintiff was then pastor, at the price of one dollar ($1) per pound, in which said articles it was suggested, intimated or charged that said seed wheat which was generally known by and referred to in said articles under the name of "Miracle Wheat," was of no greater value than ordinary wheats which could be procured at a far lower price, and further suggesting, intimating or charging that claims were being advanced by the plaintiff that said wheat had peculiar virtues when used as seed, and further suggesting, intimating or charging that there was no substantial justification for such claims and that the plaintiff was directly interested in the sale of "Miracle Wheat" and derived a personal advantage therefrom.

FOURTH: That prior and subsequent to the 23rd day of September, 1911, the defendant at divers times published in its said newspaper, "The Brooklyn Daily Eagle," certain articles and cartoons or pictures concerning the conduct, management and existing conditions of a certain bank in said City of New York, known as the Union Bank, in which said articles it was charged or intimated that the directors, officers, managers or persons in some way connected with said Union Bank had violated their obligations to the depositors and patrons of said bank and that said directors, officers, managers or persons in some way connected therewith, were guilty of a violation of the laws of the State of New York and were criminally liable to prosecution for such misconduct, and that an investigation into the affairs of said bank was being conducted, and that the District Attorney of the County of Kings would present and had presented the facts concerning said Union Bank to the Grand Jury of Kings County and that it was rumored that said Grand Jury had returned five indictments in connection with the affairs of said bank for some criminal offense connected with the management of said bank and its affairs had become so malodorous that the defendant, in its said newspaper, named and designated said Union Bank as the "Onion Bank."

FIFTH: That on the 23rd day of September, 1911, and in the same issue of its said newspaper which contained an article concerning the official investigation into the affairs of said Union Bank, aforesaid, the defendant, contriving and fraudulently intending to injure the plaintiff in his good name, fame and reputation, maliciously composed, printed, published and circulated of and concerning the plaintiff, a certain picture, drawing, photograph or cartoon, with inscriptions thereon, together with a certain article and words in connection therewith, in its said newspaper, "The Brooklyn Daily Eagle," so published and circulated throughout the Borough of Brooklyn, City and State of New York, and other places throughout the world, a true and correct copy of which is as follows, to wit:

If Pastor Russell can get a dollar a pound for Miracle wheat, what could he have got for Miracle stocks and bonds as a director in the old Union Bank?

SIXTH: That the building shown in the picture, photograph, drawing or cartoon, aforesaid, is intended to represent and does represent the said Union Bank Building, and the words across the top of the door, to wit, "Onion Bank," represent and were intended by defendant to represent said Union Bank; that the figure of the man standing in the door of said building, as represented and shown upon said picture, photograph, drawing or cartoon, represents and was intended by defendant to represent, some director or officer or person connected with said Union Bank calling out to an old man who appears in the street as shown by said cartoon or picture; that the figure of said old man, as shown on said picture, photograph, drawing or cartoon, and which appears therefrom to be in the street in close proximity to said Union Bank, represents and was intended by defendant to represent the plaintiff herein, who, in said picture, photograph, drawing, cartoon and caricature, is represented as going through the streets carrying in his hand a package of "Miracle Wheat," and as a "street hawker" crying out his wares or goods for sale; and the words "You're wasting your time, come on in here," appearing on said picture, photograph, drawing or cartoon, represent and were intended by defendant to represent some officer of said Union Bank, or some person connected with said bank, calling to and inviting plaintiff to cease selling wheat and come on in the bank and join others in defrauding its depositors and patrons, that his, plaintiff's time could be much better employed in said bank and greater returns could be realized by plaintiff in engaging with those in the bank in "fleecing," cheating and defrauding its patrons and depositors; that the words "Easy Money Puzzle," appearing on said picture, photograph, drawing or cartoon, were intended by defendant to represent and do represent that both plaintiff and said Union Bank directors and officers were engaged in an unrighteous and unlawful scheme or business, and that plaintiff by misrepresentations, fraud and deception was obtaining "easy money" or dishonest money or tainted money, from the people; that in connection

with said picture, photograph, drawing or cartoon appear the following printed article or words: "If Pastor Russell (meaning plaintiff) can get a dollar a pound for Miracle Wheat, what could he (meaning plaintiff) have got for Miracle stocks and bonds as a director of the old Union Bank"; that by said entire drawing, caricature, cartoon, picture and print, and the words printed in connection therewith and as a part thereof, defendant meant and intended to show and charge, and did represent and charge, and it was so understood by those who saw it, that plaintiff as a minister of the gospel, as a pastor of religious congregations of Christian people, was selling said "Miracle Wheat" and as a "street hawker" was going about the streets selling the same at a large price, and was thereby de frauding the people and by the use of a fraudulent scheme, trick or misrepresentation plaintiff was wrongfully obtaining from the people, in an easy, slick, deceptive and fraudulent manner, large sums of money for his own personal gain, and that plaintiff, because of his cunning and ability to manipulate a dishonest scheme enabling him to sell wheat at one dollar per pound, was wasting his time in so selling wheat when he might associate himself with dishonest men and engage in the fraudulent sale of stocks and bonds and thereby reap a far greater amount of dishonest money, and that if he, plaintiff, as the pastor of a congregation of Christian people, could fraudulently induce people to pay one dollar per pound for Miracle wheat, he would succeed much better in engaging himself with a number of criminals in inducing the people to buy fraudulent stocks and bonds.

SEVENTH: That the statements and representations made, and attempted to be made and conveyed by said picture, drawing, caricature, cartoon or print and by various inscriptions that appear thereon, and by said words, article or reading matter published in connection therewith and as a part thereof, as aforesaid, were and are wholly false and were printed, edited, composed and published by the defendant maliciously and with a wrongful intent of injuring the plaintiff in his good name, fame and reputation and in his professional career as a minister of the gospel, as well as in his career as a teacher of the Scriptures and as an editor and author of religious writings as aforesaid and as president and representative of the religious societies as aforesaid, as well as his reputation among the people at large.

EIGHTH: That by reason of the foregoing, the plaintiff has been brought into scandal and reproach and has been held up to odium, scandal, disgrace and contempt among his neighbors, friends and the readers of his journal books and other writings and among his parishioners and members of his congregations, as well as his business and professional reputation as president of the religious societies aforesaid, and has received through the mails, insulting and insinuating letters and writings by reason thereof and has been seriously injured in his peace of mind and has been grievously disturbed and his feelings injured and has been held up to public ridicule and scorn, as a result of all of which plaintiff has suffered injury to his reputation, good name, fame and standing, all to his damage in the sum of one hundred thousand dollars.

Wherefore, the plaintiff demands judgment against the defendant for the sum of one hundred thousand dollars ($100,000) besides the costs of this action.

SPARKS & FULLER, and JOSEPH F. RUTHERFORD. Attorneys for Plaintiff,

Office & P. O. Address, 44 Court Street, Borough of Brooklyn, City of New York.

Complaint

State and City of New York,

County of Kings,

Edward W. Brenneisen, being duly sworn, says, that he is the agent of the plaintiff in this action and resides at No. 122 Columbia Heights, in the County of Kings.

That plaintiff's attorneys reside in the Borough of Brooklyn, County of Kings, and have their offices at No. 44 Court Street, in the said County of Kings, City and State of New York.

That all the material allegations of said complaint are within the personal knowledge of deponent and the foregoing complaint is true to the knowledge of deponent.

Deponent further says that the reason why this verification is not made by said plaintiff is, that said plaintiff is not within said County of Kings, being at the present time in Great Britain.

EDWARD W. BRENNEISEN.

Sworn to before me this 16

day of October, 1911.

Anthony H. Tuozzo,

Commissioner of Deeds,

for the City of New York.

Residing in the Borough of Brooklyn.

SUPREME COURT,

KINGS COUNTY.

THE BROOKLYN DAILY EAGLE, Defendant.

The defendant, by Dykman, Oeland & Kuhn, its attorneys, answers the complaint herein, as follows:

First: It denies each and every allegation contained in the paragraph of the complaint numbered "Second," except that it admits that plaintiff is recognized and addressed by the title of "Pastor Russell"; that the plaintiff has been and is the editor of a journal known as "The Watch Tower"; that the plaintiff is and for many years last past has been the president of The Watch Tower Bible and Tract Society, a corporation, and president of the People's Pulpit Association, a corporation; that the series of books known as "Studies in Scriptures" are sold by the aforesaid corporations, and that said corporations receive their support.

moral or financial, from people living throughout the United States and Canada; and excepting that it denies knowledge or information sufficient to form a belief as to the truth of each and every of the allegations that at the time of the publication alleged in the complaint plaintiff was or still is a resident of the Borough of Brooklyn, City of New York; that he is or has been regularly elected pastor of a congregation of Christians or other persons at the "Brooklyn Tabernacle," of the Borough of Brooklyn, City of New York, or at any other place, whom he serves as pastor;

that he has assistants who represent him in his absence; that said journal known as "The Watch Tower" is published twice each month or circulated throughout the United States, Canada or European countries, or read by thousands of Christian people in said countries.

Second: It denies each and every allegation contained in the paragraph thereof numbered "Third," except that it admits that on, prior and subsequent to the 23rd day of September, 1911, the defendant, at divers times, published in its said newspaper, The Brooklyn Daily Eagle, certain articles concerning the sale of certain seed wheat then being sold in the Borough of Brooklyn, at the "Brooklyn Tabernacle," of which plaintiff was then "pastor," at the price of One ($1.00) dollar a pound, in which said articles it was suggested, intimated and charged that said seed wheat, which was generally known by and referred to in said articles under the name of "Miracle Wheat" was of no greater value than ordinary seed wheat which could be procured at a far lower price; and further suggesting, intimating and charging that claims were being advanced by the plaintiff that said wheat had peculiar virtues when used as seed; and further suggesting, intimating and charging that there was no substantial justification for such claims.

Third: It denies each and every allegation contained in the paragraph thereof numbered "Fifth," excepting that it admits that on the 23rd day of September, 1911, and in the same issue of its newspaper, which contained an article concerning the official investigation into the affairs of the Union Bank, defendant published a certain picture, drawing, photograph or cartoon, with inscriptions thereof, a copy of which is set forth in the paragraph numbered "Fifth" of said complaint, and that in connection therewith in said The Brooklyn Daily Eagle, a newspaper published and circulated throughout the Borough of Brooklyn, City and State of New York, and other places throughout the world, it published the following words:

"If Pastor Russell can get a dollar a pound for Miracle Wheat, what could he get for Miracle stocks and bonds as a director in the old Union Bank?"

Fourth: It denies each and every allegation contained in the paragraph of the complaint numbered "Sixth," excepting that it admits that in connection with said picture, drawing, photograph or cartoon appeared the following printed articles or words:

"If Pastor Russell can get a dollar a pound for Miracle Wheat, what could he have got for Miracle stocks and bonds as a director of the old Union Bank?"

Fifth: It denies each and every allegation contained in the paragraphs thereof numbered "Seventh" and "Eighth."

Sixth: For a separate and further defense, defendant, answering each and every one of the innuendoes set up and set forth by the complaint in the paragraph of the complaint numbered "Sixth," denies the meaning attributed by the plaintiff to each and every portion of the article and alleges that the words used by the defendant in said article had not and have not the meaning ascribed to them by the plaintiff.

Seventh: For a further and separate defense, and in justification, defendant alleges, upon information and belief, that each and every of the statements set forth in said article complained of were and are true and that each and every one of the following allegations were and are true:

That the plaintiff is and has been for a long time the controlling and dominating power in certain corporations known as the "Watch Tower Bible and Tract Society" and the "People's Pulpit Association."

That he dictates, and has for a long time dictated, the actions and conduct of said corporations, and the executive boards thereof do, and for a long time have done, his will. That in said Watch Tower Bible and Tract Society, a business corporation, he holds, dominates or controls, and has for a long time held, dominated or controlled a majority of the voting shares of said corporation.

That through the medium of said corporations by the issuing, publishing and distributing vast quantities of printed matter, arranging for and providing speakers and lecturers on Biblical subjects, and in other ways, plaintiff has denounced and criticized all religions in the interest of a so-called religion or cult claimed to have been invented by himself called the "Millenial Dawn" or "Russelism," the central tenet of the so-called "Millenial Dawn" or "Russelism" being that the world as it is now constituted will come to an end in October, 1914. By reason of the aforesaid great numbers of persons, believing that the end of the material world is near and that only through "sacrifice" of their material substance they can become of what he calls the "elect" under what he calls the "New Dispensation," have turned over their property to plaintiff and said corporations, in preparation for the end. Many of the said persons have given their property to plaintiff and said corporations, outright, and received assurances from plaintiff that they would receive interest thereon as long as they should live. Others have made wills, giving, devising and bequeathing property to him. Others, influenced in the manner aforesaid, have been persuaded by him to pledge and pay money for advertising plaintiff and said so-called religion, and by virtue of a skilfully worded clause in the printed pledge, they have been asked by him to sign, the money is made available for any purpose to which plaintiff, the president and controlling influence of said corporations, chooses to apply it.

Through the means aforesaid, plaintiff has urged his followers to pay him their money to spread his doctrines and advertise himself, exhorting that "The heavenly things are to be attained only by those who sacrifice earthly things." Much of the money that has been received by plaintiff in this way has been invested in real estate, mining stocks and various speculative enterprises, the investments having been made in the name of dummy corporations, partnerships and associations, or through other persons acting as secret representatives or dummies for plaintiff. Plaintiff's said operations have extended until they cover every state in the United States as well as many countries in Europe.

On or about June 15, 1911, plaintiff caused to be published in a journal known as "The Watch Tower," of which journal plaintiff was editor, and said Watch Tower Bible and Tract Society, publisher—an advertisement in the words following:

"A Donation of Miracle Wheat.

Brother Bohnet writes us that he has gradually accumulated a crop of miracle wheat from the few grains he obtained as a start. He prefers that the first opportunity for obtaining this wheat shall go to The Watch Tower readers. He will sell it for $1 per pound, including postage, and give the entire proceeds to our Society. All orders for this wheat should be addressed, Miracle Wheat Bohnet, 17 Hicks Street. Brooklyn, N. Y. This will keep mail on this subject separate from his personal mail and from ours.

Brother Bohnet promises to be ready to ship this wheat by August 1. He says miracle wheat should be sowed one-fourth as thick as common wheat. Ordinarily it should produce from ten to fifteen times as much proportionately to the amount sown.

To save keeping account, money should accompany the order. Watch Tower readers will have the preference up to August 15, after which orders will be attended to indiscrimately, so long as the supply holds out. This wheat should be sown in the fall."

That said seed wheat was of no greater value than ordinary seed wheat which could be procured for a far lower price and had no peculiar virtue when used as seed. That there was nothing miraculous about said so-called and so advertised "Miracle Wheat."

That large quantities of said so-called "Miracle Wheat" were sold with the aid, connivance, consent and procurement of plaintiff and at the "Brooklyn Tabernacle," controlled by plaintiff, in the Borough of Brooklyn, City of New York, during the month of September, 1911, with and because of the understanding on the part of the purchasers of same, that the entire proceeds from such sales would be given to said Watch Tower Bible and Tract Society and that thereby they would be rewarded after death, and also, because of the state of mind into which they had been put through the teachings of plaintiff and said corporations, that said "Miracle Wheat" possessed supernatural qualities.

Eighth: As a separate and partial defense and in mitigation of any damage to which plaintiff might otherwise be entitled, defendant re-alleges all and singular the matters stated in paragraph "Seventh" thereof, as if herein set forth at length, and further alleges that it employs expert and well qualified newspaper reporters, cartoonists and writers; that the article complained of was prepared by an expert and well qualified newspaper writer and an expert and well qualified cartoonist; that said article complained of was founded upon information which came to the defendant in the ordinary and regular channels of its business; that said article complained of was published by the defendant in the ordinary course of its business without malice on the part of the writer of the article complained of, of the cartoonist or upon the part of the publishers or printers of said article; that the defendant received the information and matter contained in the article complained of from trustworthy and reliable sources and in publishing said article it acted in good faith and not carelessly, maliciously or wantonly and in publishing said article the defendant had reason to and did believe the information received and published it to be true.

Ninth: As a separate and further defense, defendant re-alleges the allegations contained in the paragraph hereof numbered "Seventh," and further alleges that said article complained of was inserted by this defendant in its newspaper as an item of public news, public interest and public concern, without malice, and was and is a fair, honest and true criticism of the conduct of plaintiff and is proper and privileged.

Tenth: And as a separate and further partial defense and in mitigation of any damages to which plaintiff might otherwise be entitled, defendant repeats and reiterates all and singular the matters stated in the paragraphs hereof numbered "Seventh" and "Eighth," and gives notice that it will give evidence thereof as a partial defense in mitigation of damages as well as in justification upon the trial of this action.

Wherefore, defendant demands that the complaint herein be dismissed, with costs.

DYKMAN, OELAND & KUHN Attorneys for Defendant,

Office & Post Office Address, 177 Montague Street, Brooklyn, N. Y.

Verification.

Extract from Minutes.

At a Trial Term of the Supreme Court of the State of New York, held in and for Kings County, at the Court House in the Borough of Brooklyn, on the 20th. 21st, 22nd, 23rd, 24th, 27th and 28th days of January, 1913.

Present: Hon. Charles H. Kelby, Justice.

CHARLES T. RUSSELL,

vs

BROOKLYN DAILY EAGLE.

#6439.

Part Three.

This cause having been called for trial in its order on the Calendar, and twelve trial jurors having been duly drawn, empanelled and sworn to try the same, the jury come into court and say that they find a verdict for the defendant.

Motion to set aside verdict and for a new trial upon all the grounds specified in Section 999 of the Code of Civil Procedure made by counsel for plaintiff, and denied.

Thirty days' stay of execution after service of notice of entry of judgment and sixty days in which to prepare and serve a case on appeal granted to plaintiff.

February 5th,1913. Kelby, J. Order denying motion to set aside verdict and for a new trial signed.

An Extract from the Minutes.

CHAS. S. DEVOY Clerk.

SUPREME COURT OF THE STATE OF NEW YORK,

COUNTY OF KINGS.

CHARLES T. RUSSELL,

Plaintiff,

against

THE BROOKLYN DAILY EAGLE. Defendant.

The above entitled action having duly come on for trial and having been tried at a Trial Term, Part III of this Court, on the 22nd, 23rd, 24th, 25th, 27th and 28th days of January, 1913, before Mr. Justice Char H. Kelby and a jury, and the jury having duly rendered verdict in favor of the defendant and against the plaintiff, and the costs of the defendant having been duly adjusted at the sum of One hundred fifteen and 57/100 Dollars;

Now, on motion of Dykman, Oeland & Kuhn, attorneys for defendant, it is

Adjudged, that the plaintiff recover nothing of the defendant and that the defendant The Brooklyn Daily Eagle recover of the plaintiff Charles T. Russell the sum of One hundred fifteen and 57/100 dollars, its costs as taxed and have execution therefor.

Judgment signed and entered this 3rd day of February, 1913.

CHARLES S. DEVOY.

Clerk.

Order Denying Motion for New Trial.

At a Trial Term, Part III of the Supreme Court, of the State of New York, held in and for the County of Kings, at the County Court House, in the Borough of Brooklyn, City of New York, on the 10th day of February, 1913.

Present: Hon. Charles H. Kelby, Justice.

CHARLES T. RUSSELL, Plaintiff, vs.

THE BROOKLYN DAILY EAGLE, Defendant.

The issues in this action having come on for trial before the Hon. Charles H. Kelby and a jury, at a Trial Term of this Court, Part III, held at the Court House, in the Borough of Brooklyn, City of New York, on the 22nd day of January, 1913, and continued on the 23rd, 24th, 25th, 27th, 28th days of January 1913, and the jury on the said 28th day of January, 1913, having rendered a verdict in favor of the defendant and against the plaintiff, and the plaintiff having made a motion to set aside the verdict and for a new trial on all the grounds stated in Section 999 of the Code of Civil Procedure, and after hearing Frederick W. Sparks, of counsel, in support of said motion, and Isaac R. Oeland, of counsel, in opposition thereto, and due deliberation having been had thereon;

Now, on motion of Dykman, Oeland & Kuhn, attorneys for the defendant herein, it is

Ordered, that the said motion be and it hereby is in all respects denied.

Enter,

C. H. K., J. S. C.

Granted, Feb. 10, 1913. Charles S. Devoy, Clerk.

NEW YORK SUPREME COURT. KINGS COUNTY.

CHARLES T. RUSSELL, vs.

THE BROOKLYN DAILY EAGLE.

Brooklyn, January 20, 1913.

Before Hon. C. H. Kelby, J., and a jury.

Appearances:

For plaintiff: Messrs. Sparks & Fuller; Frederick W. Sparks, Esq., Joseph F. Rutherford, Esq., of counsel.

For defendant: Messrs. Dykman, Oeland & Kuhn, Isaac R. Oeland, Esq., of counsel.

A jury is empanelled and sworn.

Adjourned to January 21, 1913, at 10 A. M.

72 Trial resumed January 21, 1913.

Mr. Sparks opens the case on behalf of the plaintiff.

Mr. Oeland opens the case on behalf of the defendant.

KENT B. STONER, Fincastle, Virginia, sworn and examined as a witness on behalf of the plaintiff, testified as follows:

By Mr. Sparks:

I am a resident of Virginia and a veteran of the Civil War, on the Confederate side. I don't know that I could say that I have an occupation.

I own some land in Virginia. I own in the county seat in which I live seven acres of land. I own a considerable amount of mineral land. I don't own a farm. In the year 1904 my attention was called to a certain plant in my garden which afterwards proved to be wheat. My son called my attention to it first. I examined it. I looked at it. I cannot say that—it was under these circumstances. I have a garden of about an acre. The plowman came to plow the garden and my boy said he saw an unusual plant, which he took to be what is called with us a parlor grass, a coarse grass, an ornamental grass. This boy thought it was a stalk of parlor grass, what is known with us as parlor grass, a coarse ornamental grass; and asked that I direct the plowman not to plow it up. I did so.

Q. Did that plant head out some time in May? A.

Yes. It headed out the last of May.

It proved to be a plant of wheat. That original plant had one hundred and forty-two heads. I did not discover that plant in answer to any prayer sent up to discover it. I do not know who circulated the story that the plant was discovered in answer to prayer.

Q. You did not circulate that? A. I did not, sir.

I harvested that plant when it ripened and saved the seed of the plant. This plant had one hundred and forty-two heads. It was attacked by sparrows. I don't know whether you people up in this country have English sparrows or not. We have a great many with us. I got from that about twenty-five hundred grains only, because there was about half of it eaten out by sparrows. There was over four thousand grains to the stalk, each particular plant. However, I did not get more than twenty-five hundred. I planted eighteen hundred grains of that seed in the fall of 1904. The other I kept for fear I would lose it.

That eighteen hundred grains made a little bit over forty-five pounds.

Q. How many grains did you get for each of the eighteen hundred grains planted? A.I got about two hundred and fifty.

Q. That is, you got two hundred and fifty grains for each grain that you planted? A. Yes,sir.

Q. What is the ordinary yield of ordinary wheat for one grain, how many grains do you generally get? A. Well, that would be a difficult question to answer. It would depend upon how you planted.

Q. Do you know what the average yield of ordinary wheat is? A. Yes, sir.

Q. Will you state what the ordinary proportion is, as the seed is now sown in this country? A. Oh, well—

Mr. Oeland: As Mr. Stoner is not an experienced farmer, I object to it.

The Witness: I have been on a farm all my life, and on land all my life. I have owned farms. I was born on a farm, and been over sixty years on a farm. I cannot say that either. I mean interested in lands. I have been a merchant also.

The Court: Can you tell us from your own experience what the multiplication of grain was in Virginia on your place?

The Witness: Yes, sir. It was about ten.

Q. For one, grain? A. That is, a farmer would put in a bushel and a half and get fifteen bushels. That is the average.

Q. That amount in grains. You plant one grain and the return is ten grains? A. Yes, I suppose so. I mean simply, he gets ten grains for each one he sows.

We saved that wheat up until we got eight hundred bushels of it, and we lost the whole of that.

Q. Did you sell any part of the wheat that you raised from this original stalk? A. Oh, no, no, sir.

Q. Dr. Carlton, didn't you sell some to him? A. Dr. Carlton?

Q. Yes. A. Well, now, when I answered "no," if I sold any from the original stalk, I presumed that you questioned me about whether I sold any of the first grains from the stalk.

Q. No, I mean as it multiplied? A. Oh,the result yes. Yes, I sold that.

Q. What was your price per pound for the wheat?

A. I got one dollar and twenty-five for all I sold.

Q. Excluding the sales in 1911, what was your price for that wheat prior to 1911? A. We had never offered the wheat for sale by the bushel, I think, until 1910.

Q. Prior to issuing the pamphlet which you issued in connection with Mr. Knight, what was— A. That, I think, was in 1910.

Q. Whatever year that was, prior to that time, what was your price for it? A. One dollar and twenty-five per pound.

Q. Always sold it at that price? A. Yes. I have no recollection of selling it at any other price. I don't think I did. I sold some to Dr. Carlton. I think, four pounds. The only reason I remember that distinctly is because we put in our regular wheat book his certificate.

Q. Did you have a government expert come down and investigate this wheat? A. Yes, sir. He was there two years.

Q. Who named this wheat "Miracle Wheat," if you know? A. Well, after raising the wheat, perhaps as much as two years, it was suggested the propriety of giving it a name. A good many names were suggested, and finally I adopted the name "Miracle Wheat." I don't know who first suggested the words, "Miracle Wheat."

Q. Do you know whether Pastor Russell ever suggested that you name it "Miracle Wheat"? A. I never saw Pastor Russell in my life until this morning, and never had any correspondence with him in any way. I had no suggestion from him at all. Whoever named it was some person connected with me who was interested in the wheat. That is my impression.

Q. Did you enter into an agreement with Mr. Knight not to place the wheat on the market until a certain period had elapsed and until you had accumulated a certain amount? A. I had sold a forty-five per cent interest in this wheat, and that forty-five per cent interest was in this wheat which now belongs to Mr. Knight. I had sold the wheat by the pound, you understand, before I had ever met Mr. Knight or before Mr. Knight had become interested in the wheat. I want to make that plain, for fear I will get wrong in the dates. I only want to state what is true, so far as I know what is true, and can remember; but I am not a young man any more, and my memory is not as good as it has been, you understand.

Q. After you sold that forty-five per cent interest, did you have an agreement with Mr. Knight? A. Yes, sir. We had a verbal agreement to that effect, and so far as I know, I kept my part of the agreement. I don't think I sold any. That verbal agreement was that we should not sell any of this wheat to any person at any price until this book was printed in 1910.

Q. That period was to extend for a period of three years? A. Well, now, I cannot say just exactly what that period is; I don't remember just when Mr. Knight came in possession of this interest that I sold to Mr. McCormack, a man who had robbed us—who robbed the Knights as well as ourselves. What was done by him, I cannot make any statement of because I don't know.

Q.

When was it you first sold the interest, in 1909? A. Well, I am not certain, but my impression is, to answer which year I would have to make a calculation in my book over the sowing. I suppose I sold to McCormack in 1907. However, I will only state that as to the best of my knowledge and belief. I am not sure.

Q. From the time you sold the interest, no matter what year it was in, down to the time that you issued the circular, you did not sell any of that wheat at any A. No, I cannot say that. You see, there may be an intervening space of time between the sale to McCormack and my meeting Mr. Knight, don't you see. I do not suppose I met Mr. Knight until 1908. I presume I met Mr. Knight in 1908. I think so. I am not absolutely certain.

Q. And it was with Mr. Knight you had your agreement not to put the wheat upon the market at any price? A. Yes. Prior to that time, 1908, or the date I first met Mr. Knight and made this agreement, I had been selling wheat for a dollar twenty-five a pound.

Q. And that was the lowest price that you had ever sold it at? A.I think so.

I planted that wheat every year on my own premises in what is termed an experimental plot. My object was to see what spaces of ground would make the best plant, the most productive plant. However, in the meantime it was sowed on farms in my county, people that were raising wheat for me, you understand. That is, I loaned them the seed. I simply would select my man and loan my seed with this understanding or this contract, that he owed me the amount of seed I loaned him, returnable at harvest. That wheat was mine if I paid him the cash price of milling wheat. He planted the wheat for me and I took it off his hands, all that he raised, at a certain price. It was my wheat if I paid for it, and I paid for it, of course.

I continued to take all the wheat that my farmers raised.

Q. What is the difference between this wheat and the ordinary seed wheat? A. Well, we claim that the difference is its productiveness. We claim that a peck of it will seed an acre.

Q. That is, fifteen pounds? A. Yes.

Q. And get what yield? A. Well, that would depend, of course, upon the land.

Q. I am speaking generally of the average land? A. Well, we have made here in New Jersey a peck to the acre over forty bushels.

Q. What is the ordinary seeding of wheat to the acre? A. Well, I presume it about from a bushel and a half to two bushels. The average yield in the United States ordinary wheat, bushel and a half to two bushels, never exceeded fifteen bushels to the acre.

Q. So that this wheat will produce forty bushels to the acre sown fifteen—

Mr. Oeland: That is objected to.

Mr. Sparks: Let me finish the question.

Mr. Oeland: But I object to the last question. I should have done it before. He is stating the comparison of the average growth. He says the average yield of the United States.

I move to strike out the last answer.

The Court: Yes. I think it is an unfair comparison.

Plaintiff excepts.

Q. Are you speaking of your comparison of land, the ordinary land, where you raise forty bushels to the acre? A. I am speaking of the peck to the acre of wheat made here in New Jersey.

Q. And the character of the land? A. I don't know the character of the land at all. I never saw it. I just heard that on the certificate to that effect.

Mr. Oeland: Then I move to strike that out. He says it is upon what some other person had done.

The Court: I think that is so. He says he knows nothing about it, except from a certificate.

The Witness: That is all I know.

The Court: I will strike out that last testimony, on the ground that it appears that the witness's knowledge is derived from some certificate of someone else, and not his personal knowledge.

Plaintiff excepts.

Q. Now, your own personal knowledge, what is the maximum yield that you know of, of your own personal knowledge of this wheat? A. Well, sir, I have grown plants, I suppose, as many as two thousand, possibly three thousand in experimenting, plants that would average twelve hundred grains to the plant.

Q. What does that make an acre? A. Well, I think that would make about eighty bushels.

Q. How much? A.I think about eighty bushels.

Q. Eighty bushels? A. Yes, sir; nine pounds to the acre.

Q. What is the stooling quality of this wheat? A. Well—

Q. You might explain to the court and jury, for I assume they do not know what "stooling quality" is, just what it is? A. I will endeavor to explain it in this way, your Honor. We would say that a seed would start there and come up and make one stem, and another seed would come up and make fifty or one hundred stems. One is considered more stools, and the other is not. Do you get that? One wheat will send up, perhaps, one grain, or one stalk, and another will send up one hundred stalks.

Q. And that large stooling quality of this wheat is the cause of its productiveness? A. That is all that we claim.

Q. The ordinary wheat planted one grain, what is the stooling quality of that, the average? A. Well, that would depend upon the space, just as this would.

Q. When I ask these questions, I am asking for the general method of painting as wheat is generally planted in this country, the ordinary wheat. What is it its stools? A. Well, now, the only way I could answer that question fairly would be this. I think that would depend upon the space. I cannot answer it any other way. No other way would be true.

The Court: What wheat is used in your country?

The Witness: Well, we use our wheat, it is called Red Wonder, we use the Fuldz, and we use the old Mediterranean wheat. Those three, I believe, are the common wheats.

By Mr. Sparks:

Q. Take the best one. Which is the best one, in your judgment? A.I think, perhaps,the Red Wonder is the best.

Q. Take the Red Wonder wheat. What is the best stooling that you have seen in a single grain of that wheat in your country grown under the most favorable circumstances? A. Your question is, what is the biggest plant I ever saw there. To the stool, do you mean, to the plant?

Q. I mean the individual plant? A. A single plant. I have no recollection of ever seeing a plant of that wheat have as much as seven heads.

The Court: What is the largest number you did see, is the question.

The Witness: Well, I don't know that I ever saw over five. The largest that we have grown from Miracle wheat was over three thousand grains to a plant.

I don't think I have ever seen over five heads from any grown of ordinary wheat. This original plant of Miracle wheat had one hundred and forty-two heads. The largest plant I ever had was one hundred and sixty-seven heads. I have a stub of a plant here with me, all I could put in my valise. This is a stool of our wheat, Miracle wheat. I think there is, perhaps, something over seventy stalks in this plant.

Q. Have you any memorandum of that stool that will refresh your recollection? A. No, sir. That was not brought for the number. That is a four inch square paper. I brought that simply to show that you cannot grow this wheat as other wheat is grown. That is my object. If you set that stool of wheat on that four inch stand—you understand that is perfectly dry and tied together. It was in the valise. That shows you cannot grow that wheat as other wheat is grown. That is our contention.

Q. Then in order to get the maximum yield from this wheat, you must give it more room than you give the ordinary wheat? A. Yes, sir, I have always contended, I have always said to the farmer, "if you intend to sow it as other wheats is sown, it will be a failure and not a success, and I advise you not to buy it." The idea is the more room you give it the greater the stooling qualities you get. We advise this wheat to be sowed with one-half the spouts of drill closed. A drill is made with spouts every seven or eight inches. At least, I never saw any drill spouts unless they were spaced seven or eight inches apart. Now, that wheat comes down and if it is in an eight inch drill, you understand, the rows between this wheat are eight inches wide. Now, in stopping every other spout we get sixteen inches. That is our object in closing it. If we sow in the old way with that wheat it is a failure. We do not claim anything but failure in the result. Room is the essential. And one-fifth or onesixth of the amount of our wheat sown to the acre is a success, but if you sow even the amount of it that you sow of other wheat, or sow it in the way other wheat is sown, we do not claim any result for it at all.

Q. What do you advise in reference to how this wheat shall be sown?

Mr. Oeland: That is objected to as immaterial and irrelevant.

Objection overruled. Exception taken.

Q. What were your suggestions as to how this wheat should be sown?

Mr. Oeland: That is objected to.

The Court: The only trouble about this is, that apparently the answer you refer to refers to someone else, somebody named Bohnet.

Mr. Oeland: I understand that Mr. Bohnet himself is the one who raised this wheat that was sold, and not Mr. Stoner. Therefore, Mr. Stoner's advice could not have influenced the publication.

The Court: I think I will exclude it.

Plaintiff excepts.

The Court: Unless it can be identified as the same wheat.

Mr. Sparks: We propose to do that.

The Court: These instructions were given by someone other than this man.

Mr. Sparks: Received from him.

The Court: I would rather have Mr. Bohnet testify as to his directions as to the planting.

Mr. Sparks: It is conceded that it is the same wheat.

Mr. Oeland: Yes, I concede it is the same wheat.

The Court: I will sustain the objection on the ground that the representations pleaded relate to Mr. Bohnet's directions and not to this witness's.

Mr. Sparks: I take an exception.

Q. The idea is, that if you choke this wheat by planting it too close together, too thick in the planting, this will not have a chance to stool out? A. Yes,sir.

Q. This plant (indicating) is a plant raised from a single grain? A. Yes, sir.

Q. And the one where you got one hundred and sixty-eight stalks was a plant from a single grain? A. One hundred and sixty-seven. That was a volunteer stalk of wheat that came up in my garden the same way. My object in bringing that plant was simply to show that it is impossible to grow a plant of that size in a four by four inch space, such as the government uses in their experimental plants. The wider you plant the seed apart, the greater the stooling quality. I have been eight years in the effort to find out what is the smallest amount of space possible to produce the best plant.

Q. When you get the correct distance, the appearance of your field is a field of continuous stalks? A. Certainly.

Q. And the advantage of that, the greater yield and the cutting down of the amount of wheat which you sow to the acre? A. Yes, sir. The book shows the print of the standing wheat.

Mr. Sparks: I offer this plant in evidence.

Received and marked Exhibit 1.

Q. Are these three heads Miracle wheat? A. Yes, sir.

Q. Coming from this plant? A. No, sir. I cannot say whether they come from this plant or not.

Q. But is this the ordinary size of the heads on Miracle wheat? A. Yes, sir. I have no objection in the world to telling you my reason for bringing it. I have nothing in the world to conceal, if you want to know it.

My reason was simply this. That Mr. Miller, in his report on that wheat, Mr. Miller is a cerealist or specialist from the Agricultural Department at Washington, he spoke of the heads averaging I brought them to show that they were the average heads according to his report, four and one-half inch heads.

Mr. Oeland: I object to that, and ask to strike it out.

The Court: Strike it out.

Plaintiff excepts.

Q. Now, independent of what Mr. Miller said about these heads being the average heads, will you state of your own knowledge, your own experience, whether these are the average heads of Miracle wheat? A. Those are the average heads, so far as I have raised the wheat, yes. I cannot claim that these heads of wheat would show any particular difference between that and any other bearded wheat heads. They might show the straws different; but I don't know that the heads would be very different. Then it is a three mesh head. If it was a two mesh, of course, there would be that difference. The ordinary mesh of ordinary wheat is two grains. This is three. I think, perhaps, some of them is four, I am not sure. You can tell. I think four, maybe. But my object was the length, and not anything else.

Q. In reference to the length of the heads, are these heads not longer than the ordinary head of wheat?

Mr. Oeland: I object to counsel leading his witness. He has said it was the average head of bearded wheat.

The Court: What is the fact as to ordinary wheat grown in your country as compared with this wheat, as to the length of the head?

The Witness: It is smaller.

Q. How much, would you say? A. Well, I cannot see any way in the wide world that I could give a statement that would give any information except upon the ground upon which you have objected to that statement.

Q. I haven't objected. Judge Oeland may, but until he does, will you answer the question? A. Well, we sow down in our country from a bushel and a half to two bushels and over to the acre of ordinary wheat; and we are very thankful if we can get fifteen bushels. Then we know that we do not get over ten to one. That is the only way in the world I see that I can answer it. Now, to say that we would go into that wheat field, we would not find every head of wheat in there, you understand, the same length at all. We could get an average. We could do no more.

Mr. Sparks: I offer these three heads of wheat in evidence.

Received and marked Exhibit 2.

CROSS-EXAMINATION by Mr. Oeland:

Q. You have never made any claim at all that this wheat was of miraculous origin, have you? A. Well, let me see now that I understand that question.

Q. You understand what a miracle is, don't you? You have read the Bible lots? A. Yes, I think so.

Q. That is what I am talking about, that it came as a result of prayer or something. A. No, no, I have never made that claim.

Q. I want to get from you that you do not claim that this wheat—when I use "miraculous origin" I mean it was the result of prayer or something like that. A. I never made that claim.

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