Evening star. [volume] (Washington, D.C.) 1854-1972, 1890-12-22

| 'MNI%T97 MN on Adler was not bene-
| Wy NKy fcialbutinjurious. Coun-
w sci were early present
| . CHAPLIN BROWN. The full array of the de-
Tense, Judge Wilson. Senator Blackburn. Mr.
Coleman, Mr.. Chaplin Brown and Mr. Duhamel,
all taking seats at the counsel table promptly.
as II ready for field day. District Attorney
Hoge and Mr.. Clagett were equally prompt
The morning was taken up in argument "a to
| the proper form and admissibility of the nv
pothetical question framed by the defense to
be propounded to DIR. Kempster, the witness
| called as an expert in insanity.
QUESTIONING THE PoLICENEN's STORIES
When the court adjourned Saturday after
noon DIR. Walter Kempster, the expert on in
sanity, WINS on the stand. The def ense had
propounded a long hypothetical question
| covering the facts relating to Wards case ac-
| cordlnS to the theory of the defense To this
| question the prosecution had objected and the
| court adjourned to permit the district attorney
| and his assistants to examine the question.
Mr. Wilson. before taking up the question,
called attention to the fact that he had re-
| served the right to further cross-examine Po-
!icemen Hughes and Hamilton as to what Ward
had stated when arrested. Mr.. Wilson said
| thcy desired to get the testimony of Mr.. John
W Drew. newspaper reporter. but Mr. Drew
was too Ill to appear. They wanted to show by
Mr.. Drew that the police officers had told him
after the arrest and again the next day what
Ward had said, and that these statements diff
fered from the testimony of the officers on the
trial. He proposed that the testimony of Mr.
Drew taken in the bail proceedings should be
| read
The District attorney. however. objected to
this, as in those proceedings al that was under
taken to be shown was that there was a prima
facie case, and the examination was not as
searching as it would have been If the issue then
had been more serious one. This objection
WAS not combatcd.
THAT HYPOTHETICAL QUESTION.
DR.. Kempster was then called into the wit
ness box. District Attorney Hoge rose with
copy Of the hypothetical question of the de-
Tense in his hand. He enforced his objection
made saturday evening by referring to the case
of Eairchild against Bascom. reported in 3jth
Vermont beginning at page 1913. In this de-
cision the court said that The hypothetical ques-
ton should be SO modified by the court as to
not permit the witness to pass. in any way or
give any opinion as to the merits or facts
of the case. The district attorney said that in
respect to the facts alleged by the defense there
would be rebuttinS testimony still to be heard
which should be considered in passing any ex-
pert opinion. He referred to various state
ments il the hypothetical question. which. he
claimed. were misleading. rs they omitted i'm
portant circumstances which, in the view of
the government, greatly modified the case.
There were facts omitted, he stated. which
tended to explain naturally excitement shown
on various occasions. There was no question.
be urged, that n witness called to testify as TO
the important matter of mans sanity or in
sanity should know every fact bearing on the
questions. There was no testimony. medical or
otherwise. that Ward had dclirium tremens
Tn" words of Witnesses were ION the verge of
dclirium tremens
As to the manner in which the defense in it,
hypothesis had stated the circumstances imme-
| mediately connected with the shooting. the
Ii, t,..,,S II
| facts, showing motive and animus, were omit
ted. The danger of a hypothetical question.
| he said, was that the witness should assume the
function of the jury and pass upon the facts.
| 1t was important that every point that shaded
| the case in the slightest way should be pre-
| sented to a witness whose opinion on them
would be regarded as having greater weight
than the opinion of layman.
Mr.. Blackburn said il the views of the district
| attorney were to prevail the defense would be
Obliged to Incorporate in its question every
| atom of evidence. He urged that the district
| attorney could in cross-examination frame
questions which would bring out the facts as
| they were conceived to exist by the govern
| ment. He did not understand that the defense
was called upon to frame. in its questions all
the statements that the government would like
to have incorporated. The government. he
said. had the right in rebutting testimony or in
| cross-eXaminatiOn to frame as many hypothet-
lcal questions AZ 1t pleased.
THE CHIEF JUSTICES VIEW.
Chief Justice Bingham said the court was of
the impression that the proper practice would
be to include in substance the evidence or a fair
presentation of all the circum stances 1t struck
| the mind of the court upon hearing the cues
ton read Saturday that there were facts
omitted that should have been included in order
| to make fair presentation of the case.
Mr.. Blackburn said that where differences of
recollection as to evidence occurred he did not
t1h
| a question of this character.
| Mr.. Coleman for the defense said that the
practice WAS that one party could frame its
| question as it conceived the facts TO be, taking
the risk as to whether the facts were fairly
| stated then the other side could in cross-ex-
animation add such other statements AZ thew
deemed necessary. and get the opinion of the
witness on the state of facts modified: and
| it was for the jury to decide whether the facts
| were fairly stated.
Mr. Wilson argued that tho experts could not
decide the case for the jury. The testimony
went TO the jury, together with all the other
timony. and the jury had the facts and had the
testimony. The jury weighed the opinion of
the expert by referring to the facts as they had
| been stated to the expert.
| Mr.. ClaSett said that il could not be intended
| that Il hypothetical question could include as
statements of facts matters tl...l did not appear
in the evidence. He held that in this case
| there were statements not borne out by the
| evidence.
| Tho district attorney differed with Mr.. Will
| son to the statement that expert testimonv
| was the same as other testimony. He said it
| was extraordinary testimony.
| THE QUESTION ALLOWED.
Judge Bingham, after further argument said
that according to his own recollection the
course suggested by the defense that the party
| introducing the witness should frame the aues-
| ton at its own peril. was followed. The court
he thought. should look into the question only
| so far TO see that no matters were stated
| which bad not been proved.
Proceeding, Judge Bingham referred to the
fact that government might yet introduce re-
butting testimony, which might change the
| opinion of the jury as to the state of facts. lie
| considered that the only feasible plan was to
permit counsel to frame the hypothetical ques-
ton at their own peril. the witness being sub
ject to free and fun cross examination and the
| matter being still left open to argument to the
Jury as to whether the facts were fairly pre-
| sented.
1t was then II o'clock. Counsel for defense
| spent few minutes amending their hypothet-
| ical question and then read it to the witness
| again. This question assumed all the various
| eccentric acts of Ward testified to by witnesses
his previous business habits, &c. At the close
of the long hypothesis the question was put:
Assuming the above statement to be true.
what in your opinion was the mental condition
| of the person on the night of June Is between
| the hours of 8 and 10, and to what degree was
| H. for, Il, nc