Evening star. [volume] (Washington, D.C.) 1854-1972, 1900-01-26
Physicians Called as Witnesses in the
Smell Trial
MENTAL CONDITION OF DEFENDANT
Heated CoIIoquy Between Attor-
neys Over an Interogatory
HYPOTHETICAL QUESTIONS


testify increased. as demonstrated by
much larger attendance. the ninth day of
the trial of Benjamin H. Smell, for the muir
der of Lizzie Weisenberger. began this
morning bef1-e Justice Clabaugh in Grim
. iraI Court No. l. Since yesterday
counsel have come to the conclusion
that the hearing will not be con-
cluded this week, the opinion today being
that a verdict cannot reasonably be ex-
pected prior to Wednesday next.
Among the spectators were many women.
The conditions. regards the Weisenber-
ger family and the defendant remained I'M
changed. Ms. weisenberger and Emma
and Carrie Weisenberger, conspicuous by
reason of their attire. denoting deep mourn
ing, were present, as usual. With them
was Mr.. WeiSenberger and little Henry
Not a word spoken by counsel, court or
witness escaped them Mrs. Smell occupied
chair so close to her husband that their
arms touched Blanche Smell Daniels was
in the first row of seats, near her parents.
The father and mother of the defendant
were not at court today. Mrs. Smell. senior,
when she left the stand yesterday COM
planned of feeling ILL
The man on trial. for some time after the
opening of court. sat with head resting on
his hand and with eyes closed tight. Later
he resumed the staring which has charac-
teriZed his attitude on other days.
An army OF physicians and experts was
aligned across the room. directly IN the
rear of counsel. - With the attorneys for
Smell was d.. Irving Ross, expert, well
known and particularly remembered by rea-
son of his testimony during the Guiteau
trial. Near the prosecuting attorneys We're
Dr. John Chaplin of Philadelphia, who tes-
titled during the trial OF Howard Schnef-
der DR. D. X Shute, physician at the
District jail: Dr. l.. w Glazebrook. deputy
coroner. Dr. 4Emmons and others. Among
the spectators were several other local ply
sic.ans.
800 Hypothetical Question.
After The Stars report of the trial yes
,erday closed the defense propounded to
Dr. Hickling who had testified regarding
the condition OF Smell and also as to cpl
leptic insanity in a manner favorable to
the defendant, a hypothetical question of
considerable length. The question reviewed
in detail practically every point brought
in the testimony, and wound UP by
calling or the witness to say whether
not from the conditions noted Smell is sane
insane.
Mr.. Gould promptly objected to the ques-
Ton on The ground that certain of the allie
cations contained therein were not correct
statements of the testimony As an argu-
ment about to ensue Justice Clabaugh
excused the jury Discussion followed for
twenty minutes. Finally Justice Ciabaugh
suggested that counsel endeavor to reacn
an agreement as regards the points in
dispute. and that the question in an amend
adjournment was then taken.
DIR. Hickling resumed the stand this
morning and n answer to the hypothetic
question referred TO. as amended, said:
Il should say that the man is Suffering
from epileptic insanity. and, of course. is
Insane.
The witness stated as his opinion that
suffering from fracture of the skull,
as in the case of Smell. never fully RECEIVERS
his normal condition of mind. A man so
injured might have epileptic seizures from
Vfs.lr. NTTatr Of
from excitement. drink or other causes.
The duration of epieptic seizures, 1t was
testified. vary from a few seconds to sew
eral days.
Witness CrOss-Examined.
On cross-ex animation DR.. Hickling said
ne had examined Smell at the request OF
Attorney Turner. He went into the details
Of the examination. and was also interro-
ga ted as to niS views of the early life of
Snell. as the occurrences of his early life
might relate to his present condition of
mind.
Let US say that the night of the 9Th of
last August Smell drunk said Mr..
Gould Then let say that instead of
killing a little girl the following morning
he went to his office and transacted his du-
ties in the usual way Now. DR.. Hickling.
knowing his history as you do. would you
say that under those circumstances he was
insane the 9Th OF August?
Il would say that ne was dangerous
man" replied Dr. Hickling.
You don't answer the question: COM
mented Mr.. Gould. You had absolutely
no difficulty when answering the hypothet-
ical question OF the defense In arriving
the conclusion that the defendant was in
sane when he did the killing. Why cannot
you answer my question with equal direct
nesS?''
DIR. Kicking made reply that with justice
to himself he could not answer the ques
ton in any other way than he had done.
a hypothetical question asked by Mr..
Gould a moment later was promptly OBJ
jected to. and caused spirited comment
from Attorney Turner.
such questions are asked by Mr.. Could
for one purpose. declared Attorney Tur-
ner- That purpose is to get before the
jury in an irregular manner what has not
yet reached the jury in a regular way.
The question Is manifesty unfair From
his standing al the bar and his years of ex-
perience he should know better than to at
tempt to distort the testimony and to lug
pure conjecture into the case.
Mr.. Gould replied with equal spirit. He
was surprised. he said, that counsel for the
defense were ignorant of the rules that per-
nit. in the croSs-eXamination of an expert
the asking of any form of question, and to
an unlimited extent
Court Admits the Question.
The court permitted the question to be
asked. 1t recited the facts Immediately pre-
ceding and following the crime. The i'm
portant point brought out by 1t and sew
eral other questions was the following
statement from Dr. Hickling:
Il do not believe that man can be
perfectly up to the moment of COM
hitting crime, be insane during the COM
mission thereof and be sane Immediately
following the crime. The insanity must
cover a more continuous period"
The defense next called DIR. J. p. Burwell
physician of twenty years standing He
said that for seven years he was an ex-
amining surgeon of the pension bureau, and
had testified in court ten twelve times
as an expert He had passed upon 200 or
800 cases Of epilepsy.
objection was entered to accepting Dr.
Burwell as an expert in insanity on the
ground that he had not made special
study of insanity.
If DR. BurweIl is permitted TO testify"
remarked Mr.. Gould. then any physician
in the city of Washington is eligible to
do the same. and the rule on experts means
nothing. An expert must possess special
Qualifications and peculiar knowledge Of
the subject under discussion. DR. Burwell
has had an experience as a general prac-
tiJioner.''
The court held that Dr. Burwell had not
Qualined as an expert and he left the
stand. bSing succeeded by DR.. Irving C.
Rose.