MEDICO-LEGAL POINTS 
IN TflE CASE OF 
DAVID MONTGOMERY 
i,v V 
WILLIAM A. HAMMOND, M. D., 
PROFESSOR OF DISEASES OF THE MIND AND NERVOUS SYSTEM, AND OF CLINICAL 
MEDICINE, IN THE BELLEVUE HOSPITAL MEDICAL COLLEGE, ETC. 
In tlie spring of tlie present year I was requested by the 
District Attorney of Monroe County, in this State, to read 
a transcript of certain evidence which had been adduced at 
a preliminary examination in the case of David Montgomery, 
indicted for the murder of his wife. 
i Upon a careful consideration of this evidence I gave it as 
my opinion t|Jiat epilepsy of itself was not sufficient to destroy 
responsibility, and that, though the prisoner had probably 
suffered from occasional epileptic seizures, there was nothing 
to show that the crime of which he was accused was in any 
way the result of such a paroxysm. On the contrary, the cir- 
cumstances appeared to indicate that the prisoner acted with 
deliberation and full reason. I, however, stated that I could 
not give a definite opinion on these latter points without ex- 
amining the accused. 
A preliminary examination had been made before a jury 
to determine the mental condition of the prisoner, the law 146 
MEDICO-LEGAL POINTS IN THE 
of the State of Kew York not allowing of the trial of a person 
not of sound mind. A commission, composed of physicians, 
examined him, and, though they reported that he was insane, 
other testimony to the contrary was given, and the jury dis- 
agreed on the question submitted to them. As this result 
was equivalent in law to a declaration of sanity, the trial was 
ordered to take place. The result was a conviction of murder 
in the first degree. The medical experts who supported the 
theory of the prisoner’s insanity were Dr. Cook, of the 
asylum at Canandaigua, and Dr. Gray, of the Utica Asylum; 
those who thought differently were Drs. Moore and Mont- 
gomery, of Rochester, and myself. Two careful examinations 
of the prisoner left no doubt on my mind of his entire respon- 
sibility for the murder. At the same time, there was no 
question that his intellect was undeveloped, and that he had 
had occasional paroxysms of epilepsy. There was, however, 
no mental aberration, and the circumstances of the deed and 
his subsequent conduct were such as to shut off all idea of 
unconsciousness. 
It by no means follows that an individual suffering from 
epilepsy is not as fully responsible for his actions as healthy 
persons. 
Reynolds, who has written the best work on the subject 
in the English language, states that the disease in question, 
even when fully pronounced, does not necessarily involve 
mental change. In thirty-eight per cent, of his cases the 
mind was unaffected in any way. 
He further declares that, while considerable intellectual 
impairment exists in some cases, it is the exception and not 
the rule. 
And also that ulterior mental changes are rare. 
Falret, in his valuable essay on the “Mental State of Epi- 
leptics” (“L’Etat mental des Epileptiques”) says: “The first 
question which naturally presents itself to the mind, relative 
to the medico-legal relations of epilepsy, is this: Should all 
the epileptics who commit criminal acts be regarded as in- 
sane, and therefore irresponsible? Some physicians, laying 
too much stress on the eccentricities of character and of con- 
duct observed with the majority of epileptics, even with those CASE OF DAVID MONTGOMERY. 
147 
who have preserved all the appearances of reason, declare for 
the affirmative. They contend that the simple proof that an 
individual is suffering from epilepsy is sufficient to acquit 
him of criminality; as not having enjoyed mental freedom 
at the moment of accomplishing the act imputed to him. A 
doctrine so absolute cannot be accepted without reserve. It 
extends, to boundless limits, the sphere of irresponsibility, 
and, if generally adopted by physicians, would greatly lessen 
their authority in the eyes of magistrates, wTlio will never ad- 
mit that the sole fact of epilepsy is sufficient to absolve an 
accused person. Physicians who only observe the epileptics 
of insane asylums may be inclined to adopt this absolute 
opinion. In fact, notwithstanding the essentially intermit- 
tent character of the intellectual troubles with epileptics, the 
frequent repetitions of the accessions of delirium leave gen- 
erally, in the minds of those who experience them, evident and 
durable traces even in the intervals of the paroxysms. But 
when we do not restrict our observation to the epileptics 
who are contained in lunatic asylums, when we extend it to 
all those wdio live in society without any one suspecting the 
existence of this disease, it is impossible not to accord to a 
certain number of epileptics the privilege of moral responsi- 
bility, if not during their whole lives, at least during a long 
period of their existence. 
“ The question, therefore, of the responsibility , or irrespon- 
sibility of epileptics cannot be defined in an absolute manner, 
since we must consider certain epileptics as guilty of the acts 
imputed to them ; at certain periods of the disease, the appre- 
ciation of this responsibility becomes extremely delicate in 
each particular case. 
“ Thus the only practical manner of putting medico-legal 
questions relative to epilepsy and mental alienation is that 
which has been hallowed by custom. Was the individual of 
sane or insane mind when he committed the act for which he 
was arraigned before the bar of justice? If he was insane, 
he ought to be considered irresponsible; if not, he ought to 
be condemned as guilty.” 
It is very certain, therefore, that the mere fact of the 
existence of epilepsy in a person accused of crime is not suffi- 148 
MEDICO-LEGAL POINTS IN THE 
eient to abrogate responsibility. My own experience abun 
dantly supports tliis view; and it is well known that some of 
tlie greatest men who have ever lived and who were remarkable 
for their intellectual vigor—Julius Caesar and Napoleon Bona- 
parte, for example—were epileptics. Cases have been under 
my observation in which the disease had lasted for many 
years without apparent mental derangement or failure. 
It frequently happens that the insane in lunatic asylums 
are at the same time epileptics. But insanity with epilepsy 
is a very different thing from the insanity which results from 
epilepsy. It is for this reason that Falret, in the foregoing 
quotation, attaches little importance to the views of asylum 
physicians on this subject. And his opinion is the more valu- 
able, as he is himself the superintendent of a large asylum in 
France. 
The essential feature of an epileptic paroxysm, whether it 
is of the grand mal or petit mal variety, is unconsciousness. 
And though occasionally in aborted seizures there may be a 
kind of semi-consciousness present, the other phenomena of 
the attack are so characteristic as to be perceived by the pa- 
tient. 
In all fully-developed paroxysms unconsciousness is the 
essential feature, and without it there is no epilepsy. The 
individual attacked has, therefore, no recollection of any 
thing which has taken place during the seizure, and the 
mere fact of such recollection existing is very certain evi- 
dence that there was no paroxysm. 
There is no case on record of a crime being committed by 
an epileptic during a paroxysm, and the recollection of it be- 
ing present. 
Crimes may be committed by epileptics without respon- 
sibility under three different conditions, and no others : 1. 
Either as a consequence of mental imbecility resulting from 
repeated attacks of epilepsy. In such a case the condition 
of the individual wrould be one of dementia, and lie would be 
incapable of judging of the consequences of his act, and the 
act itself would be without motive. 2. During the state of 
high maniacal excitement which sometimes follows an attack, 
and in the otherwise insane precedes it, in which case the act CASE OF DAVID MONTGOMERY. 
149 
would be indeterminate. 3. During the state of unconscious- 
ness resulting or attending upon tlie paroxysm. In tliis ease 
there would be no subsequent recollection. 
In a paper on “ Epilepsy and Homicide,” written by Dr. 
Isaac Day in special reference to the Winnemore case, and pub- 
lished in the Journal of Insanity for October, 1867, the author 
says: “ If the deed was committed under the influence of his 
disease, supposing the charge to have been true, we are neces- 
sarily led to inquire what particular phase of it was present. 
Ho one supposes that his mind was generally so impaired as to 
be incapable of discerning right from wrong, of knowing that 
murder is forbidden both by human and divine law, or of 
controlling the fullest impulses of passion. The act could 
not have sprung from such a condition as that. Heitlier is 
there any ground for the supposition that he was under the 
domination of that blind fury so frequently exhibited by epi- 
leptics before or after a fit, or that his mind was overpowered 
by apprehensions of dangers, or a sense of persecution and 
outrage from persons, real or imaginary, about him. Nei- 
ther of these phases of the disease had he ever exhibited; and, 
though it is not impossible, perhaps, that the latter occurred 
on this occasion for the first time, there is not the slightest 
reason to believe that such was the fact. We then come to 
the only other epileptic condition in which the act could have 
happened, that of utter unconsciousness, and, though we have 
no direct evidence respecting it, neither are we met by any 
circumstances of the case that would render it impossible. 
He had been in this state. more than once before, and it was 
one of its incidents that he had no idea whatever of what he 
thought or did while in them.” 
The case of Fyler, the first time in this country in which 
epilepsy was used as a defence, who was tried in Onondaga 
County, H. Y., in 1855, for killing his wife, was also one in 
which there was entire want of recollection of the murderous 
act. In both Winnemore’s and Fyler’s cases the prisoners were 
found guilty. In the first, the penalty was inflicted ; in the 
latter, a medical commission pronounced the prisoner insane, 
and he was committed to the lunatic asylum in Utica. 
In the case of John Reynolds, tried over a year ago in 
Hew York for murder, the attempt was made, after convic- 150 
MEDICO-LEGAL POINTS IN THE 
tion, to prove the existence of epilepsy. I examined the pris- 
oner several times before and after the trial, and was satisfied 
that the crime was jiot committed through the influence of 
that disease. lie was executed. 
In the case of Chambers, who shortly afterward com- 
mitted a murder in Brooklyn, the plea of insanity was set up. 
I was requested by the district attorney to examine the 
prisoner. I did so, and found no evidence of epilepsy beyond 
the statements of Chambers himself. On his trial another 
physician testified to the presence of epilepsy. Through a 
misadventure, I did not get to the court to testify, and the 
prisoner was acquitted and sent to the lunatic asylum at 
Utica. lie presents no signs, as I have been informed by Dr. 
Gray, of having any form of mental alienation or epilepsy. 
The prisoner Montgomery is twenty years of age, has fol- 
lowed the occupation of a carter, and has never been suspected 
of mental derangement, dementia, or epilepsy, by those who 
knew him, outside of his own family. Several members of the 
family, however, testified, in the previous proceedings relative 
to his sanity, that he had been subject to epilepsy since in- 
fancy, but the commissioners could only satisfy themselves that 
he had had three attacks up to the time of the homicide ; there- 
fore it may easily be assumed that, notwithstanding the pos- 
sible existence of epilepsy, his mind has not in consequence 
of such disease undergone marked deterioration. 
At the of about eighteen he married: but had lived 
O O ' 
upon bad terms with his wife, who had been a prostitute, and 
who insisted upon returning to her former occupation. A week 
before the homicide she left him, taking with her their child, 
eight months old. On the evening of the day (Saturday) be- 
fore the homicide, Montgomery went to her mother’s, where 
she was stopping, and persuaded her to return home with 
him. They arrived at their own home about twelve o’clock 
at night, and she was killed the next morning between the 
hours of six and eight. Many of these particulars, as well 
as the subsequent ones, are derived from the statements of 
the prisoner. 
From these statements it appears that they awoke early in 
the morning and began to talk of their difficulties. He told CASE OF DAVID MONTGOMERY. 
151 
her that, if she would remain at home and stop going with 
other men, he would forgive her. She replied that she would 
not, that she was a prostitute when he married her, and he 
knew it, and that she had always been one and always would 
be one. He replied that he had made up his mind that, if 
she would not live with him, she should not live with any one 
else. lie then got out of bed, partially dressed himself, and 
went to his father’s house, a few rods distant, and took from 
the back-yard an axe, with which he returned to his own 
residence. On entering the room where his wife was he 
found her asleep. He stood by the stove a few minutes, de- 
liberating whether he should kill her or not. Finally he de- 
termined to do so, and then struck her on the head, just above 
the left temple, inflicting a mortal wound, of which she died. 
He then left the house, and, meeting a younger brother 
in the street, told him what he had done, and then taking a 
razor from his pocket attempted to cut his throat. In this 
effort he was prevented by his father and brother, and was 
by them persuaded to give himself up to the police. On his 
way to the jail he stated to the officer that he had at first 
thought of going to Canada after killing his wife, but, con- 
cluding that he would be caught, he had determined to give 
himself up. 
In these particulars there is no one fact indicating insanity, 
dementia, or epilepsy, besides the fact of voluntary confession 
and surrender. This, unaccompanied by other evidences of 
mental aberration, is of little importance, and is materially 
lessened in its force by the opinion of the prisoner, as ex- 
pressed to the policeman, that he thought he would be caught 
if he attempted to escape. 
As regards temporary insanity from morbid impulse, there 
is no evidence to show that Montgomery had exhibited any 
indications of mental derangement during the few days pre- 
ceding the homicide. The facts of the dispute, the repug- 
nance he entertained to his wife’s conduct, the deliberation 
with which he went to his father’s house for the axe, and re- 
flected, as he stood by the stove, in regard to his purpose, are 
at direct variance with any such idea. 
They are equally against the idea of such a condition of 152 
MEDICO LEGAL POINTS IN THE 
dementia or imbecility as to indicate a want of knowledge 
of his acts and their consequences. 
As to epilepsy, the circumstances of the affair are abso- 
lutely irreconcilable with the theory that the homicide was 
perpetrated during a paroxysm or an accession of epileptic 
mania. Instead of a blind fury, there was deliberation ; in- 
stead of a purposeless act, there were motive and provocation ; 
instead of unconsciousness and subsequent want of recollec- 
tion, there was complete knowledge of all the circumstances, 
even to their minutest details ; instead of subsequent confu- 
sion of ideas, there was distinct recollection. 
Admitting that Montgomery has been subject to repeated 
attacks of both the grand and petit mal, it is very evident 
that these were not sufficient to injure his mind to any ap- 
preciable extent. 
The hereditary tendency to insanity would be of impor- 
tance if the prisoner had himself, in the perpetration of the 
homicidal act, or before or after, shown signs of mental de- 
rangement. In the absence of such signs, it is of little im- 
portance. 
The prisoner, as stated, was convicted of murder in the 
first degree. 
A motion for a new trial was made by the prisoner’s coun- 
sel, and, among other reasons which he adduced, was the fact 
that I had been paid a large sum to come to Rochester and 
testify in the case. The views of Judge E. Darwin Smith, 
before whom the case was originally tried, are so exactly in 
accordance with those now held by all enlightened jurists, 
relative to compensation to medical experts, and are so fair 
to myself and the district attorney, Mr. Davis, that I subjoin 
them without comment: 
“ The next allegation of irregularity is ‘ that a medical 
witness, Dr. Ilammond, was produced and gave testimony in 
the case on the part of the people, by the procurement of the 
district attorney, under a contract that such witness, not being 
a poor witness, nor a non-resident of the State, should be paid 
a consideration of five hundred dollars for attending the 
court and giving his testimony, and was paid that sum of 
money, and this without the knowledge of the prisoner or CASE OF DAVID MONTGOMERY. 
153 
liis counsel until after liis testimony in tlie case was closed.’ 
Upon this statement of facts I cannot perceive upon what 
ground or principle an allegation of irregularity can he based 
or sustained; but it is doubtless due to the importance of the 
case, the character of the question involved, and to the con- 
sideration of what is due to the proper administration of jus- 
tice in respect to public prosecutions, that the facts contained 
in the affidavits produced should be more fully stated and 
considered. From the stenographer’s notes and our own 
minutes of the trial, we know that the fact and body of the 
crime for which the prisoner was tried was very clearly 
proved, and was really undoubted and unquestioned, and that 
the only defence set up and sought to be established at the 
trial was that of insanity. It appears from the affidavits read 
on this motion that the case was put over the last February 
term of this court, upon the allegation that the defendant was 
insane, and a commission of distinguished physicians was fixed 
and agreed upon b}r the attorney-general and the counsel for 
the prisoner, and assented to and appointed by the court, so 
far as it had power to do so, to ascertain by inspection and 
otherwise, and report whether the prisoner was or was not in- 
sane ; and it also appears and was well known that the case 
also went over the April term to allow an inquiry to be insti- 
tuted, and that such inquiry had been instituted by the county 
judge, with a jury, under the statute of 1812, to ascertain 
whether the prisoner was or was not insane—upon which in- 
quisition the jury were unable to agree. 
u The case, therefore, was necessarily prepared for and came 
on for trial at the present adjourned term of the Oyer and 
Terminer. 
“ The prisoner, to prove and establish his defence of insan- 
ity, called a number of distinguished physicians, and the peo- 
ple also called several physicians upon that issue, and among 
others Dr. Hammond. In respect to the attendance of Dr. 
Hammond, particularly as a witness, the facts stated in the 
affidavits are in substance as follows: The affidavit of the 
counsel for the prisoner states that preparatory to such court 
he 1 was induced to write to Dr. Hammond, of the city of 
Hew York, and sent a gentleman to see him a few days before 154 
MEDICO-LEGAL POINTS IN THE 
the court to inquire (not as to his opinion, hut) whether he 
would come and examine and testify in the case;1 that he re- 
ceived information in reply that lie was coming at the request 
of the district attorney, and would he present; that the trial 
began on Wednesday, May 17th, and on the following morn- 
ing Dr. Hammond arrived in the court-house, as the counsel 
was opening the case for the defence ; that he saw Dr. Ham- 
mond at noon of that day, and was informed by him that he 
wished to examine the prisoner, and would make an impartial 
examination, and he also saw Dr. Hammond the same even- 
ing, and had considerable conversation with him about the 
case and the condition of the prisoner; that before the pris- 
oner closed his case, he called Dr. Hammond as a witness for 
the prisoner and examined him at some length, and that the 
people recalled him in reply when he was further examined; 
that on Tuesday, the 23d of May, while the counsel for the 
prosecution was summing up the case for the people, he re- 
ceived information that the district attorney had contracted 
to pay Dr. Hammond live hundred dollars for coming to 
Rochester and testifying in behalf of the people ; that during 
the recess at noon he inquired into the facts and found that a 
warrant of the treasurer had been drawn in Dr. Hammond’s 
favor, and paid, for live hundred dollars; that Dr. Hammond 
was then a resident of the city of New York, and that his 
reasonable expenses could not exceed fifty dollars, and that 
on the coming in of the court after the recess he called the 
1 The purport of the counsel’s inquiry will be best judged of by a pe- 
rusal of his letter to me at the time, and which I subjoin. The sincerity 
of his opinion relative to compensation of expert witnesses may probably 
admit of some question, in view of the contents of this letter. 
Rochester, N. Y., May 12, 1871. 
Dear Doctor: I am to defend David Montgomery, charged with the 
crime of murder, the trial to commence on Tuesday next, in this city. 
I wish to examine you as an expert witness. If you will be hero on 
Wednesday morning, I will release you Wednesday night. 
I send you, through my brother, the testimony and opinions of physi- 
cians, including Drs. Gray, of Utica, and Cook, of Canandaigua, taken on an 
examination to determine whether Montgomery had intelligence enough 
to be tried. The jury disagreed, I have pressed a trial. I wish the case 
to be ended. I have not the slightest doubt that the alleged murder 
was an insane act. The prisoner struck his wife a single fatal blow 
with an axe while she was asleep, kissed her, and proceeded to cut CASE OF DAVID MONTGOMERY. 
155 
attention of the court to the fact in the presence of the jury, 
and that such payment had been made as above stated with 
the sanction of the court, which wras admitted by the district 
attorney and not denied.’ 
“ The affidavit of the district attorney on the same subject 
states in substance that, preparatory to said trial, he took all 
the testimony which had been taken before the county judge 
as above stated, and went to the city of New York and laid 
the same and the whole case before Dr. Hammond, and asked 
him for his opinion upon it, and, learning from Dr. Hammond 
that he could not give him a satisfactory opinion without see- 
ing and examining the prisoner, he inquired of him upon 
wdiat terms he could be induced to come to Rochester and 
make such examination and attend the trial as a witness; 
and, learning that he could not be induced to come for any 
thing less than five hundred dollars, he left him, and consulted 
the district attorney of the city of New York, and the United 
States district attorney of the southern district of this State, 
the late Judge Davis, on the subject of the propriety of engaging 
Dr. Hammond to come to Rochester and attend the trial at the 
price aforesaid, and wras advised by both of said officers that 
it was customary for district attorneys to employ and pay ex- 
perts in professional life like Dr. Hammond, and that his 
charge w*as reasonable in view of his high reputation and ex- 
tensive practice in his profession ; that deponent then re- 
turned home, and consulted the judges of the court of ses- 
sions, and several members of the board of supervisors of 
Monroe County, and also twro of the justices of the Supreme 
his own throat with a razor, and was arrested in the act. This was on 
Sunday, the 18th November last. He made no attempt at escape or con- 
cealment. Soon after, he stated that it wras his temper, he supposed, 
which led him to kill Her; that he loved her, and she was resolved to be a 
prostitute. (I think this wastrue.) Within an hour he stated that he felt 
compelled to kill her. Shortly after noon, he was quite unconscious of 
the act, and it is my conviction has now no remembrance of it whatever. 
The evidence sent to you shows that he has been subject to occasional fits 
of epilepsy. Still, he has been a strong young man (now twenty years old), 
and has labored faithfully and well, the neighbors not knowing generally 
that he was ailing. His friends are poor, but I shall see that you are fair- 
ly compensated. The newsmongers and police want an exciting trial and 
execution, and, to my surprise, have created some prejudice against the 
young man. Hence the necessity of fortifying the case by the opinions of 
able and humane men. Please telegraph to me to-morrow. 
Truly yours, J. H. Martindale. 156 
MEDICO-LEGAL POINTS IN THE 
Court of this district, on tlie subject, all of whom advised him 
that they thought that, as the public prosecutor for the 
county, he would be justified in making the proposed ar- 
rangement to secure the attendance of Dr. Ilammond at this 
court, and advised him to make such arrangement. 
“ The district attorney further states in his affidavit that 
on Monday before the trial he informed the counsel for the 
prisoner that Dr. Ilammond would be present at the trial as 
a witness for the people, and that after his arrival General 
Martindale had frequent interviews and consultations with 
Dr. Ilammond during the progress of the trial, and took the 
doctor to his house to spend an evening; and that after such 
interviews, intercourse, and consultations, the said counsel 
called Dr. Ilammond as a witness for the prisoner, and im- 
proved him as such, and that he is informed, and believes, 
that it is customary throughout the State for the courts to pay 
professional witnesses for their time, expenses, and services, 
as in this case, upon the application of the district attorney 
of the county, and that deponent had no other object in call- 
ing Dr. Ilammond except to elicit the truth before the jury. 
“ Upon these facts we do not see that the calling of Dr. 
Ilammond as a witness, and the payment to him of a suf- 
ficient sum to secure his attendance at the court during the 
trial, was in any respect an irregularity, or did any wrong to 
the prisoner. It seems to us that the district attorney was 
acting in the line of his duty as public prosecutor in securing 
the attendance of a proper medical witness of high repute to 
meet the distinguished medical experts which he knew the 
prisoner expected to call on his side. The question at issue 
in the trial was chiefly a medical one, in respect to which the 
opinions of medical men would be likely to exert a great if 
not controlling influence. The witnesses who had testified 
before the county judge, and those also who had acted on the 
commission, were among the most distinguished members of 
their profession upon the particular questions involved on 
the trial. Those witnesses the prisoner was expected to call 
in the trial, and the district attorney would, it seems to us, 
under the circumstances of the case, have been derelict in his 
duty to the people of this county if he had not taken the re- 
quisite steps to secure the attendance of witnesses of equal 157 
CASE OF DAVID MONTGOMERY. 
distinction and consideration in their profession, on the part 
of the people. The district attorney, it is trne, might have 
required the attendance of Dr. Hammond on subpoena, hut 
that would not suffice to qualify him to testify as an expert, 
with clearness and certainty, upon the questions involved. 
He would have met the requirement of a subpoena if he had 
appeared in court when he was required to testify, and given 
proper impromptu answers to such questions as might then 
have been put to him in behalf of the people. lie could not 
have been required under process of subpoena to examine the 
case, and to have used his skill and knowledge to enable him 
to give an opinion upon any points of the case, nor to have 
attended during the whole trial, and attentively considered 
and carefully heard all the testimony given on both sides, in 
order to qualify him to give a deliberate opinion upon such 
testimony as an expert in respect to the question of the sanity 
of the prisoner. Professional witnesses, I suppose, are more 
or less paid for their time, and services, and expenses, when 
called as experts in important cases in all parts of the 
country. The question what amount is paid, or agreed to be 
paid, in such cases, cannot affect the regularity of a trial. It 
may perhaps properly affect the question of their credit with 
the jury. In this case it appears that the facts in respect to 
the employment and payment of Dr. Hammond were fully 
and publicly stated in the presence of the jury before the 
case was given to them, and were well known to them, and 
may have, and must have had, such influence with them as 
they thought proper to give to them under the circumstances 
of this case. We do not, therefore, think they present any 
ground for a new trial, as a question of irregularity or other- 
wise. 
“ The prisoner’s counsel also ask for a new trial on the 
ground of surprise in respect to the testimony of Dr. Ham- 
mond, and of newly-discovered evidence. 
“ So far as relates to the question of newly-discovered evi- 
dence, the application is based upon several affidavits showing 
that the prisoner has had a fit in the jail since his trial, and it 
is claimed that this fact tends to show that he did not simulate, 
on the trial and before, the appearance of an insane person. 158 
MEDICO-LEGAL POINTS IN THE 
“ On tliis question tlie allegation is in substance that the 
testimony of Dr. Hammond tended to show that the prisoner’s 
appearance of indifference and apparent unconsciousness on 
the trial was assumed or feigned, and that the proof of the fit 
had at the jail, since the trial, tends to refute such evidence. 
This is not new evidence in kind or degree, and is really noth- 
ing but cumulative testimony on the main issue. Much tes- 
timony was given on the trial, proving that the prisoner was 
accustomed to have fits, had numerous fits in his infancy, and 
in his earlier years, and a few later in life, and one in the week 
previous to the homicide; and this evidence was not ques- 
tioned or doubted. Proof of another fit occurring after the 
trial could not affect the question, particularly on another 
trial. It is not newly-discovered evidence within the rule 
applicable to such cases, that the newly-discovered evidence 
to warrant a new trial must be material, and to go to the 
merits and not be cumulative, collateral, or corroborative, 
and such as ought to produce on another trial an opposite re- 
sult on the merits. ( Vide ‘ American Criminal Law,’ section 
3,101.) Such we think quite clearly would not be the effect 
of making proof of this fit at the jail, just as it is presented in 
the several affidavits read and produced on this motion. 
“ On the point of surprise, the facts above stated, and con- 
tained in the affidavits of the counsel for the prisoner, and of 
the district attorney, we think do not show that the prisoner’s 
counsel had any just ground of complaint or of surprise, in a 
legal sense, in respect to the testimony of Dr. Hammond. 
The counsel for the prisoner states that he advised his client 
to submit to examination by Dr. Hammond, and that he did 
submit to such examination, and that Dr. Hammond did not 
fully disclose to him the whole of such examination. The 
defence of insanity set up for the prisoner necessarily subjected 
him to the test of medical examination. I do not see how Dr. 
Hammond, seeking to make an examination of his person to 
ascertain the state of his system, his health, and the symptoms 
of mental disease, as a witness and expert, called in behalf of 
the people, could properly be denied such an opportunity. 
To have refused to allow it would have been a virtual admis- 
sion that such defence was unfounded, and that the appearance 
of the prisoner in his person and conduct, giving color to such CASE OF DAVID MONTGOMERY. 
159 
defence and relied upon in part to sustain it, was simulated 
for tlie purpose of such defence. The counsel for the prisoner 
had constant intercourse with Dr. Hammond during the trial, 
and, finally, virtually took him away from the prosecution, and 
appropriated him as a witness for the prisoner, by calling him 
as such witness, and examining him as far as he pleased. Dr. 
Hammond, so far as we could see, answered all the questions 
put to him by the counsel, on such examination, with frank- 
ness and explicitness; and we cannot see that it furnishes any 
ground for the complaint of surprise, that he gave further and 
fuller testimony afterward when called by the prosecution. 
The fact stated in the affidavit of the counsel, that, when he so 
called him as a witness, he was ignorant that he had made a 
contract with the district attorney to appear and testify as a 
witness, on the part of the prosecution, for the sum of five hun- 
dred dollars, cannot, that we see, affect the question of surprise. 
Certainly the learned counsel knew that Dr. Hammond came 
to Rochester to examine the prisoner, and attend the trial as a 
witness in behalf of the people, and upon the employment of the 
district attorney. It could hardly have been supposed that he 
came voluntarily, and spent so much of his time, without some 
compensation, and such compensation to be paid necessarily 
from the funds of the county, at the instance and upon the 
application of the district attorney. 
“ Within the rule applicable to cases of surprise, in respect 
to the proceedings of a trial, we do not see any basis of fact, 
upon which the court would be justified in granting a new 
trial on this specific ground. We cannot see that the prison- 
er’s case was affected injuriously by any essential surprise in 
law or fact, or by any accidental or unforeseen occurrence, 
during the trial, to his prejudice. And, upon the wdiole case, 
we think the motion for a new trial should therefore be de- 
nied. Motion denied.” 
I submit these views and opinions of Judge Smith wfithout 
further comment, though there are several statements made 
by the prisoner’s counsel which are based more on fancy than 
reality.