objection on the ground that before coming to any conclusion as to the state of mind of the prisoner, the medical man had in the first place to make up his mind as to the truth or falsehood of the facts deposed to. In the answers of the Judges to the questions which the House of Lords, after the trial of McNaughton, proposed to them, they said: "Where the facts are admitted or not disputed, and the question becomes substantially one of science only, it may be convenient to allow the questions to be put in the general form, yet the same cannot be insisted upon as a matter of right." In a case which was tried some six years after that last alluded to, a counsel proposed to ask a physician who had heard all the evidence, whether, from what he had heard, he was of opinion that the prisoner was, at the time he committed the act, of unsound mind. Baron Alderson would not allow the question to be put, and said that he was quite sure the decision with reference to a similar question in the McNaughton case was wrong. "The proper mode," he said, "is to ask what are the symptoms of insanity, or to take particular facts, assuming them to be true, to ask whether they indicate insanity upon the part of the prisoner. To take the course suggested is really to substitute the witness for the jury, and to allow him to decide upon the whole case." 2499. American Rule.-A similar rule of law has been laid down in America. The Supreme Court of Massachusetts, in The Commonwealth v. Rogers,' said: "The proper question to put to the professional witness is this, 'If the symptoms and indications testified to by other witnesses are proved, and if the jury are satisfied of the truth of them, whether, in their opinion, the party is insane.' They are not," the Court went on to say, "to judge of the credit of the witnesses, or of the truth of the facts thus testified by others. It is for the jury to decide whether such facts are satisfactorily proved or not.” Regina v. Frances, 4 Cox C. C. 57. See also Doe (d.) Bainbrigge v. Bainbrigge, 4 Cox, C. C. 454, per Lord Campbell. See also the judgment in The People v. Lake, 12 N. Y. 358; Carpenter v. Blake, 2 Lans. (N. Y.) 206; Tingley v. Cowgill, 48 Mo. 291. 7 Metcalf, 500. 500. What Questions have been Allowed. This rule has also been put in force in cases in this country other than those in which the question of mental soundness or unsoundness had to be decided. Thus it was held that in an action for unskilfully navigating a ship, though a Master of Trinity House or other nautical witness cannot in strictness be asked whether, after having heard the evidence, he thinks the ship was properly or improperly navigated, for in answering such a question the witness would have to draw a conclusion of fact as well as to give an opinion upon it,' yet he may be asked what judgment he can form on the subject, assuming the facts stated in evidence to be true.2 2501. Questions which may not be Put Directly may be Put Hypothetically.-Another device to effect the same purpose has been put in practice. It has been held that although the counsel must not put the question, "What is your opinion as to the state of the prisoner's mind at the time he committed the act?" he may put the question hypothetically, that is, by desiring the witness to assume such facts to be true, and then state his opinion as to the prisoner's state of mind. This rule has been adopted in the United States. It was laid down in the Supreme Court of New York, in The People v. Thurston, that a medical witness may give his opinion on a hypothetical statement of facts, and it will be for the jury to judge whether the supposed facts so stated correspond with the facts as proved. And Mr. Justice Curtis, who presided at the case of the United States v. McGlue," said that medical experts were not allowed to give their opinions on the case. "It is not the province of the expert to draw inferences of facts from the evidence, but Sills v. Brown, 9 Car. & P. 604, 605, per Coleridge. See also Jameson v. Drinkald, 12 Moore, 148. "Fenwick v. Bell, Car. & K. 312, per Coltmans, J.; Malton v. Nesbett, 1 C. & P. 70, per Abbott, C. J. See also Beckwith v. Sydebotham, 1 Camp. 117. * Rex. Wright, Russ. & R. 456. See Reg. v. Higginson, 1 Car. & K. 129. 2 Parker's Criminal Reports, 49. See also Carpenter v. Blake, 2 Lans. (N. Y.) 206; Tingley v. Cowgill, 48 Mo. 291. 51 Curtis, 1. See also Woodbury v. Obear, 7 Gray, 467, 471; The State v. Windsor, 5 Harrington, (Del.) 512; The People v. McCann, 3 Parker's Cr. (N. Y.) 272; McAlister v. The State, 17 Ala. 434. But see Negro Jerry v. Townshend, 9 Md. 145. simply to declare his opinion on a known or hypothetical state of facts, and, therefore, the counsel on each side have put to the physicians such states of facts as they deemed warranted by the evidence, and have taken their opinions thereon. If you consider any of these states of facts put to the physicians are proved, then the opinions thereon are admissible evidence. to be weighed by you. Otherwise their opinions are not applicable to this case. 502. Objections to this Rule considered.-Dr. Ray sneers at this rule of law, and objects that it is one of the worst ways of getting any one's opinion to put a hypothetical case, that lawyers would refuse to advise upon such conditions, that such a method violates one of the settled rules of philosophy, that the hypothetical case put will be the very case which is in court, and that consequently the opinion of the expert will weigh just as much with the jury. But Dr. Ray is one of those who thinks that implicit faith should be placed in the opinion of experts, and no wonder, for is not Dr. Ray himself an expert? To the objection that "perhaps the opinion of the expert may be decisive of the question at issue, and thus determine the verdict," he says: "And why should it not? if that opinion is correct it would be highly reprehensible in the jury to disregard it." Yes, if it is correct, but the chances being that it is incorrect, is it fair to allow the jury to be subjected to the pressure of this disturbing influence? The wisdom of some of the best heads has decided that the rule is a good one, and for very obvious rea sons. 503. The Use of these Devices.-The opinion of the expert is of use, as we have seen, to aid the inexperience of the jury, but it would be most improper to allow such opinion to control their verdict. A juror is sworn to give a true verdict according to the evidence, but the private judg Dr. Walker, (Boston, Mass.) in speaking on this subject at the meeting of the medical superintendents of American Institutions for the Insane (1872), said: "I think for my own part, for comfort and convenience every way, I would as soon be examined in any case by hypothetical questions as on the testimony."-Rep. of Proceedings, p. 86. 2 Med. Jur. Insanity, 5th ed., p. 638, et seq. ment of an individual, learned or unlearned, does not really fall under that category. In order, therefore, to get all the advantage of the expert's experience, with as little as possible of this controlling force, the law has allowed only hypothetical and speculative questions to be put to him. In this way, his brain is sucked of the essence of its experience, and he is at the same time as far as possible precluded from influencing the verdict of the jury. This is an exactly similar device to that already described of making the medical man take for granted the truth of all the evidence. By each method the expert's skill is made use of as a guide, without being a governor of the will of the jury. Both in this country and in America there is cause for complaint that "physicians are mostly inclined to excuse many wrong acts of individuals on the grounds of disease;" and that "juries are inclined, in too great a degree, perhaps, to take the opinion of a physician of good reputation and standing as to the insanity of an individual." It is well, then, that there should be a means by which the testimony when receivedand it should always, as we have seen, be received as of very inferior worth—may be prevented from doing the mischief it is only too apt to do. Some such rules of law were absolutely necessary. 504. General Worth of such Testimony.-One or two other principles which are applicable to the reception of this kind of evidence must be alluded to. Its general worth has been estimated by an American Court. "Great respect," it said, "should be paid to the opinion of such a class of witnesses, but they are no more controlling than those of any other body of men when speaking upon subjects which lie within the range of common observation and experience."2 2 505. Where Inquiry is as to Subject which does not require Skill.-One thing it is most important to note, and that is, that where an inquiry relates to a subject which does not require any peculiar habits or course of study in order to Juries and Physicians on Question of Insanity, by R. S. Guernsey, Esq., of the New York Bar. Brehm v. Great Western Railroad Co., 34 Barbour, 256. qualify a man to understand it, the evidence of experts is not admissible. Thus in our own courts opinions as to moral and legal obligations, or as to the manner in which other persons would probably have been influenced have been held inadmissible. So the opinions of medical pratictioners upon the question, as to whether a certain physician had honorably and faithfully discharged his duties to his medical brethren has been rejected, because on such a point the jury was as capable of forming an opinion as the witnesses themselves.2 Neither is the opinion of one expert as to whether a certain state of facts was enough to justify another expert in the formation of an opinion admissible. Upon this the main point of the inadmissibility of the evidence of experts concerning which the ordinary experience of mankind is a sufficient means of knowledge, one or two other cases may be mentioned. In The People v. Bodine, in which it appeared that a corpse had been found partially burned and certain portions of the body, covered with loose clothing, were not burned, the opinion of a medical man that the person must have been dead before the fire broke out, as otherwise the covering would have been disturbed, was held inadmissible testimony. In another case, it was decided that the question whether a wound was caused by a blunt instrument or not, is not a question for scientific opinion. So in Kennedy v. People, it was held that the opinions of the medical witnesses as to position of the body when struck, inferred from the nature of the wound they examined, were not admissible as evidence. 6 4 2506. Medical Experts in Cases of Insanity.-Now as the question of the sanity or the insanity of an individual is a question of conduct, as well as a question of nosology, as a man is regarded as insane who acts in a way different from that of the majority of his fellows, it might well seem that Campbell v. Rickards, 5 Barn. & Adol. 846. Sce also St. Louis Mut. Ins. Co. v. Graves, 6 Bush, (Ky.) 290. People v. Hartung, 17 How N. Y. 11; Tullis v. Kidd, 12 Ala. 684. +1 Denio, 281. 5 Wilson v. People, 4 Parker's N. Y. Criminal Reports, 619. 65 Abbott, N. S. 147. |