naturally have heard from the absent man must have failed to receive the tidings they might reasonably expect; and even in such cases the presumption of death which arises is not, of course, an irrefragable presumption; it may be overcome either by conflicting presumptions* or by countervailing proof.t

On the other hand, it is not always essential that a period of seven years should elapse before the conclusion of death will be drawn by the law. If, in addition to the fact of a man's absence, it be shown that the circumstances attending his departure were such as to expose him to the chance of peril or disaster, the law, upon proof of these circumstances, may infer that his death occurred before the expiration either of seven years or of any specific period of time. Where, for example, a man attempts suicide and the attempt is frustrated, but the following day he disappears, the law is justified in drawing the conclusion that death occurred about the time of his departure, and the property rights of the survivors will be regulated accordingly.§ And similarly where the vessel in which a man has set sail from his home has long been past due at the port of its destination, and is believed to have foundered in a storm, the fact of death may be inferred before the usual period has expired.||

A recent case in this State illustrates the application of these doctrines. The missing man had set sail on his yacht for Kingston, Jamaica, and nothing was heard from him except that a vessel resembling the yacht was sighted twenty-nine days after his departure. On March 13, 1888, the day succeeding his departure, a great storm occurred; and the probable situation of the yacht was within the radius, if not within the center, of the hurricane. Pieces of wreckage resembling parts of the vessel were found a few days afterward; and though for six months, by cablegrams and letters, diligent search was made, no tidings of the missing man were received. The court held that his death must be presumed, and that his will, accordingly, should be admitted to probate.

Where, however, the law presumes that a man is dead by reason of his absence, unheard of, for a period of seven years, it will not presume that his death occurred at any specific date within that period of time. As in the case of death by a common disaster, it refuses to indulge in any arbitrary rule; and the precise date of death is left to be established through the ordinary agencies of proof.** Such, at least, is the doctrine

* Rex vs. Twining, 2 B. & Ad. 336.

+ Stouvenal vs. Stevens, 2 Daly, 319; Davie vs. Briggs, 97 U. S. 628. So a title to real estate which depends for its validity on the application of this presumption may not be free from reasonable doubt. Tought vs. Williams, 120 N. Y. 253; and compare Ferry vs. Sampson, 112 N. Y. 415.

Greenleaf, Evidence, vol. i., § 41; Wharton, Evidence, § 1283; Davie vs. Briggs, 97 U. S. 628; Sheldon vs. Ferris, 45 Barb. 124; Oppenheim vs. Wolf, 3 Sandf. Ch. 517; Webster vs. Birchmore, 13 Ves. 362; Matter of Ackerman, 2 Redf. 521.

In re Ketcham's Estate, 5 N. Y. Supp. 566.

|| Oppenheim vs. Wolf, 3 Sandf. Ch. 517; Gerry vs. Post, 13 How. Pr. 118. ¶Estate of Stewart, 3 N. Y. Supp. 284.

**Davie vs. Briggs, 97 U. S. 628; In re Phene's Trust, L. R. 5 Ch. App. 139; Nepeau vs. Doe, 5 Barn. & Adol. 86; Nepeau vs. Knight, 2 Mees & W. 894; McCarter vs. Camce, 1 Barb. Ch. 456; Prudential Assur. Co. vs. Edwards, L. R. 2 App. Cases, 487; Re Rhodes, 36 Ch. D. 586; Matter of Thompson, L. R. 12 Prob. D. 100; Whiteley vs. Eq. Assur. Co., 72 Wis. 170; Hancock vs. Am. L. I. Co., 62 Mo. 30; Johnson vs. Merithew, 80 Me. 111; but see Burr vs. Sim, 4 Whart. 150; Whiting vs. Nicholl, 46 Ill. 230; Naisor vs. Brockway, Rich. Eq. Cas. 449; and ef. Eagle's Case, 3 Abb. Pr. 218. See also 91 Am. Dec. 526, note.

of the best-considered decisions; and the authorities to the contrary are comparatively few.

In the determination of problems of survivorship, as in the determination of problems of identity, a wide range has been given by the law to the instrumentalities of proof. In the effort to attain satisfactory evidence of death, the usual rules that govern the admission of testimony have been to a greater or less degree relaxed. Common reputation among the kindred of the deceased ;* even hearsay statements -the declarations of persons who have themselves since died, and who were related by blood or marriage to the missing man-have been deemed admissible evidence both of the fact of death and of the date of its occurrence. In any case involving pedigree, hearsay evidence of deceased members of the family is admissible; and the term "pedigree," within the meaning of the law, embraces not only descent and relationship, but birth, marriage, and death, and the times when those events occurred.

Yet, in spite of this latitude of proof, the principles which have become so firmly established in our law as a guide to the determination of questions of survivorship leave, it will be seen, but little opportunity for the application to those questions of the teachings of medical science. In cases where persons have been found dead, the relative degree of putrefaction has not infrequently served as a material guide to the determination of the comparative duration of their lives. In the case of the death of mother and child in childbed, there was, among continental jurists, a strong presumption that the former survived, for there was prima facie evidence of still-birth; but many recorded instances attest the fact that an unborn child may in fact survive its mother.§ In some instances, too, where proof of the attendant circumstances of a disaster has been furnished, medical evidence as to the comparative susceptibility to various destructive agencies of the old and the young, of males and of females, may serve to confirm the hypothesis of the survivorship of one from among a number of the victims. Thus, in cases of suffocation, a woman, by reason of a diminished liability to asthma, is presumed, it is said, to survive a man. In cases where persons have been buried alive by earthquake or beneath some fallen weight, the younger, it is said, are likely to survive the older. Yet the probative force of such evidence is weakened by the fact that the conclusions of medical science on these topics are subject to variation through manifold disturbing causes.

Medical testimony, indeed, finds its widest scope not in lieu of, but in aid of, the other agencies of proof. Where men have perished away from human sight, the mystery of the order in which they met their death

Morrill vs. Foster, 33 N. H. 379; Am. Ins. Co. vs. Rosenagle, 77 Pa. St. 507; Mason vs. Fuller, 45 Vt. 29; Anderson vs. Parker, 6 Cal. 197; Dupont vs. Davis, 30 Wis. 170; Clark vs. Owens, 18 N. Y. 434; Jackson vs. Ety, 5 Cow. 414.

↑ Wilson vs. Brownlee, 24 Ark. 586; 91 Am. Dec. 523; Jackson vs. King, 5 Cow. 237; Fulkerson vs. Holmes, 117 U. S. 389, 397; Greenleaf, Evidence, vol. i., § 103.

Eisenlord vs. Clum, 126 N. Y. 552. But where questions of birth, death, age, or relationship are merely incidental to the inquiry, and the controversy is not purely genealogical, hearsay evidence is inadmissible. Eisenlord vs. Clum, supra, p. 566; Haines vs. Guthrie, L. R. 13 Q. B. D. 818; see, however, Wilson vs. Brownlee, 24 Ark. 586; 91 Am. Dec. 523.

Wharton and Stillé's Medical Jurisprudence, vol. ii., § 1054.

| Ibid., § 1025.

¶Ibid., § 1051.

is one that can never be solved with much assurance of success by any general consideration of medical laws. "The scene," as Judge Church has said, "passes at once beyond the vision of human penetration;" and attempts to solve the mystery leave one but the more impressed with the futility of the effort. A thousand circumstances may be suggested to shatter the theory of the survivorship of the one or the other of the victims. A thousand unknown forces may operate to neutralize the forces on which we had counted and on which our theory had been based; and so our law has said, and wisely, as it seems to me, that the general rules of hygiene will not avail to reveal to us that which no eye has seen and no ear has heard. Those rules find their true application when they are used as corroborative of conclusions that known facts may legitimately yield. They will not of themselves supply the need of proof; they will not of themselves enable us to evolve the known from the unknown.

There are cases, of course, where any determinate rule is better than no rule at all. There are rules like the rule of the road, which, as it has often been observed, might as well be one way as the other; only let the way be certain and defined. And arbitrary presumptions as to survivorship can find their vindication, if they can find it at all, only in some such consideration of the needs and the policy of the law. Yet it is very doubtful whether questions of the comparative duration of the lives of men are such as to demand an artificial and determinate test. Instances of its possible application are hardly numerous enough to make the rule in any event an urgent necessity; and the determination of the property rights of the living by a fixed and arbitrary standard cannot but involve injustice at times to those whose rights are excluded or denied. I can never believe, for my part, that it is wise, unless in matters whose solution is essentially indifferent or where some solution is imperatively required, to solve the problems of the law by artificial and formal tests. I can never believe that it is wise to place the doctrines of the law out of relation either to the teachings of experience or to the promptings of reason; and it seems to me that courts of justice, by frankly admitting their inability to solve a problem which in its nature is insoluble, will better promote the ends of their existence than by the forced assumption of a knowledge which it is not given them to have.

HOMICIDE AND WOUNDS.

BY

LEWIS BALCH, M.D., PH.D.

Homicide defined. The penal code of the State of New York defines homicide as "the killing of one human being by the act, procurement, or omission of another." (Penal Code 179.) The manner of the death, its cause, its time, and the means or weapons, with the wounds found on the body, are all questions properly referred to medical experts, they being questions of which one educated to observe the various phenomena of life and the morbid changes produced by disease or injury is expected to have the special knowledge necessary to aid the course of justice. Homicide by itself will not be further treated, but as it appears in conjunction with the consideration of wounds made with criminal intent.

Wounds defined.-Under the old English law a wound had necessarily to be an injury which in some way divided the true skin. But this would leave out of the category injuries with such weapons as would not cut or divide the skin, and which, nevertheless, would cause death. In surgery, wounds are variously classed as incised, contused, lacerated, gunshot, and punctured or penetrating wounds, while fractures of bone, although done by violence inflicted by another, are placed in a different list, to which is generally added dislocations. I fail to see any good reason why in medical jurisprudence all injuries which are caused by the attack of one person upon another should not be considered as wounds, whether it is a bruise, cut, or break; for in a severe contusion we have injury done to the soft parts, apt to be followed by death of the part so injured, and the consequent danger of septic poisoning as the resultant; and the contusion may cause rupture of an organ such as liver or kidney, which should certainly be considered as a wound. A broken bone, when the break is by violence, in contradistinction to one done for the refracture of a badly united bone, wounds for a greater or lesser extent the muscles at the point of fracture, although the wound does not extend to the outer covering. Likewise a dislocation may cause such a wounding to nerve tissue as to occasion instantaneous death, and yet there be no cutting or tearing of the skin. Scalds and burns are not ordinarily considered in the light of wounds, and are not so if the word is held to mean only a cut or torn condition of the true skin; but they are undoubtedly wounds in a legal sense when inflicted unlawfully. I am inclined, therefore, to consider a wound as an injury produced by violence whereby solution of continuity in hard or soft parts is procured, or where loss of substance from death of the part due to the violence follows its infliction. When

dealing with jurors, medical witnesses must remember they are talking to men who have not made any study of wounds or wounding, and to them the word "wound" carries the impression of some injury caused by a weapon. If the statement made above is then taken as the explanation of a wound, the juror does not have to try and learn the various kinds of wounds presented to medical students for their instruction, but has only to remember the main fact that the wound or injury, whatever its nature, was the one causing the death, could have been inflicted in the manner claimed, and was of such nature or in such position that the dead man could not have made it upon himself. He knows that the injury talked of was a wound, and that is sufficient for him.

Contused Wounds and Ecchymosis.-Wounds made by some blunt instrument may leave such traces as to lead not only to a clear statement as to what kind the instrument was, but also to the perpetrator, as the evidence given by the marks inflicted is shown to be possible only by the use of a particular weapon known to be owned and in the possession of the prisoner at the time the assault was committed. To detail these signs would be an easy task, but it becomes a far different one when such distinctive marks are wanting. A blow from a cane, bludgeon, lead pipe, or other such substance having a smooth surface with rounded edges, gives no clue as to the particular weapon, and the same kind of injury may often be made by falls. It is then only possible for the medical witness to state that such a wound could have been produced by the weapon shown, if the latter is of the character given above.

Wounds of this kind generally give the sign of a bruise, viz., the discoloration of the skin called ecchymosis. When this ecchymosis follows immediately upon the reception of the blow, the color is red or blue, being of deeper tone in its center; and it may not be anything more, for, death resulting from the blow, time is not given for the changes noticed where the ecchymosis passes through certain stages in the living body, going from blue to almost black, then purple, violet, green, yellow, and fading from the last-named color to the natural condition. This is due to the effusion of blood into the skin and cellular tissue from the rupture of capillaries or small vessels; and as the blood ceases to flow and clots, is followed by serum, and that in turn by inflammation, we have the change in color as nature gathers her forces to get rid of this abnormal condition. It is to be remembered that the ecchymosis does not always appear in the spot wounded. It does do so if it appears at once, that is, in a few minutes after the blow is struck; but the bruise does not always show at once, and then the effusion is governed by the resistance given to it and the guidance it receives as to its course by the arrangement of the tissue into which the blood is effused. Thus, when the force of the blow is transmitted to the deeper parts, or when it causes a fracture, the ecchymosis generally appears late, twenty-four to thirty-six hours after the infliction of the injury, and it is also generally at a distance from the seat of the true wound. This may be misleading unless the fact is kept in mind, for one may say when he saw the body there was no bruise upon it, and another may be equally positive the signs of severe bruising were present, for even after death the discoloration from the effused blood will make itself apparent, the laws of gravity and least resistance allowing of the blood forcibly driven from the small blood-vessels at the time of the violence to come to the surface and give the evidence of ecchymosis.