COMPETENT EXPERTS IN CASES OF INSANITY. 59 Fraces not only all physicians, but ali experts, and leaves the question of Opinion evidence by skilled experts narrowed to the true rule of opinion, testimony by skilled witnesses, and should be confined to hypothetical questions, a fact frequently lost sight of by courts and counsel. a. Opinions of experts which usurp the functions or province of the Jury are inadmissible, and should have little weight with courts or juries. For example, the question of insanity is a question of fact to be shown by evidence. The question of whether the accused is responsible is a question of law. The opinions of a medical expert, who by his opinion passes on the question of responsibility, usurps the functions of the jury, and such testimony lacks all the elements of evidence, and should have no weight: Buswell on Insanity, sections 253 and 254; Princep v. Dyce Sombre, 10 Mo. P. C. 232; Stackhouse v. Horton, 2 McCart, 202: WatSon c. Anderson, 13 Ala. 202; McAllister v. State, 17 Ala. 434; Slais v. Slais, 9 Mo App. 96; Francke v. His Wife, 29 L. Arm. 302; Parnell v. Commonwealth, 86 Penn. St. 260; Regina v. Richards, 1 F. & F. 87; Fairchild v. Bascombe, 35 Vt. 398; The Province of Medical Expertism, by Judge Chas. G. Garrison, Med. Legal Journal, 1890, p. 486. b. It has been held "that the opinions of medical experts upon the subject of insanity are to be received with peculiar caution, for the reason that while an expert in the exact sciences, or in mechanics, has tangible or ascertainable facts on which to base his opinions, those scientists who profess to understand the quality or emotions of the human mind, have in great part to rely upon mere conjectures for their inductions, which are often warped or fitted to pet theories or prejudices." The trend of judicial thought in America and England is, that the mere opinions of medical experts are of little or no value, in enlightening courts or juries as to the facts of the cases which are to be determined: People r. Lake, 12 N. Y 358; Buswell on Insanity, section 253; Doughty v. Doughty, 3 Halst. Ch. 643; People v. Finley, 38 Mich. 482; Regina v. Southey, 4 F. & F. 864. And in New York it has been held, that where an expert witness has heard all the testimony and based his opinions upon it, he is not competent to give an opinion upon the general question of sanity or insanity; because his answer practically usurped the province of the jury, and that he should only be allowed to give an opinion as to what the facts proved or claimed to be proved indicated as to the mental condition of the party: People v. Lake, 12 N. Y. 358; People v. Thurston, 2 Parker Cr. (N. Y.) 49: Sanchez v. The People, 22 N. Y. 147; Arnold's Will, 14 Hun (N. Y.), 525; Hagadorn v. Conn. Mut. Life Ins. Co., 22 Hun (N. Y.), 249. 9. The dicta of the court in Conn. Mut. Life Ins. Co. v. Lathrop, 111 U. S. 612, in explaining the reason of the now almost universal rule allowing any one, and especially non-experts, to give an opinion based upon facts within their own personal knowledge correctly states the law and the reasons of its general adoption. "Whether an individual is insane or not is not always best solved by abstruse metaphysical speculations expressed in the technical language of medical science. The common sense, and we may add the natural instincts, of mankind reject the supposition that only experts can approximate certainty upon such a subject." "The truth is, that the statement of a non-professional witness, as to the sanity or insanity at a particular time of an individual whose appearance, manner, habits, and conduct come under his personal observation, is not the expression of a mere opinion. In form it is opinion, because it expresses an inference or conclusion based upon observation of the appear 60 COMPETENT EXPERTS IN CASES OF INSANITY ance, manner, and motions of another person, of which a c cannot well be communicated in words to others, without more or less the impressions or judgment of the witness. But stantial sense, and for every purpose essential to a safe cone mental condition of an individual as sane or insane is a j indeed, a fact established by direct and positive proof, because not all, cases, it is impossible to determine, with absolute cer precise mental condition of another. Yet, being founded on ac vation, and being consistent with common experience and th manifestations of the condition of the mind, it is knowledge sc human intellect can acquire knowledge upon such subjects.' a. As to the disposition, characteristics, or idiosyncrasies of any witness who knows is competent to testify and need not be (1) As to whether he was fickle-minded: Mills v. Winter, 9(2) Whether he was intoxicated: City of Aurora v. Hillman, State v. Huxford, 47 Iowa, 16; Stacy v. Portland Put. Co., 68 Pierce v. State, 53 Ga. 365; State v. Pike, 49 N. H. 407. (3) Whether he was angry at a certain time: State v. S Iowa, 333. (4) Peculiar affection for a third person, if known to the observed by him: McKee v. Nelson, 4 Cow. (N. Y.) 355; s. Dec. 384. b. Masters of vessels or experienced seamen may give their of questions pertaining to nautical science or affairs. For exam Delaware & Co. v. Starrs, 69 Pa. St. 36; Baird v. Daily, 63 N Western Ins. Co. v. Tobin, 32 Ohio, 77; Perkins v. Augusta In Gray (Mass.), 312; Parsons v. Mig., etc., Ore Co., 16 Gray (Ma Zugasti v. Lainer, 12 Moore P. C. 331; Reed v. Dick & Watts ( Jameson v. Drinkald, 12 Moore, 148; Fenwick v. Bell, 1 C. Carpenter v. Eastern Trans. Co., 71 N. Y. 574; Dolz y. Morris Sup. Ct. 202; Steamboat Clipper Co. v. Logan, 18 Ohio, 37 Glass Co. v. Lovel, 7 Cushing (Mass.), 319; Eastern Trans. v. U. S. 297; Walsh v. Wash., etc., Ins. Co., 32 N. Y. 427; Guit Liverpool, etc., Ins. Co., 83 N. Y. 358; Ogden v. Parsons, 23 Howar 167; Lapham v. Atlas Ins. Co., 24 Pick. (Mass.) 1; Paddock v. Co., 104 Mass. 521; Moore v. Westervelt, 7 Bosw. (N. Y.) 558 Powell, 3 N. Y. 322; Leitch v. Al. Mut. Ins. Co., 66 N. Y. 100. c. Opinions may be given by persons skilled therein concer running and management of railway trains, and as to questions c railway construction, repairs, or management: Bellefontaine, etc v. Bailey, 11 Ohio, 333; Seaver v. Boston, etc., R. Co., 14 Gray 466; Cinn., etc., R. Co. v. Smith, 22 Ohio, 227; Mobile, etc., Blakely, 59 Ala. 471; Jeffersonville R. Co. v. Lanham, 27 Ind. ton v Mason, 92 Ind. 157; Fitts v. Creon City R. Co., 59 V Baldwin v. Chic., etc., R. Co., 18 Am. Law. Reg. 761 and note Iowa, 680. d. Generally an artizan, mechanic, or person skilled in any avocation, or calling, may be examined as to matters relating to cation, concerning which he is shown to have peculiar and knowledge. Examples: Sheldon v. Booth, 50 Iowa, 209; Sca v. Wood, 79 N. Y. 263; Burns v. Welch, 8 Yerg. (Tenn.) 117; People, 34 Ill. 516; Union Pacific R. Co. v. Clopper, 102 (U Woodruff v. Imperial Fire Ins. Co., 83 N. Y., 133; Ward v. K 85 N. Y. 413; Campbell v. Russell, 139 Mass. 278; Terre H Hudnut, 18 Am. and Eng. Corp. Cas. 302; Folkes v. Chadd, HYPOTHETICAL QUESTIONS. 61 (Meh.) 157; Barnes v Ingals, 39 Ala. 193; Davis v. Mason, 4 Peck. (Mas) 156; Knox v. Clark, 123 Mass. 216; Brantly v. Swift, 24 Ala. 30: Phelps v. Terry, 3 Abb. Dec. (N. Y.) 607. e. Competent experts, qualified by study and experience, may testify as to the identity or genuineness of handwriting: Plunkett v. Bowman, 2 McCord (S. Car.), 139; Morrison v. Porter, 35 Minn. 425; s. c. 59 Am. Rep 331; Moore v. United States, 91 U. S. 270. f. Foreign laws can be proved by an expert shown to be competent, if written. If written, a certified copy is the best evidence: Talbot v. Seman, 1 Cranch (U. S.), 1; Drake v. Glover, 30 Ala. 382; Shed v. Augustine, 14 Kansas, 282; Church v. Hubbard, 2 Cranch (U. S.), 187;' Dougherty v. Snyder, 15 S. & R. (Pa.) 84; Walker v. Forbes, 31 Ala. 9: Hoes v. Van Alstine, 20 Ill. 202; Barrows v. Downs, 9 R. I. 446, 453, Roberts's Will, 8 Paige (N. Y.), 446. 10. Opinions of witnesses are never received, if all the facts can be otherwise ascertained and made intelligible to the jury, or if the question is one that men in general can understand and comprehend: Clark v. Fisher, 1 Paige (N. Y.), 171; s. c. 19 Amer. Dec. 402; Stowe v. Bishop, 58 Vt. 49; Penn Co. v. Conlan, 101 Ill. 93; Passmore's Appeal, 27 N. W. Rep. fol; Hallahan v. N. Y., etc., R. Co., 102 N. Y. 104. 4. Concerning the ordinary affairs of life the jury can form intelligent opinions, and opinions of experts are inadmissible: Bemis v. Centr. Vt. R. Co., 58 Vt. 636; Milwaukee, etc., R Co. v. Kellogg, 94 U. S. 469; Schneider . Barney, 113 U. S. 645; Durrell v. Bederly, 1 Holt, 285; Campbell v. Richards, 5 B. & Ad. 846; Carter v. Boehm, 3 Burr, 1905; Hizzins v. Dewey, 107 Mass. 494; Neilson v. Chic., etc., R. Co. 59 Wis. 516; s. c. Watson v. Milwaukee, etc., R. Co., 57 Wis. 332; Gilbert v. Guild, 144 Mass. 361; Knole v. State, 55 Wis. 249; s. c. 42 Am. Rep. 704. 11. The competency of an expert is a question for the court, and it must be clearly shown before his testimony can be received as an expert: Stennett v. Pa. Ins. Co., 68 Iowa, 674; Russell v. Crittenden, 53 Conn. 564: Ft. Wayne v. Coombes, 107 Ind. 75; Higbee v. Guardian Ins. Co., 53 N. Y. 603; Russell v. Crittenden, 53 Conn. 564; Hinds v. Harbon, 5 Ind. 121; McEwen v. Bigelow, 40 Mich. 215; Dole v. Johnson, 50 NH 452; Castner v. Sliker, 33 N. J. L. 96; Flint v. Bodenheimer, 80 N. Car. 205; Perkins v. Stickney, 132 Mass. 217; Wright v. Williams's Estate, 47 Vt. 222. 12. Hypothetical Questions.-The rule is, that a party is entitled to put his case hypothetically, as he claims it to have been proved, and take the opinion of the witnesses thereon, leaving the jury to determine whether the question put covers the case as proved: Bishop v. Spining, 38 Ind. 143: Guetig v. State, 66 Ind. 94; Goodwin v. State, 96 Ind. 550; Cowlev r. People, 83 N. Y. 464; s. c. 38 Am. Rep. 464; Quinn v. Higgins, 63 Wis 664; s. c. 53 Am. Rep. 305; Page v. State, 61 Ala. 16; Boardrane. Woodman, 47 N. H. 120; Yardley v. Cuthbertson, 108 Pa. St. 395; & c. 56 Amer. Rep. 218; Dexter v. Hall, 15 Wall. (U. S.) 9; Comtonwealth v. Rogers, 7 Met. (Mass.) 500; s. c. 41 Amer. Dec. 458; Forsyth v. Doolittle, 120 U. S. 73; State v. Cross, 68 Iowa, 180; Morrill Tegarden, 19 Neb. 534; Ray v. Ray, 98 N. Car. 566; People v. Augs burgh, 97 N. Y. 501. 4. The court should allow counsel great latitude in framing a question hased upon the facts as claimed to be proved, if evidence tending to show 'he facts as claimed to be proved has been given; but the court should not allow hypothetical questions based on alleged facts which have not been proved, or not within the range of legitimate evidence, or containing 62 COMPENSATION OF EXPERTS. inferences or conclusions, or when they ask for conjectures omitting material facts that are conclusively shown: Goodw 90 Ind. 550, disapproving People v. Thurston, 2d Park. Crim Y.), 49; Strong v. Stevens Point, 62 Wis. 255; Haisle v. I Ill. 365; Cowley v. People, 83 N. Y. 464, and cases there cit v. Guardian, etc., Co., 53 N. Y. 603; State v. Stanley, 34 Min 13. It is the peculiar province of the jury to decide what wei they will give to the opinion of an expert. They are not be and may exercise their own experience upon the subject as to w it is entitled to receive. The court has no power over it, and where judges have juries to give greater weight to the evidence of professional than to non-expert evidence, the verdicts have been set aside Congress, etc., Co. v. Edgar, 90 U. S. 645; Schwenger v. Ray N. Y. 648; Guetig v. State, 64 Ind. 94; State v. Bailey, 4 La. Von Valkenburgh v. Von Valkenburgh, 90 Ind. 433; Stone v etc., R. Co., 33 N. W. Rep. (Mich.) 24; Head v. Hargrave, 45; Atchison, etc., v. Thul, 32 Kan. 255; Davis v. State, 35 McGregor v. Armill, 2 Iowa, 30; Tolum v. Mohr, 21 Ark. 349 v Barrett, 21 La. Ann. 58; Sanders v. State, 94 Ind. 147; Montgomery, 13 Abb. Pr. (N. S.) (N. Y.) 207; Cunee v. Be Ind. 524; State v. Cole, 63 Iowa, 695; Epps v. State, 102 United States v. Molloy, 31 Fed. Rep. 19; Templeton v. Peop (N. Y.), 357; Eggers v. Eggers, 57 Ind. 461; Goodwin v. Staf 550; Humphries v. Johnson, 20 Ind. 190; Spenaley v. Lanca Co., 62 Wis. 443. 14. An expert witness cannot be compelled to give his opin expert, unless he is compensated. He cannot be punished for contempt in refusing to appear or such without he is compensated, but he can be compelled to a testify to facts within his knowledge, the same as any other with out compensation above the statutory fee to which any witness is Buchanan v. State, 59 Ind. 1; s. c. 26 Am. Rep. 75; 17 All 242; Dillis v. State, 59 Ind. 15; Webb v. Page, 1 E. & K. 23; 1 v. Atkinson, 31 L. J. (N. S.) C. P. 199; In re Roelker Spra People v. Montgomery, 13 Abb. Pr. (N. S.) 207; United States 12 Cent. L. J. 193. The courts of Alabama and Texas have held that experts are no to extra compensation: Ex parte Dement, 53 Ala. 389; Sumner 5 Tex. App. 365; but the weight of authority is otherwise. Th has been exhaustively treated by Lawson in his work on Ex Opinion Evidence, and by Rogers on Expert Evidence. The medico-legal authors all treat it, but in a general way. them: Wharton & Stillé (1882); Dean (1873); Elwell (1881), McClellan (1872); Ordronaux (1869), (1878); Medico-Legal Pape 1, 2 and 3 (N. Y.); Taylor (all English and Phil. editions); W & Tidy (1876), (1884); Naquet's Legal Chemistry (1876); T Poisons (1875); Field's Medico-Legal Guide (1882); Reese, M & Tox. (1884), (1889), (1891); Bucknill & Tuke (all editions). The law authors on Evidence (Wharton, Starkie, Greenleaf, Best, Wood) all treat the subject in their works on Evidence, the student and the expert should refer; vid. also Prof. Wa paper in 1 Am. Law Review, 62. For references to authorities and decisions, the American and Encyclopædia of Law and Abbott's New Digest are the best so information.] SYNCOPE. 63 CHAPTER III. MODES OF DYING.-SYNCOPE, ASPHYXIA, COMA.—SUDDEN DEATH.-SIGNS OF DEATH.-CES- PUTREFACTION MIS MEDICAL jurisprudence takes cognizance of all violent causes of death, and is only indirectly involved in those cases of natural death which simulate the effects of violence. Thus, all causes which operate to produce death suddenly especially demand the attention of a medical jurist. These may be either natural or violent; and the distinction between them is of importance, since the guilt or innocence of a person charged with crime may depend on a correct determination of the cause. The continuance of life depends upon the proper and regulated action of the heart, the lungs, and the brain; and the interdependence of these organs is such that the arrest of the functions of one of them is speedily followed by the arrest of the functions of the others. Hence, they have been called the tripod of life. When the suspension of the motions of the heart is the primary cause of death, the person is said to die by syncope. The term asphyxia is applied to death which begins by the lungs; and coma to that which arises from a primary disturbance of the func tions of the brain. Syncope (ovуxónτw, signifying to strike down).-In order that the action of the heart should be maintained, it is necessary, first, that the blood supplied to it should be in sufficient quantity; and, secondly, that this blood should be of proper quality. In death from hemorrhage we have an instance of deficiency, and in death from certain poisons as well as diseases, an illustration of defect of blood (asthenia). In ordinary syncope (fainting or swooning) there is simply a deficiency in the quantity of blood which passes through the heart, although there is no actual loss of this flaid from the circulation. Certain diseases which affect the muscular structure of the heart, as well as its valves and blood vessels, may also lead to a sudden arrest of its functions. These morbid conditions produce a mechanical impediment to the motions of the organ by which the blood is propelled, and death by syncope is the necessary result. One of the most striking of the phenomena which attend this mode of dying (death) from hemorrhage or anæmia) is an extreme palor of the face, hands, and lips, and indeed of the body generally. The patient is very restless, tossing the limbs about in all directions. Giddiness and nausea are often complained of, and actual vomiting may occur. In many cases vision is extinguished, everything appearing black. There is transient delirium, which soon passes into insensibility. The pulse becomes more and more weak and irregular, until at length it is imperceptible. The respiratory movements are repeated at uncertain intervals, and have a sighing or gasping character. Towards the last there are general convulsions (Fagge on the Different Modes of Dying, Guy's Hosp. Rep., 1879, p. 343). In these cases the heart is found empty and contracted at the autopsy. When, however, from any cause, there is sudden stoppage of the heart, the right and left cavities of this organ are found to contain blood in the |