NOTES OF CASES.

IN People v. Freshorn, Supreme Court of California,

accomplice called as a witness by the State voluntarily testifies in chief on a particular subject, he may be cross-examined on that subject, even though he claims to be privileged from answering, on the ground that his answers may criminate him in other matters. The prisoner had testified that he was present at and a party to the alleged larceny, and was then asked by defendant's counsel, "state the general plan which you and the defendant entered into for stealing these cattle?" This he was excused from answering, and this was held error. The court said: "The witness should not have been permitted to separate the actual taking of the property from the plan of the parties to the taking. His recital of the alleged plan or agreement might have tended to show that the connection of defendant with the actual taking was innocent -as that he supposed the cattle to be the property of the witness, and was employed by him - or might have led to such expansion of the narrative by witness as would leave him open to contradiction, or to impeachment by reason of the improbabilities of his story. Defendant was entitled to a full history of all that tended to explain the nature and degree of his complicity with the acts of the witness. The scheme of the parties and the acts following were part of one transaction; and when a witness voluntarily testifies in chief on a particular subject, he may be cross-examined on that subject, even though his answers may criminate or disgrace him. Town v. Gaylord, 28 Conn. 309. If the witness had been compelled to give his version of the agreement, it would have aided the jury in determining how far his testimony was credible. He had already testified that there were other parties to the criminal agreement, but it was neither his moral duty nor legal privilege to protect them at the expense of the defendant on trial. If when he had given his version of the plan he had stated there were no other parties to it than defendant and himself, he would have shown that this or his former statement was untrue; if he named other parties, they might have been called to disprove the accusation, and thus discredit the whole of his testimony. It is enough, however, to say that he had already admitted that the conspiracy contemplated and provided for the commission of the particular overt act charged in the indictment. If a witness discloses a part of a transaction with which he was criminally concerned, without claiming his privilege, he must disclose the whole, 10 Fost. 540."

Our remarks on the effect of a wife's joinder in her husband's deed of land, in answer to a correspondent, ante, p. 319, are confirmed by Innis v. Pendleton, Pennsylvania Supreme Court, October 4, 1880, 11 Pitts. L. J. 73, where it is held that estoppel cannot be invoked to enforce a wife's agreement, otherwise void, for the sale of her land. The court

said: "Conceding that the acts and declarations of Mrs. Innis were sufficient to establish a waiver, in case she had been feme sole, yet it is an unquestioned fact that during the whole time she was under coverture. The question then is, were they sufficient to transfer the title of a married woman in real estate and estop her from asserting it? It is a settled rule of law that a married woman has no capacity to contract for the sale of her real estate, nor to convey it, otherwise than in the precise statutory mode conferring the power. Hepsel v. Gefser, 2 Grant, 84; Rumfet v. Clemens, 10 Wright, 455; Gliddon v. Stempler, 2 P. F. Smith, 400; Dunham v. Wright, 3 id. 167; Graham v. Long, 15 id. 383; Brown v. Bennet, 25 id. 420. The title which she did transfer according to the requirements of the statute, on the 11th of November, 1877, had reverted to her. It became hers as absolutely and unconditionally as if she had not executed that agreement. Her title then could not be sold without an instrument in writing duly executed and acknowledged by herself and her husband. Without those the instrument as to her was void and passed no title at law or in equity. Gliddon v. Stempler, supra; Dunham v. Wright, supra. The fact that she may have received a part or the whole of the purchase-money in consideration of her agreement, or induced the purchaser to make valuable improvements thereon, is insufficient to pass her title to real estate where the form of transfer prescribed by the statute has not been observed. To hold otherwise would operate as a repeal of the statute which designates the only mode in which a married woman can convey her real estate. Rumfet v. Clemens, supra; Gliddon v. Stempler, supra; Thorndale v. Morson, 1 Casey, 326; Richards v. McClelland, 5 id. 385; Pellet v. Fritz's Executors, 9 id. 118. The doctrine of estoppel cannot be invoked to enforce the agreement of Mrs. Innis for the sale of her land when her agreement was otherwise void. Legal incapacity cannot be removed, even by fraudulent representation, so as to create an estoppel in the act to which the incapacity relates. Hence it was held in Keen v. Coleman, 3 Wright, 299, that a married woman who falsely and fraudulently represented that she was single when she executed a judgment bond, thereby obtaining the consideration therefor, was not estopped from setting up her coverture as a defense to a recovery on the bond." We also refer to Shivers v. Simmons, 54 Miss. 520; S. C., 28 Am. Rep. 372, and note, 374.

In State ex rel. American Union Telegraph Co V. Bell Telephone Company of Missouri, Judge Thayer, of the St. Louis Circuit Court, has delivered an interesting decision. There was an application for mandamus to compel the defendant to connect the plaintiff's office with its wires, and give it the use of telephonic facilities. The defendant contended that it could not be compelled to do so, because by the terms of its license from the patentee of the invention it was forbidden to connect with any telegraph office or permit any telegraph company to

"Bearing in mind that the respondent serves the public as a common carrier of messages, not by keeping offices and agents of its own to which the entire public may resort, but by applying instruments to private residences and offices, and thereby enabling its subscribers to communicate directly with each other, and it becomes evident that this clause of the contract, if enforced as a valid provision, would compel the respondent to discriminate against a class of individuals or corporations engaged in a particular calling, to the extent of denying them any telephonic facilities whatsoever. In other words, a corporation created under the laws of this State, and endowed with large privileges, among others with the right to appropriate private property (presumptively on the theory that such a corporation is a public servant), is compelled by the natural operation of this provision of the contract, to withhold facilities for the transaction of business from one class of citizens which it accords to others. In my judgment, this clause of the contract is indefensible when called in question by any person or corporation injuriously affected thereby. In so far as the contract between the respondent and the patentee compels the former to discriminate against one class of its would-be customers, and to deny them the same privileges and service which it accords to others, the contract is invalid. It is not possible to admit the principle that a railroad, telegraph or telephone company may avoid the perform ance of any part of the paramount duty they owe to the entire public, by contract obligations which they may enter into, even with the patentee of an invention. If the principle were conceded, it is quite obvious that such corporations might readily avoid the performance of any public duty that became inconvenient or burdensome. It would become possible to discriminate at pleasure both against individuals or classes." "If the relator, owing to the peculiar nature of its business as a telegraph company, shall attempt to make such use of the telephone as the respondent seems to anticipate, the question as to the legality of such use can only be tried and determined when the emergency arises, and in some appropriate form of proceeding."

DECLARATIONS OF INJURED PARTY TO SURGEON AS TO CAUSE OF INJURY, CONDITION AND SYMPTOMS.

Ν

*

* *

formed in part on the statements of his patient, describing his condition and symptoms, and the causes which have led to the injury or disease under which he appears to be suffering. This opinion is clearly competent, as coming from an expert. But it is obvious that it would be unreasonable, if not absurd, to receive the opinion in evidence, and at the same time to shut out the reasons and grounds on which it was founded. Such a course of practice would take from the consideration of court and jury the means of determining whether the judgment was sound, and his opinion well founded and satisfactory. * * The party producing the witness, and who relies on his opinion, should be allowed the privilege of showing that his testimony, as an expert, is the result of due inquiry and investigation into the condition and symptoms of the patient, past and present. * The existence of many bodily sensations and ailments which go to make up the symptoms of disease or injury can be known only to the person who experiences them. It is the statement and description of these which enter into and form part of the facts on which the opinion of an expert as to the conditions of health or disease is founded." And at p. 326 he says: "It is suggested, in behalf of the defendant, that the statements in the present case were made by the plaintiff after the commencement of the action. But we do not think that for this reason only they ought to have been rejected. It was a circumstance which may have detracted from the weight of the evidence of the opinion of the physician, so far as it was founded on these statements. But as the statements were made to a medical man, for the purpose of receiving advice, they were competent and admissi ble."

The principal case is supported by Matteson v. N. Y. Cent. R. R. Co., 35 N. Y. 487. The injury occurred on the 7th of July, and consisted in concussion of the spine. Declarations made by the injured person in the following October, after suit brought, to physicians while they were examining her to ascertain her condition, were held admissible in her behalf. The court said: "Ier complaints and representations of pain and suffering, together with her appearance and conduct, necessarily formed the basis of their judgment." "This is the case, notwithstanding the examinations referred to were made by the physicians after the suit was commenced, and with a view as to their testifying therein as to the result of their examinations. It

48 Wis. 513, it was held that in an action of damages for personal injuries by negligence, the plaintiff having at the defendant's request submitted to a physical examination by surgeons, testimony that judging from the examination, including what she said at the time, and her indications of suffering, the injury complained of existed, was admissible, although the witness swore he could discover no external evidence of it.

This is based on Barber v. Merriam, 11 Allen, 322-324, where Chief Justice Bigelow says: "The

their object, and if she did know it the jury were to judge whether her representations were false or her testimony coilusive." So in Brown v. N. Y. Cent. R. R. Co., 32 id. 597, testimony that the injured party complained "all the time since the injury," was held admissible. To the same effect Caldwell v. Murphy, 11 id. 416, where the complaints were made during ten or eleven days after the injury, and in Werely v. Persons, 28 id. 344, where they were made during two or three weeks after the injury. In Aveson v. Kincaid, 6 East, 188,

the action was on a policy of insurance on the plaintiff's wife's life, the defense fraud. The wife's declarations as to the state of her health were held receivable. Lord Ellenborough said: "What were the complaints, what the symptoms, what the conduct of the parties themselves at the time, are always received in evidence upon such inquiries, and must be resorted to from the very nature of the thing."

In Chapin v. Marlborough, 9 Gray, 244, the statement of the plaintiff to his physician, several months after the injury, of the cause of injury and that he then suffered pain, was excluded as evidence of the fact of the injury. The court said: "Any thing in the nature of narration or statement is to be carefully excluded, and the testimony is to be confined strictly to such complaints, exclamations and expressions as usually and naturally accompany and furnish evidence of a present existing malady." Citing Bacon v. Charlton, 7 Cush. 586. In the latter case the complaints were three or four days after the accident.

In Kennard v. Burton, 25 Me. 39, the complaints were made while on the way home after the injury. The court said: "By the time in question is not intended the time of injury, but the time when it is material to prove a condition of bodily or mental suffering. And that may be material for weeks and perhaps months after an injury has been inflicted." To the same effect Gray v. McLaughlin, 26 Iowa, 279. And in Illinois Cent. R. R. Co. v. Sutton, 42 Ill. 438, the court said: "Not only the opinion of the expert, founded in part upon such data, is receivable in evidence, but he may state what his patient said in describing his bodily condition, if said under circumstances which free it from all suspicion of being spoken with reference to future litigation and give it the character of res gestœ."

In Denton v. State, 1 Swan, 279, it was held that the statements of a wounded man, when his wounds were being examined, in explanation of the character and extent of his injury, being part of that transaction, so far as they are necessary to communicate information upon the subject, are admissible in evidence in a prosecution growing out of the conflict in which the wound was given, but the statement of the name of the person who inflicted the injury, or as to the instrument with which it was done, constitutes no part of that information, and is not admissible.

In A Miss Goodwin v. Harrison, 1 Port. 80, an action for giving her a dose in some toddy to intoxicate and inflame her passions, her complaints to her mother the next morning were admitted "as being an exception from the general rule, founded upon the necessity of the case." This was disapproved, Brady, J., dissenting, in Spatz v. Lyons, 55 Barb.

476.

In Lush v. McDaniel, 13 Ired. L. 485, it was held that the declarations of a sick person to a physician at any particular time of his sufferings and condition are evidence so far as they refer to the time at which they are made, but not so far as they refer to their state and condition at any past time. The

court said: "It is natural evidence upon those points, as her appearance, seeming agony of body, and other physical exhibitions would be." "But the account given by her as to previous symptoms and their origin and duration would not influence the mind of the physician upon the question as one of science, but would be acted upon by him only in proportion to his belief of its truth, either from his confidence in the narrator or from its coincidence with his judgment on that point, formed from the existing stage of the malady." Exactly the same doctrine was declared in Rogers v. Crain, 30 Tex. 284; and in Wilson v. Town of Granby, 47 Conn.

The conclusion, therefore, is: First. That the complaints and statements of the injured party at the very time of the occurrence, not only as to bodily suffering but as to the circumstances of the occurrence, are admissible as res gesta. Second. That the statements of the injured party subsequently and not substantially at the time of the occurrence, as to the circumstances of the occurrence, are not admissible, whether made to a physician or to a non-expert. Third. Complaints and statements of the injured party as to his present physical condition, although subsequently to the occurrence and indeed after suit is brought for the injuries, are admissible, whether made to a physician or to one who is not an expert.

EXPERTS AND EXPERT TESTIMONY.*

BY JOHN B. CHAPIN, M. D.

N presenting the subject which forms the title of. this paper it is not the intention to attempt to clear away the difficulties which are conceded to surround it. It is the purpose to offer for your consideration some propositions which may promote discussion, and an interchange of views, which will in tho end solve the recurring problem, viz.: The conditions which are essential to enable a witness, called into court in the capacity of an expert, to appear in such a manner that his independent judgment may be secured, and that it may be presented free from bias, or the suspicion of its existence.

The practice of the courts is to admit the testimony of a class of witnesses who are not supposed to have personal knowledge of any facts or circumstances bearing upon a pending case, but on the assumption that they are able from their special training and experience to apply scientific tests and present to the court and jury the import and value of such evidence as may appear, which laymen could not be expected to comprehend and properly estimate. The expert witness may be said to be tolerated by the courtesy, and usages of the practice, of tho courts. He cannot have any other standing. That he can be compelled to furnish any testimony against his inclination is not yet clearly established. He has nothing to offer but his opinions or scientific deductions which may, or may not, in the estimation of tho court and jury, have an appreciable value.

According to the statutes and the common law, a person of unsound mind is not in a fit state for punishment, to enter upon his defense, or responsible for his acts. The opinion the medical expert offers has reference to the quality or quantity of mind at the time of

*Read before tho Association of Superintendents of American Asylums for the Insane, May, 1880.

the commission of a crime, or when some transaction took place about which a question may arise. The opinion which is presented can hardly be said to have been formed from a circumstantial knowledge of the occurrence, or as the result, in all cases, of a personal examination.

The true mental condition of the party involved is a question of fact, like other facts pertaining to the guilt or innocence of a person charged with crime, to be determined by the verdict of a jury. This method must stand until some other process of adjudication shall be accepted. To this tribunal the medical witness offers his opinion, not as he may have formed it from the whole of the evidence adduced, but upon an assumed or a hypothetical case embracing as much of it, and omitting as much, as may serve the purpose of the examiner. Courts are not disposed to remit to other tribunals the determination of issues of fact, for there" would be nothing left for the jury to determine." So carefully guarded do the courts seek to preserve the sacred province of the jury, that the medical expert, in cases where the issue is the mental condition of the party involved, is only permitted to express an opinion upon a hypothetical question, or an assumed case.

In the language of a learned judge, "a question of this character to be admissible must always be an hypothetical one, based either upon the truth of all the evidence given in the case, or upon an hypothesis specially framed of certain facts assumed to be proven for the purpose of the inquiry. Such a question leaves it for the jury to decide in the first case whether the evidence in whole or in part is true or not, and in the second case whether the particular facts assumed are or are not proved." *

Assuming this dictum to be the settled practice in conducting judicial inquiries of this nature, hypothetical questions to be propounded to medical witnesses are prepared by counsel representing opposite theories of the case, and calculated to elicit replies entirely different. Counsel confer beforehand with medical men summoned in the interests of their clients in the preparation of the questions. By a process of ingenious aggregation, or elimination of symptoms, answers favorable to either view of the case are elicited,❘ or such a congregation of circumstances presented so deficient in essentials, that the witness is unable to express any opinion.

While the courts are disposed to insist that the basis of the bypothetical question shall embrace conditions that have been developed in the course of the investigation, there is a radical defect permitted in their formation in this respect, that the hypothesis does not embody all the medical history, neither is the medical witness allowed to frame a case which will embrace a complete history of it. The witness is present to answer questions, and not, as he may be informed, to deliver a disquisition ou medical science.

The hypothesis which is presented contains just so much of the case as will elicit an answer or opinion favorable to the party in whose interest it is framed. The courts do not insist that it embrace more, but that what it does contain shall have appeared in evidence in the course of the trial. The answer to the question comes, sometimes, with the automatism of a machine. We have known the medical witness, impatient at the tedium of a protracted trial, request that he might record his "aye" and "nay" in response to the hypothetical questions as they might appear, and that he be allowed to depart. If the questions are skillfully framed the experts usually agree in their replies, otherwise they appear ranged on opposite sides offering opinions that are contradictory. The spectacle is presented of the uncertainty of medical judgment and

* Carpenter v. Blake, 2 Lans.

science, as well as of men, who ought with like premises to reach conclusions precisely similar, expressing opinions in conflict with each other.

It is not a matter of surprise that courts have announced from the bench that medical men might be better employed at home in attendance upon their patients, and that doctors are respectable men in their way, "who are called to administer to our ailments, but we are not bound to believe their opinions unless they are compatible with sound sense; doctors give opinions which are merely speculative. They have their theories and speculations. You (gentlemen of the jury) are not bound to believe the opinion of a doctor unless it comports with your common sense."

It is undoubtedly true that many cases are presented for judicial investigation which are beyond the domain of actual determination-subjects of mere opinion, uncertainty and speculation to be determined only by results. Juries, on the other hand, have furnished too many unfortunate instances of the extreme assertion of their prerogative in cases, within the knowledge doubtless of many here present, where they have ignored the expression of professional opinions, which were founded on actual experience, and should have been received with all the weight to be attached to the testimony of facts bearing upon the case.

How opinions which are merely speculative and theoretical are to be discriminated from those formed from actual professional experience it may not be easy to determine. It must be admitted that a real difficulty arises at this point. Possibly a recognition of this difficulty may have induced the judge whose language we have quoted to advise the jury, in the dilemma and amidst the conflict of professional opinion in the mazes of which he found himself involved, to adhere to and exercise their common sense. We have alluded to the fact that the practice of the courts is to admit a class of witnesses known as experts, and that the physicians of asylums and others who have relations with the insane are in a position rendering them liable to be called to give testimony in certain cases. They are also subjected to a line of examination, which, while established by the usages of the courts, is not in harmony with the course of inquiry recognized by medical men and believed by them tho method best calculated to reach a correct opinion. They are not always willing witnesses. Sometimes they attend on request, and again they are present in obedience to the commands of the court.

Such briefly being the practice, it remains to consider some of the results, one of which may be stated to be a growing distrust of the value, and we may say the honesty, of expert testimony. Want of confidence exists not only toward medical experts, but toward experts in sciences reputed to be exact. It is only necessary to point to somo recent trials to assert that the want of confidence and distrust are confined not wholly to judges and jurors, but to a certain extent pervade the community. This sentiment has its origin in various causes, among which may be mentioned:

1st. The fact that medical experts are usually summoned by counsel, and not by the court, in the interests of their side or clients, and their supposed liability to have a bias arise in the progress of the case-a possible risk that their feelings and sympathies may become enlisted in behalf of the side on which they are called.

2d. The arrangement which is sometimes made for the payment of money, or a retaining fee, to medical experts for their services, by counsel in whose interests they are summoned, the amount of which is not fixed by law, and which may possibly be contingent upon the issue of the case.

3d. The form of submission of the hypothetical ques tion which is permitted to contain a portion, and noi the whole, of what a physician may deem essential to

the formation of a satisfactory opinion, or so much as may be necessary to bring an answer favorable to the interests of one or the other parties; and,

4th. The general prejudice which exists in the popular mind against the interposition of the plea of insanity in criminal cases.

There may be a difficulty about the adoption of any new rule for the selection of witnesses other than the one in force. It cannot become a question but that under the present practice counsel have a right to summon such, and so many witnesses as may be admissible, or that a person charged with crime may avail himself of any proper line of defense at any stage of the trial, and for this purpose call witnesses. There is no doubt, however, that the results which we have pointed out, are in great part to be attributed to the existing practice. As a profession we have the right of respectful protest, and to ask that a mode of procedure calculated in its operation to bring discredit upon the profession be changed. To effect a change, legislation must be invoked to alter the practice so that the law confer upon judges alone the power to subpoena experts in such cases where their opinions would seem to be desirable. There can be no doubt the power thus conferred would be exercised wisely and result in elevating the standing and character of expert testimony, and what is more important, restore to experts that independence of judgment and respect for their opinions we do not believe they enjoy under the present system. No suspicion of bias could then properly attach to them. They would then assume their appropriate and originally-intended relation to the court that of amicus

curiæ.

It has been urged as a defense of the present system that each party in interest is entitled to have as full an exposition of expert knowledge as can be brought forward to serve the respective interests that in other words, medical experts should be permitted to say as much as possible in behalf of the cause in which they are engaged, and as little as possible that may serve the opposite party. This course is hardly admissible, as it ignores the true position of the expert and converts him into that of a quasi counsel.

The physician by study and actual experience acquires knowledge and matured judgment which is peculiarly his own property and capital, the independent use and enjoyment of which ought to be as fully assured to him as if the avails of his life-work were invested in goods and land. His goods and land cannot be taken from him without his consent or some process of law, and his proprietary right to his professional experience ought to be as sacredly guarded, and secured to him.

If the knowledge and experience of the expert is a necessity, and if the principles laid down above are correct, he should unquestionably be paid for the service he renders. Ought the compensation to be the subject of a private bargain between the expert and parties interested in his testimony, or be fixed in a manner authorized and provided by law? Certainly, whatever plan will elevate the expert witness above all suspicion of bias, and conduce to his independence, would seem the more desirable one-indeed the best. The witness appears before the court and jury to submit his opinion on a hypothesis the elements of which are made up from evidence already adduced. He is not a juror, but a quasi juror. Extreme caution is taken that jurors themselves shall have no pecuniary relations with parties interested in the result of the trial, and penalties are imposed for a violation of a rule intended to preserve the purity of the jury box. It would therefore seem to be the proper and obvious course to authorize and direct the court in all cases where experts appear, to fix and determine their compensation, in its discretion, and if deemed necessary to go further, prohibit by positive enactment the recep

tion of any gift or compensation for expert services directly from parties interested.

The composition of the hypothetical question and the time of its submission have been alluded to as causes tending to bring discredit upon expert testimony. They are believed to exert a decided influence in that direction. The expert testimony is introduced at successive stages of a trial, and if the question is so framed as to include generally what has been produced in evidence to a certain period of the trial it necessarily embraces but a portion of the whole case. The consequence is that at one stage of the trial a hypothesis will admit of one answer by an expert, and at a subsequent stage another hypothesis framed from additional evidence warrants another, and exactly opposite answer. There is presented an apparent conflict of professional opinion between "two trained bands of witnesses in battle array against each other," with the possible and probable result of lowering, in the estimation of the court and jury, the value of the whole expert testimony. We know of no remedy for this except it may be found by changing the rule and permitting experts to express an opinion on a hypothetical question which embraces, in the judgment of the medical expert, all the points bearing on the question of insanity, where this is involved. A medical opinion formed after hearing one side of a case is deserving of no more respect, and has no more value, than a verdict of a jury formed in a similar manner, or the opinion of a high court of appeal, the judges of which are in a sense experts in law, rendered after argument on one side only.

The frequency with which expert testimony has been introduced in judicial proceedings leads to the conclusion that it is destined in the future to bear a still more important part. The influence which it will exert upon the issues of trials, and the respect in which it will be held, will depend greatly upon the independence of the witness, and his absolute freedom from circumstances calculated to produce a bias or even the suspicion of its existence. Whatever may conduce to these results: to the elevation of the standard and character of the medical expert, it should be our highest duty to promote. Notwithstanding the respect we may have for the usages and established traditions of the law, however willingly the medical witness may feel disposed to assume grave responsibilities which are imposed, and not coveted, we still believe the right of respectful protest should be vigorously exercised against practices which tend so frequently to depreciate the estimation in which he and his opinions ought to be held.

VALIDITY OF FOREIGN MARRIAGE-PROOF OF HANDWRITING-PROOF OF FOR

EIGN LAW-PRESUMPTIONS.

NEW YORK COURT OF APPEALS, SEPTEMBER 21, 1880.

HYNES V. MCDERMOTT et al., appellants. Where enough took place upon a vessel crossing the English channel and afterward in France between a man and woman to sustain the finding of a jury that there was a marriage between them if such transactions had taken place in the State of New York, held, that such a finding would be sustained, there being no proof as to the law of France in relation to marriage, nor of the nationality of the vessel upon which the parties mentioned crossed the channel.

There can be no comparison of handwriting by an expert unless the pieces of writing by which comparison is made are properly in evidence in the case for some purpose other than that of being compared.

A comparison of a signature in dispute with photographic copies of other writings for the purpose of allowing an opinion of an expert as to the character of the signa