COLUMBIA LIBRARIES OFFSITE HEALTH SCIENCES STANDARD HX64076199 RA1051 F45 Field's Medico-legal ' E. A. TlTCKKK. 'JUuryc/v. iu Columbia SainibersJitp in ttie Citp of i9eio gork College of 3^\)viitimi mh ^urgeonsi l^titxmtt %ihxavv FIELD'S A^^.jif/^j_ MEDICO-LEaiL GUIDE DOCTORS AND LAWYERS, EMBRACING THE FOLLOWING SUBJECTS: MEDICAL WITNESSES; MEDICAL EXPERT TESTIMONY j INSANITY AND ITS LEGAL RELATIONS i PRIVILEGED COMMUNICATIONS ; ABORTION i CIVIL LIABILITY OF MEDICAL MEN FORMAL PR A C TICE ; CRIMI- NAL LIABILITY FOR MALPRACTICE ; LIA- BILITY FOR PRACTICING IN VIOLATION OF STATUTES; DAMAGES; COMPEN- SATION; MEDICAL ETHICS. BT GEORGE V^. FIELD, LL. B. BANKS & BKOTHERS : ALBANY, NEW YORK, 473 and 475 Broadway. 144 Nassau Street, 1887. Entered according to Act of Congress, in the year eighteen hundred and eighty-seven, By George Washington Field, In the ofBce of the Librarian of Congress, at Washington, D. 0. "^O^'^On, V\4vvC-Jl, Vx^^vt^.M TABLE OF CONTENTS. CHAPTER I. MEDICAL WITNESSES. § 1. Compulsory attendance of. 2. The oath j and religions belief. CHAPTER II. MEDICAL EXPERT TESTIMONY. § 3. In general ; the opinions^of medical men. 4. Unsatisfactory character of expert testimony, 5. Opinions of medical men as to sanity. 6. Where opinions rest upon personal examination, the facts should be stated. 7. Governmental experts recommended. 8. Opinions of non-expert witnesses ; when allowed. 9. Distinction between expert and non-expert witnesses^ CHAPTER III. INSANITY AND ITS LEGAL RELATIONS. f 10. Varieties of unsoundness of mind. 11. Insanity defined and described. 12. Amentia ; what it embraces. 13. Imbecility ; what it embraces. iv TABLE OF CONTENTS. § 14. Cretinism. 15. Idiocy. 16. Imbecility. 17. Question of civil and criminal liability of imbeciles considered. 18. Imbecility as an excuse for acts civil and criminal. 19. Moral imbeciles. 20. Dementia distinguished from amentia. 21. Legal relations of dementia — in case of wills. 22. Mania defined. 23. General mania ; character of. 24. Intellectual mania. 25. Partial mania, or monomania. 26. Delusions and hallucinations in general. 27. Moral and effective mania ; morbid impulses. 28. Homicidal mania, or the propensity to kill. 29. Kleptomania, or propensity to steal. 30. Disinclination to regard it as a defense. 31. Pyromania, or a propensity to burn ; and aidoimania, sexual prox)ensity. 32. These have not received much favor as a defense. 33. Alcohol ; its uses and effects. 34. The psychological effects of alcohol. 35. Alcoholism defined. 36. Quininism ; similarity of symptoms to alcoholism. 37. Delirium in general. 38. Legal relations of delirium. 39. Delirium tremens, or mania a potu. 40. Symptoms and general characteristics of delirium tremens. 41. Legal relations of delirium tremens. 42. Civil acts of persons of unsound mind. 43. In case of wills. TABLE OF CONTENTS. V § 44. Conduct and declarations of the testator. 45. The test of capacity to manage business. 46. Doctrine as to the burden of proof. 47. General presumption. 48. Test of capacity to contract. 49. Liability for torts. 50. Unsoundness of mind as a defense to a criminal charge. 51. Insane delusions and irresistible impulses. 52. Common sources and manifestations of insane delu- sions. 53. Test of capacity required for criminal responsibility. 54. Impulsive mania, or uncontrollable impulse. 55. Defense on the ground of. 56. In case of drunkenness ; legal responsibility. 57. Drunkenness as a mitigation of criminal acts. 58. Delirium tremens as an excuse in criminal cases. 59. Dreaming ; illusions and delusions common to. 60. Legal relations of dreaming. 61. Somnambulism; common manifestations of. 62. The legal relations of somnambulism. 63. Statutory provisions relating to the responsibility of persons mentally unsound. 64. Construction of statutes and the common law on the subject. 65. Rules suggested on examination of mental condition. CHAPTER IV. PRIVILEGED COMMUNICATIONS. 66. At common law, between attorney and client. 67. Protection of confidential communications by statutes. VI TABLE OF CONTENTS. § 68. Protection of confidential communications made to clergymen or priests. 69. The pri\dlege may be v/aived. 70. Construction of the statutes on the subject. 71. The g-eneral rule applicable to other professions. 72. Illustration of the rule in case of surgeons. CHAPTER Y. ABORTION. § 73. Defined ; quick with child explained. 74. Maternal causes of abortion . 75. Foetal causes of aboi'tion. 76. Natural and innocent causes of abortion. 77. Artificial and innOcent abortion ; premature labor. 78. Chief methods employed to produce abortion. 79. Criminal abortion ; methods of procuring. 80. Statutory provisions on the subject. 81. Construction of statutes on the subject. 82. In case death results fi'om p]-oducing\ 83. The killing of a quick child, or of a woman quick with child, in attempts to produce unlawful mis- carriage. 84. Signs of abortion during the life of the patient. 85. Signs on examination of a female after death. 86. Examination of the foetus ; strains, etc. 87. Infanticide ; distinction between, and foeticide. 88. Evidence of life subsequent to birth of child. 89. Modes of destroying the life of a child after birth. 90. Summary of matters to be observed on examination of the body of the woman to determine the ques- tion of abortion. 91. Indictments; evidence. TABLE OF CONTENTS. Vll CHAPTER VI. CRIMINAL LIABILITY FOR NEGLIGENCE OR MISCON- DUCT. § 92. Statutory provisions on the subject. 93. General criminal liability at common law for mal- practice. CHAPTER VII. practice without a license or diploma 'prohibited. § 94. General provisions of statutes on the subject. 95. Criminal liability for practicing- without license. 96. Criminal liability for causing death by administering a drug or medicine in a state of intoxication. 97. Removal of attorneys for misconduct. 98. Duty of attorneys to the court. 99. Disbarment or suspension of an attorney not neces- sarilysfinal. CHAPTER VII. civil liability for MALPRACTICE. § 100. Various kinds of malpractice defined. 101. Liability for damages in general for malpractice, 102. Skill required of a surgeon or physician. 103. Not bound to use the highest degree of skill. 104. Implied duty of the physician or surgeon. 105. These general principles applicable to dentists. 106. Instance of the liability of a physician in a special case of impropriety. 107. Proof of malpractice ; burden of. Vlll TABLE OF CONTENTS. CHAPTER YIII. DAMAGES. § 108. Matters in defense or mitigation. 109. In case of contributory negligence. 110. Punishment for the crime no defense to civil action. 111. The measure of damages. CHAPTER IX. COMPENSATION. § 112. The contract for services and compensation may be express or implied. 113. Common presumptions ; amount of compensation implied. 114. "Where the request for services is made for the ben- efit of another. 115. Intrusive and voluntary services. 116. Measure of value of services. 117. Judgment for services a bar to action for mal- practice. 118. Statutes regulating the collection of compensation. 119. Proof of a diploma from a medical college. CHAPTER X. MEDICAL ETHICS. § 120. Code of medical ethics of the state of New York and other states. MEDICO-LEGAL GUIDE, FOR Doctors and Lawyers, CHAPTEE I. MEDICAL WITNESSES. § 1. Compulsory attendance. A physician or surgeon may be required to appear and testify in courts or before judicial or other officers, either as an ordinary witness oi as an expert, and either orally or by deposition, in the same way as a non-professional person, that is, upon due service of a subpoena upon him, commanding him to do so. In various states the party thus served with a subpoena may, at the time of service, if it be in a civil case, de- mand fees in advance, usually lixed by statute, 2 field's medico-legal guide. as for one clay's attendance and mileage*; and a failure to pay him such sum would usually con- stitute an excuse for non-attendance. Witness fees are fixed by statutes in the various states, and the amount may vary in different courts in the same state. And usually in the various states expert witnesses are allowed more than common witnesses for attendance, w^hich amount is general!}^ fixed by statutes. When a subpoena has been duly served, and the fees advanced when demanded, if the witness is entitled to advance fees, it is the duty of the person thus served to obey the command of the writ, and a failure to do so without some reasonable cause, — such as physical infirmity or some accident which ren- dered it impossible, would be a contempt of court, and subject the offender to fine or impris- onment or both. On these subjects it may be necessary to consult the local statutes, or some law- yer, for information where it is important : See 1 Greenl. on Ev., §§ 309, 310 ; Best on Ev. (Morg. Am. ed.), § 125 ; 3 Field's Lawyers' BriefX §§ 297, 335 ; 1 Phil, on Ev. 116 ; Field's Fed. Courts, § 225 ; Rev. Stat. U. S., §§ 848, 870. MEDICAL WITNESSES. 3 § 2. The oath — religious belief. Passing all questions relating to tlje compe. tency of witnesses in general, we will consider briefly the oath, affirmation or asseveration re- quired of the witness, by which he promises to tell the truth in reference to matters under con- sideration and to which he is called to testify. It Avas affirmed by Lord Coke, who represented the bigotry of the age in Avhich he lived, that an infidel could not be a witness, which would ex- clude Jews, Mohammedans and all pagans, and iu fact all who were not Christians : 7 Co. 17 ; PufFendorf, b. 4, c. 2, § 4 ; Best on Ev. (Morg. Am. ed.), § 134. A former test of the qualifica- tion of a person to take an oath was that he be- lieve in a God who will punish fiilse swearino; in a future life. But these tests have generally been discarded by custom or abolished by statute. The form of administering the oath may ]je varied to conform to the religious belief of the individual, so as to make it binding upon his conscience ; and it may be administered by any ceremony calculated to accomplish the object. A Jew may be s\vorn upon the Pentateuch or Old Testament (with his head covered) ; a Mo- 4 field's medico-legal guide. hammedan on the Koran ; a Gentoo bv toiichino^ with his hand the foot of a Brahmhi or priest of his reliction ; a Brahmin bv touchino^ the hand of another such priest ; a Chinaman by breaking a China saucer ; a Christian by laying his liand upon tlie New Testament while a familiar for- mula is repeated. In various states, under statutes, it is suffi- cient for the witness merely to hold up a hand while the usnal formula is being repeated by the proper^ officer. And in most of the states he may merely declare or affirm, if he elects so to do, the proper officer in the presence of the wit- ness merelv statino- that the witness does so de- clare or affirm that he will tell the truth, to which the witness assents orall}^ or by a nod of the head : See Bouv. L. D., Oath; Best on Ev. (Morg. Am. ed.), § 163 ; 1 Greenl. on Ev. (7th ed.), § 328 ; Tyler on Oaths, 15 ; 1 Whart. C. L. (7th ed.), §§ 795-799 ; 3 Field's Lawyers' Briefs (sub. Evidence), § 302. The objection to the competency of witnesses who have no relisfious belief is removed in Ens^- land and in most of the states by statutory en- actments : 1 Whart. on Ev., § 395. CHAPTER II. MEDICAL EXPERT TESTIMONY. § 3. In general ; opinions of medical men. Expert witnesses are those who are admitted to testify from a peculiar knowledge of some art or science, a knowledge of which is requisite or of value in settling the point at issue : Bouv. Law. Die, Experts. They are persons profes- sionally conversant with the practice, science, skill, or trade in question : Best on Ev., § 346 ; Strickel on Ev. 408. On this sul)ject Mr. Greenleaf observes : " On questions of science, skill or trade, or others of a like kind, persons of skill, sometimes called experts, may not only testify to facts, but are permitted to give their opinions in evidence. Thus the opinions of medical men are constantly admitted as to the cause of disease or death, or the consequences of woimds, or as to the sane or insane state of a person's mind, as collected from a number of circumstances, and as to other sub- jects of professional skill. And such opinions 6 field's medico-legal guide. are admissible in evidence, though the witness founds them, not on his own personal observa- tion, ])ut o]i the case itself, as proved b}^ other witnesses on the trial : " 1 Greenl. on Ev., § 440 ; Phil. & Am. on Ev. 899 ; Stark, on Ev. 154 ; a FieRVs Lawyers' Briefs, § 317 ; Hardy v. Merill, 57 N. H. 227 ; 22 Am. Rep. 441. It may be observed, generally, that a witness is not required to testify in a positive manner, but he may state his impression as to occurrences, facts or events, from his knowledge or recollec- tion of them, and he has the right, and may be compelled to refresh or assist his memory, where it is at fault, by reference to a written instrument, memoranda, or other document. 1 Greenl. on Ev., § 440 ; Blake v. People, 73 N. Y. 586 : Reed v. Boardman, 20 Pick. (Mass.) 441 ; Kan V. Stivers, 34 la. 123 ; 3 Field's L. B. (sub. Ev- idence), § 318. A witness havino^ some knowled^T. of the value of property may give his opinion of its value : Emerson v. Gas Co., 6 Allen (Mass.), 148 ; Bank V. Rutland, 33 Vt. 414 ; Cautling v. Railroad Co., 54 Mo. 385 ; 14 Am. Rep. 467. And an expert in science, skill, or trade, may ex- MEDICAL EXPERT TESTIMOKT. 7 press an opinion in reference thereto : Car- ter V. Boehem, 1 Smith's Lead. Cas. 286 ; Stark, on Ev. 154 ; Phil. & Am. on Ev. 899. Bat a medical expert cannot express an opinion or o'ive his views as to matters of leoal or moral obligation, as whether a practitioner of medicine has laithfnlly and honorably discharged bis dnty to his medical brethren, as this would be a mat- ter for the court or jury to determine : Ramage V. Ryan, 9 Bing. (Eng.) 333 ; Campbell v. Rich- ards, 5 B. & Ad. (Eng.) 340 ; Joyce v. Ins. Co., 45 Me. 168 ; Gibson ^. Williams, 4 Wend. 320 ; People V. Bodine, 1 Den. (N. Y.) 281 ] Cauthng V. Railroad Co., supra. In a note by Mr. Smith to Carter v. Boehem, supirt, he observes: "On the one hand it ap- pears to be admitted that the opinion of witnesses possessing peculiar skill is admissible whenever the subject-matter of inquiry is such that inex- perienced persons are unlikely to prove capable of forming a correct judgment upon it without such assistance ; in other words, when it so far partakes of the nature of a science as to require a previous habit or study in order to the attain- 8 field's medico-legal guide. ment of it ; while on the other hand it does not seem to be contended that the opinions of wit- nesses can be received when the inqniiy is into a snbject- matter, the natnre of which is not such as to require an}" peculiar habits or study in or- der to qualify a man to imderstand it : " See Hardy v. Merill, 56 N. H. 227; Com. v. Sturtevant, 117 Mass. 122; 19 Am. Rep. 401. And a witness cannot generally give his opinion as an expert upon matters of common knowledge, and not requiring special skill or experience : White V. Ballon, 8 Allen (Mass.), 408; New Eng. Glass Co. V. LovelL 7 Cush. (Mass.) 321 ; Luce V. Dorchester Ins. Co., 105 Mass. 299. Thus brakemen, baoo'^cre-masters and conductors can- not testify as experts as to the coupling of cars and its dangers : Muldowney v. 111. C. R. Co., 36 la. 462 ; Page v. Parker, 40 K H. 47. Nor is it admissible to give an opinion as an ex- pert as to the management of fire : Teal v. Bar- ton, 40 Barb. 37 ; Fraser v. Tupper, 29 Vt. 409. Or as to the necessity of a gate and signals at an open draw-bridge : Nowell v. Wright, 3 Allen, 166. MEDICAL EXPERT TESTIMONY. 9 § 4. Unsatisfactory character of expert testimony. The value of expert testimony may depend upon various circumstances, as upon the circum- stance of corroboration or not by common or other expert testimony, or upon the circumstance of contradiction or not by testimony, common or expert. And in many cases expert testimony, though it may be competent, is of little value : Best on Ev. (6th ed.), § 514 ; Taylor's Ev., § 50 ; Dickinson v, Fitchburgh, 13 Gray (Mass.) ; Winacs v. New York &"e. K. Co., 21 How. (U. S.) 101 ; Tracy Peerage Case, 10 C. & F. (Eng.) 191. See also article by Prof. Wash- burn, 1 Am. Law Rev. 45 ; Mr. Lawson's arti- cle, 25 Alb. Law Jour. 367. And this is especially the case in ex parte investigations : 1 Whart. C. S. (7th ed.), § 821 h. And in such cases expert testimony is inadmissilDle if better evidence can be obtained : State v. Hayes, 22 La. An. 39. On this subject Mr. Wharton observes: " Li all matters of material law, expert testimony, when i'uUy and fairly collected, is to be accepted as a matter of fact. . . . Nothing is more common than to examine a surgeon as to whether 10 field's medico-legal guide. death resulted from natural causes, or from cer- tain artificial ageucies which may l^e the subject of inquiry, and as to whether certain stains were from human blood. In such cases, when ex- perts testify to luidisputed demonstrations of physical science, then the court accepts such ren- dition and declares the law that therefrom springs. When the facts are disputed, then the jury is to determine where the preponderance of proof lies. But when the testimony of the ex- pert touches either jurisprudence or speculative psychology or ethics, then such testimony is to be viewed as a mere argument, which, if admis- sil)le at all, is to be treated simply as if ad- dressed to the judgment of the court: " 1 Whart. C. L., § 50. See also 1 Whart. & S. Med. Jur., §§ 280-282 ; 1 Stark. Ev. 154 ; Gardiner V. People, 6 Park. C. R. (N. Y.) 155 : State v. Knights, 43 Me. 11 ; Caleb v. State, 39 Miss. 722 ; Gaines v. Commonwealth, 50 Pa. St. 319. Of the character, quality and value of expert tes- timony as to sanity, Judge Davis, of the Supreme Court of Maine, in Neal's Case, used the follow- ing perhaps rather extravagant expressions on the subject : "If there is any kind oi' testimony MEDICAL EXI>ERT TESTIMONY. 11 that is not only of no value, but even worse than that, it is, in my judgment, that of medical ex- perts upon the question of mental unsoundness. They may be able to state the diagnosis of a case most learnedly ; but upon the question whether it had at a oiven time reached such a stao^e that the subject of it was incapable of making a con- tract, or irresponsible for his acts, the opinion of his neighbors, if men of good common sense, would be worth more than that of all the experts in the country : " 1 Redf. on Wills, ch. 3, § 13. Of the unsatisfactory character of expert testimony Judge Woodruff uses the following more temperate language in his charge to a jury : •'Where the opinion is speculative, theoretical, and states only the belief of the witness, while yet some other opinion is consistent with the facts stated, it is entitled to but little weight in the minds of the jury. Testimony of experts of this latter description, and especially where the speculative and theoretical character of the testimony is illustrated by opinions of experts on both sides of the question, is justly the subject of remark, and has been often condemned by judges as of slight value. And like observations apply, to a 12 field's medico-legal guide. greater or less degree, to the opinion of witnesses who are employed for a purpose and paid for their services : who are bou^'ht to testify as wit- nesses for their employees. ... This con- demnation is not always applicable ; often it would be unjust. Where an expert of integrity and skill states conclusions which are the neces- sary or even the usual results of the facts upon which his opinion is based, the evidence should not be lightly esteemed or hastily discredited : " Gay V. Mut. Ins. Co., 2 Bigelow's Life Ins. Cas. 14. Drs. Wharton and Stiles, in their valuable work on Medical Jurisprudence, express them- selves on this subject as follows : " Experts have been found to testify that no sane person com- mits suicide, and that all suicides are insane ; that all men are more or less insane ; that certain propensities or faculties can become insane by themselves, and when insane are irresistible : that very bad people, and especially old convicts, are, as a rule, insane ; and that certain signs, which signs the great body of the profession re- gard as indifferent, are sure marks that insanity has set in. There is in fact no psychological MEDICAL EXPERT TESTIMONY. 13 defense, no matter how whimsical, that has not been based on the specnlations of isolated ex- perts, and that has not found some isolated ex- perts to swear to on trial. That the sober, practical thought of the great body of alien- ists reject these extravagancies, cannot be ques- tioned ; but how are the views of this great body to be ascertained ? Of course it is easy for a party to summon the single expert who may happen to have propounded the bizarre theory which is necessary to sustain such party's case. But how is such expert to be contradicted ? How is it to be shown that the whole sense of the profession is against him, and that he is himself laboring imdei* one of those delusions to which, as has been seen, men of science are liable as men of other professions or modes of training ? It is impossible to sum- mon the whole profession to prove this. It is inadmissible for one to testify as to the opinions of others. There is no supreme court among experts by which conflicting views can be recon- ciled and an authoritative judgment pronounced. There is no power by wdiich the testifying ex- pert, who assumes a semi-judicial post, can be 14 field's medico-legal guide. made to accept judicial responsibilities — can be made to hear counsel to instruct him on both sides of each contested point of psychology ; can be made to feel that he is bound to testify to the views of his whole profession. Hence, when the trial conies on, the expert who is selected because he holds views which the great body of his profession rejects, tcstilies often alone, or with but slight and inadequate correc- tion. Hence it is that high medical authority has called for the abandonment of the present system of ' voluntary ' experts, and the es- tablishment of a government board, as is the case in Germany. Hence, also, after one con- spicuous instance of failure of justice from this cause — that in the case of Mr. Windom, in 1866 — the feeling was so strong of the mischief done by crowding cases with incompetent or ex- travagant experts to the exclusion of the sober and authoritative, that the Lord Chancellor pro- posed in the House of Lords, though without pressing the proposition to a vote, to exclude such testimony altogether in commissions of lu- nacy, except so far as it is based on facts within the personal knowledge of the witnesses : '^ 1 MEDICAL EXPERT TESTIMONY. 15 Whart. & S. on Mecl. Jur., §§ 290-295. See also j)osL sub. Mental Unsoimduess and its Legal Ke- ... • lations. In support of the argument of tliese dis- tinguished authors as to the unauthoritative- iiess and capricious character of medical expert testimony they refer to three remarkaJjle trials which took place in the United States in 1872, as follows : Mrs. E. G. Wharton was tried in Maryhmd for the poisoning of General Ketchum, and the experts called by the State to prove poison were flatly contradicted hy experts of at least equal authority, called by the defense, who swore that neither in symptom nor autopsy was poison shown. A few months later occurred the trial of Stokes for the murder of Fisk, in which experts, equal at least in respect to num- ber, contradicted each other directly on the question whether Fisk was killed by Stokes or by the surgeons who endeavored to extract Stokes' balls. And in September, 1872, as if to exhibit this capriciousness in the strongest relief, followed in Pennsylvania the second trial of Dr. Schceppe. He was convicted, on a former trial, on the testimou}^ of a single expert, of murder by poison ; and it was not till after a delay of 16 field's medico-legal guide. more than two years, and then only by legisla- tive action, that a new trial was obtained. Then was it discovered that there was nothing in the prosecution's case. The expert on which it re- lied, though respectable and conscientious, had been guided by tests which recent science had shown to be worthless. The court ordered the acquittal on the ground that there was not even 2i prima facie c'd^Q oi the corpits delicti. But a cruel wrong had been done to the accused by the first trial, as well as a great scandal to pub- lic justice. Where the question is whether there is un- soundness of mind of a person sufficient to avoid a contract or will made by him, it has been held improper to inquire of a medical expert whether he had sufficient mental capacity to transact busi- ness or to make a w411, as that is a matter of law : Fairchild v. Bascom, 35 Vt. 398. The proper mode of proceeding in such a case would seem to be to take the facts proved by the expert witness or others relating to the subject, or admitted, and assuming them to be true, inquire of the witness if in his judgment they were indicative of in- anity or unsoundness of mind : See Woodbury MEDICAL EXPERT TESTIMONY. 17 V. Obear, 7 Gniy (Mass.), 476 ; People v. McCaiin,' 3 Park. C. E. (N. Y.) 272 : R. v. Higginsoii, 1 Car. & K. (Eng.) 129 ; II. v. Francis, T Cox C. C. (Eng.) 57 ; R. v. Richards, 1 F. & F. (Eng.) 87. § 5. Opinions of medical experts as to sanity on hypo- thetical cases. It is admissible for an expert or professional witness to give an opinion of a party's sanity, on a hypothetical case, whether it be for the purpose of determining the competenc}'^ of the party to contract or to make a will, or his liability for crime. And he may be interrogated as to his opinion of certain designated facts presented in a case, snpposing them to be true : United States V. McGkie, 1 Curtis (U. S. C. C), 1 ; Fairchild V. Bascomb, 35 Vt. 398 ; Negro Jerry v. Town- shend, 9 Md. 145 ; State v. Windsor, 5 Har. (Del.) 512 ; Davis v. State, 35 Ind. 496 ; State V. Kilingler, 46 Mo. 224 ; McAlister ?;. State, 17 Ala. 434 ; Wetherbee v. Wetherbee, 38 Vt. 454. But counsel are limited in propounding ques- tions to the case as presented by the evidence : State V. Stokeley, 16 Minn. 282. Hence, while medical experts may give their opinions in cases where the facts are not disputed, such experts 18 field's medico-legal guide. are coiifiiied, where there is a conflict of testi- mony, to answers to a hypothetical case : 1 Whart. C. L. (7th ed.), § 50 d ; Wilkinson v. Mosely, 30 Ala. 562 ; Commonwealths. Rogers, 7 Met (Mass.) 500. In the case last cited will be found, in the able opinion of Chief Justice Shaw, a clear and suc- cinct statement and exposition of the hiw on this subject, as follows : "The opinions of pro- fessional men on a question of this description are competent evidence, and in many cases are entitled to great weight and respect. The rule of law on which this proof of the opinion of of w^itnesses ^\ho knew nothing of the actual facts of the case is founded, is not peculiar to medical testimony, but is, as a general rule, ap]:)licable to all cases where the question is one depending on skill and science in any particular department. In general it is the opinion of the jury which is to govern, and this is to be formed upon the proof of facts laid before them. But some questions lie beyond the scope of the ob- servation and experience of men in general, but are quite within the observation and experience of those whose peculiar pursuits and profession MEDICAL EXPERT TESTIMONY. 19 have brought that class of facts frequently and habitually under their consideration. Ship- masters and seamen have peculiar means of ac- quiring knowledge and experience in whatever relates to seamanship and nautical skill. When, therefore, a question arises in a court of justice upon the subject, and certain facts are proved by other witnesses, a shipmaster may be asked his opinion as to the character of such facts. The same is true in regard to any question of science, because persons conversant with such science have peculiar means, from a larger and more exact observation, and long experience in such department of science, of drawing correct infer- ences from certain facts, either observed by themselves or testified to by other witnesses. A familiar instance of the application of this principle occurs very often in cases of homi- cide, when, upon certain facts being testified to by other witnesses, medical persons are asked whether, in their opinion, a particular wound pescribed would be an adequate cause, or whether such a wound was, in their opinion, the actual cause of death in the particular case. Such question is commonly asked without objection ; 20 field's medico-legal guide. and the judicial proof of the fact of killing often depends wholly or mainly upon such testing of opinion. It is upon this ground that the opinion of witnesses who have long been conversant with insanity in its various forms, and who have had the care juid superintendence of insane persons, are received as competent evidence, even though they have not had opportunity to examine the particular patient, and observe the symptoms and indications of disease at the time of its sup- posed existence. It is designed to aid the judg- ment of the jury in regard to the influence and effect of certain facts which lie out of the obser- vation and experience of persons in general. And such opinions, when they come from persons of great experience, and in whose correctness and sobriety of judgment just confidence can be had, are of great weight, and deserve the respect- ful consideration of a jury. But the opinion of a medical man of small experience, or one who has crude and visionary notions, or who has some favorite theory to support, is entitled to very little consideration. The value of such testi- mony will depend mainly upon the experience, fidelity, and impartiality of the witness who gives MEDICAL EXPERT TESTIMONY. 21 it. One caution in regai'd to this point it is proper to give. Even where the medical or other professional witnesses have attended the whole trial, and heard the testimony of the other witnesses as to the facts and circumstances of the case, they arc not to judge of the credit of the Avitnesses, or of the truth of the facts testified to by others. It is for the jury to decide whether such facts are satisfactorily proved. And the proper question to put to the professional wit- nesses 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 [the witnesses'] opinion the party was insane, and what was tlie nature and char- acter of that insanity ; what state of mind did they indicate ; and what the}^ would expect W(fuld be the conduct of such a person in any supposed circumstances." In treating the question of evidence relating to the sanity of a testator, Mr. Abbott, in his valuable treatise on Trial Evidence, has furnished a very concise statement of the law relating to opinions as to mental soundness or unsoundness in relation to capacity to make a will ; and the 22 field's medico-legal guide. general principle would be the same, whatever the object of the inquiry may be. He says : "An expert may testify directly as to mental capacit}'^ in either of three ways : "1. If he had adequate opportunities of per- sonal examination of the testator, he may state his opinion ])ositively, based upon his personal knowledge of the facts, but not upon hearsay nor upon conflicting testimony in the cause. " 2. An expert who has heard all the testimony adduced upon the trial bearing on the question, ma}^, if it is not conflicting, give his opinion on the question, what the facts sworn to, if true, would indicate as to the mental condition. " 3. An expert maybe asked what a supposed state of facts, put to him h^'pothetically, but corresponding in details to the facts already in evidence, would indicate as to mental condition. When the evidence involves conflict, the opinion, if not based wholly on personal examination, should be drawn out by an h^'pothetical ques- tion, havino' reference to the facts in evidence on one side or both, or on each side separately. The expert is not to be substituted for the jury; but so long as the question is framed according MEDICAL EXPETIT TESTIMONY. 23 to the principles here stiitecl, it can be no objec- tion to it that the issue and the other evidence is such that the question to l)e submitted to the jury must call for the same answer. An expert may also, within limits not very well defined, be asked ^general questions upon the laws of mental disorder, decay or imperfect development rele- vant to the case, or upon the consistency with each other of alleged symptoms, for the pur- pose of enhancing the qualifications of the coiu't or jury to weigh and apply the evidence ; and on cross-examination, he may be interjt'ogated generally for the purpose of testing his qualifi- cations : " Abbott's Tr. Ev. 116, 117. See also, in suppoi't of some of the above propositions, Wood- bury v. Obear, 7 Gray (Mass.), 467; People v. Schanchez, 22 N. Y. 174 ; People v. Lake, 12 N. Y. 358 ; Com. v. Sogers, 7 Met. (Mass.) 500 ; Dexter v. Hall, 15 Wall. (U. S.) 26. It may be observed that an educated practic- ing physician, who has attended the party whose mental soundness is the subject of investigation, is a competent expert, though not especially con- versant with insanity ; and in a case of gradual decay (senile dementia) his opinion may be more 24 field's medico-legal guide. valuable than that of a specialist who is a stran- ger to the party : Baxter v. Abbott, 7 Gray (Mass.), 71. And it is not essential to a medical man of education and experience in his profession that he has received a diploma in order to make him competent as an expert. § 6. Where the opinion rests upon personal examination facts should be stated. As a general rule it would be better for the medical expert to furnish the facts on which his opinion is founded, Aviiere it rests upon examina- tion of the testator or personal acquaintance, and although he may in many cases have to depend to some extent upon the statements of the patient as to his symptoms and feelings in diagnosing his case, which may become a part of the ves geMce^ his opinion cannot properly rest upon infcjrmation given him by an attendant of the patient, for such communications would be merely hearsay and incompetent evidence : Heald v. Thing, 45 Me. 396 ; Wetherbee v. Wetherbee, 38 Vt. 454. § 7. Governmental experts recommended. Drs. Wharton and Stiles, in their valuable work on Medical Jurisprudence, refer to the MEDICAL EXPERT TESTIMONY. 25 German system of goverimiental experts, and suggest that such a sj^stem, with some modifica- tions, could ])Q adopted in this country. We conclude this branch of our subject by copying these suggestions and the arguments in support of governmental experts : "We are all familiar with army physicians and army surgeons, and of su])ordination in rank in these officers. There would be no difficulty in providing in each county for a county physician, who, by the tests of an adequate competitive examina- tion, would prove his general and special com- petency for this particular post. In addition to the duties devolved upon him of conducting post-mortem examinations, and of pursuing any other investigations^ that may be require*d in a litigated issue, such a physician might be made the arbiter in those mooi: questions by which the law has been kept in a state of such distressing incertitude : Is there such a disease as moral insanity, or as mania transitoria f Can human blood stains be distinguished after having become dried ? [We here interpose another question : Can human Ijlood be distinguished from the blood of some of the inferior animals by micro- 26 field's medico-legal guide. scopic or other inspection, or by tests of any kind ?J If a question of this kind arises on the trial of a cause, it would not be inconsistent with the analosfies of the law to refer it to an official expert, just in the way that a chancellor sends a question of fact to be determined by a master in chancery or by a common-law court and jury. But if this be done, it should be done with the checks which attend the chancery system, which has just been noticed. The official physician who acts as referee must be placed under ju- dicial restraints. He should owe his appoint- ment to neither party, but to the state, irrespect- ive of any particular case. His duty it should be to take testimony, if needed on the case, and hear counsel, so that he will be in no danger of hazardinof one of those rash and ififnorant opinions which have so much disgraced this branch of medical practice. After thus judically hearing of the case, it should be his further duty to judicially certify his opinion to the court by whom the reference is made. In proper cases there might be allowed an appeal from such opinions to a supreme court of governmental experts appointed by the state at large. It may MEDICAL EXPERT TESTIMONY. 27 be said that this may be productive of occasional delay. This is true ; but the difficulties thus arisino: would not he so c^reat as those which almost every contested medical issue now in- volves, and which, in cases of insanity, have led courts so often to grant new trials from sheer despair of drawing a decisive conclusion from the jargon thus introduced. Soon, also, the de- lays of appeals would be reduced, for certain great cardinal questions would be settled beyond dispute. We should soon know whether there is such a thing as moral insanity, [The author would add — if it is among the knowal)le things] and whether it is practicable to distinguish human blood after the expiration of a week from the pe- riod of its drying. [The author would add, — and whether it is possible to distinguish human blood from the blood of some inferior animals by micro- scopic examination or other tests.] Settle a few such points as these, and we relieve criminal justice of a large part of the uncertainties by which it is now ])eset, and we will have a series ol' rules l)y which cases can be intelligently, con- sistently and humanely conducted. Nor will this be all. We will be able to get the judicial utter- 28 field's medico-legal guide. ances of science as to vexed issues of fact, instead of the interested arguments of experts who are virtually employed as counsel by the party call- ing them, or the wild utterances of philosophic monomaniacs who are called simply because of their absorption of some unique theory of their special conception. Such men need not be silenced. Experts as counsel, indeed, will lind a proper and important office in presenting the two sides of the issue to the expert who acts as referee. But the expert who fills this last judi- cial post will be disembarrassed of all persomd relations. He will have no client to serve, and no past partisan extravagances to vindicate. He will render his opinion as an advocate neither of another nor of himself. When he speaks he will do so judicially, as the representative of\he sense of the special branch of science wdiich the case invokes, governed by the opinion of the great body of scientists in this relation, and advised b}' the most recent investigation. When this is done, we will have expert evidence res- cued from the disrepute into which it has now fallen, and invested with its true rio'hts as the expression of the particular branch of science for MEDICAL EXPERT TESTIMONY. 29 which it speaks : " 1 Whart. & S. Med., § 1250. The author of this manual endorses the recom- mendations of these learned authors, and duly appreciates their arguments ; and he cannot re- sist copying the remarks of Dr. Wharton in the concluding paragraph of the first volume of the seventh edition of his valuable treatise on Crim- inal Law, where he refers to this subject, and his former treatment of it, as follows: "Nor will this be the sole benefit that will result. Not only w^ill the dignity of physical and psychological science be vindicated, l)ut the science of juris- prudence, of all others the secular arbiter, will be able to discharge its great ofiice with the pre- cision, the wisdom and the system which are necessary to the welfare of the community, but which are unattainable when so important a sub- sidiary agency as expert testimony remains in the chaos in which it is now plunged : " 1 Whart. C. L., § 827. § 8. Opinions of non-expert witnesses. The line between expert and non-expert wit-, iiesses, and their competency to give opinions 30 field's medico -legal guide. as evidence, is not always clearly distinguish- able. In respect to insanity it may be affirmed as a general rule that non-experts cannot give their opinions. But this cannot be affirmed as a miiversal rnle : See post^ § 9. In respect to other matters one who is not strictly an expert may sometimes give an opinion, as where it relates to the value of property, the rapidity of locomotion, and the like : See ante, § 3 ; State ^.Knight, 43 Me. 11; Fairchild ^;. Bas- comb, 35 Vt. 398 ; Bierce v. Stoking, 11 Gray (Mass.), 174 ; State v. Eeddick, 7 Kan. 106 ; Hardy v. Merrill, bQ N. H. 227 ; 22 Am. Kep. 441 ; 2Dost, § 9. § 9, Distinction between e3j;pert and common witnesses. On this subject Mr. Wharton observes : "A wdtness who had opportunities of observing a defendant whose insanity is under investigation, may, after stating facts within such observation, be, as a general rule, asked whether, from the defendant's general appearance and conversation, he was at the time of the observation of sound mind. But a non-professional witness will not MEDICAL EXPERT TESTIMONY. 31 be permitted to give mere opinions, discon- nected from the facts on which such opinions are based : '' 1 Whart. C. L. (7th ed.), § 45. See also Hardy v. Merrill, supra; Com. v. Sturtevant, 117 Mass. 122 ; 19 Am. Rep. 401. As a general rule, non-experts are confined to a mere- statement of facts : Com. v. Wilson, 1 Gray (Mass.), 337 ; Caleb v. State, 39 Miss. 722 ; Gehrke v. State, 13 Tex. 568 ; Clapp v. FuUerton, 34 N. Y. 190 ; Real v. People, 42 N. Y. 270. And they cannot give an opinion upon a hypothetical statement of facts : State v. Klinger, 46 Mo. 228 ; Farrell v, Brendan, 32 Mo. 328 ; Boardman v. Woodman, 47 N. H. 120 ; Dunham's Appeal, 27 Cow. 192 ; Weems V. Weems, 19 Md. 334 ; Eckert v. Flowry, 43 Pa. St. 49. Medical men who are possessed of medical skill are allowed to testify as experts and to give opinions as to the sanity or insanity of a person, either from personal examination of him or based npon a hypothetical case. So those who are not medical men are permitted to tes- tify and give their opinion under certain circum- stances. But the manner of conducting the 32 field's medico-legal guide. examination, and the facts from wlience the wit- nesses draw their inferences or conclusions, are essentially difterent. The medical expei't gives to the jiny the result of his professional skill, science and learning. His opinions aie brought to their assistance, but they are not conclusive upon the jury, and they may give them such weight as they deem they are entitled to, and no more. If the expert has been present in court, and has heard all the evidence, and there is no dispute about the facts, he may then be asked his opinion about the whole matter. But jvhen the facts are disputed this course is inadmissible, and the question should be stated hypothetical ly : State v. Klinger, 46 Mo. 228. If a person is indicted for a crime, and a defense of insanity is set up, and evidence is intro- duced in support of such defense, a medical ex- pert witness who has heard all the evidence may be asked the following question: "You have heard all the evidence in the case ; suppos- ing the jury to be satisfied that the facts and circumstances testified to by other witnesses are true, what is your opinion, as a medical man, MEDICAL EXPERT TESTIMONY. 33 of the state of the prisoner's mind at the time of the commission of the alleo^ed crime ? " If the witness should state that the evidence indicated unsoundness of mind, the following question would be proper : " Was the prisoner, in your opinion, at the time of the doing of the act, under any, and what kind of, insanity or delu- sion ; and what would you expect would be the conduct of a person under such circumstances ? " State V. Windsor, 5 Harr. (Del.) 512 ; Com. v. Rogers, 7 Met. (Mass.) 500. Witnesses who are not experts may be permit- ted to state whether they regarded the defendant on trial charged with a crime to be insane at the time of the commission of the alleged criminal act. But this can only be done in connection with their statements of particular conduct, appearance and expressions of the defendant, upon which their opinion is based. They may give their opinion, accompanied* by the facts existing within their own knowledge and obser- vation, but they cannot be permitted to give an opinion upon the question whether a hypothetical set of facts would or would not, if true, be evi. deuce of insanity ; nor from mere evidence which 34 field's medico-legal guide. they have heard others detail : State v. Kliiiger, su;prcL See also Farrell v. Bremian, 32 Mo. 328; Boardman v. Woodman, 47 N. H. 120 ; Dun- ham's Appeal, 27 Conn. 192. CHAPTER III. INSANITY AND ITS LEGAL RELATIONS. § 10. Varieties of unsoundness of mind. That branch of forensic medichie, or medical jurisprudence, which relates to unsoundness of mind in its legal relations, is so important to the medical and legal professions, and in respect to both civil and criminal liabilitj^, that the author feels justified in presenting a condensed treat- ment of the subject in this chapter. Unsoundness of mind, or insanity, has been distinguished into four varieties, or varying de- grees, namely : idiocy, dementia, mania and monomania ; but a more concise and perhaps accurate classification would be : amentia, de- mentia and mania : Guy & F. on Forensic. Med. (5th ed.) 172, 173. In the mental conditions indicated by these terms the person is not gen- erally competent to make contracts, nor to dis- pose of his property by gift or will, or crimi- nally responsible for his acts : See Ray's Med. 36 field's medico-legal guide. Jur. 58 ; Freeman v. People, 4 Denio, 10 ; 47 Am. Dec. 216 ; 6 Field's Lawyers' BrMs, § 409. § 11. Insanity defined and described. In medical jurisprudence insanity lias been defined as the prolonged departure, without any adequate cause, from the states of feeling and modes of thinking usual to the individual in health. " Of late years," observes Dr. Gooch, " this Avord has been used to designate all mental impairments and deficiencies formerly embraced in the terms lunacy, idiocy and unsoundness of mind. Even to the middle of the last century the law recognized only two classes of persons requiring its protection on the score of mental disorder, viz. : lunatics and idiots. The former were supposed to embrace all who had lost the reason which they once possessed, and their disorder was called dementia accidentalis ; the latter those who had never possessed any reason, and this was called dementia naturalis. Lunatics were supposed to be much influenced by the moon ; and another prevalent notion respecting them was that in a very large propor- tion there occurred lucid intervals, when reason INSANITY AND ITS LEGAL RELATIONS. 37 shone out for a while from the cloud that obscured it, with its natural brightness. It may be remarked, in passing, that lucid intervals are far less common than they were once supposed to be, and that the restoraticm is not so complete as the descriptions of the older writers would lead us to infer. In modern practice, the term •lucid interval' signifies merely a remission of the disease, an abatement of the violence of the morbid action, a period of comparative calm ; and the proof of its recurrence is generally drawn from the character of the act in question. It is hardly necessary to say that this is an unjustifi- able use of the term, which should be confined to the oenuine lucid interval which does occa- sionally occur. " It began to be found out at last that a large class of persons required the protection of the law who were not idiots, because they had reason once, nor lunatics in the ordinary signification of the term, because they were not violent, exhibited no very notable derangement of reason, were independent of lunar influences, and had no lucid intervals. Tiieir mental impairment consisted in a loss of intellectual power, of interest in their 38 field's medico-legal guide. usual pursuits, of the ability to comprehend their vehitions to persons and things. A new term — unsoundness of mind — was therefore in- troduced to meet the emergency ; but it has been never clearly defined. " The law Ivas never held that all lunatics and idiots are absolved from all responsibility for their civil or criminal acts. This consequence was attributed only to the severest grades of these affections, — to lunatics who have no more understandino^ than the brute, and to idiots who cannot '' number twenty pence nor tell how old they are." Theoretically the law has changed but little even to the present day, but practically it exhibits considerable improvement ; that is, while the general doctrine remains unchanged, it is qualified, in one way and another, by the courts, so as to produce less practical injustice. " Insanity implies the presence of disease or con- genital defect in the brain, and although it may be accompanied by disease in other organs, the cerebral aflection is always sujDposed to be pri- mary and ]3redominant. It is to be borne in mind, however, that bodily diseases may be ac- companied, in some stage of their progress, by INSANITY AND ITS LEGAL KELATIONS. 39 mental disorder, which may affect the legal rela- tions of the patient. " To give a definition of insanity not congenital, or, in other words, to indicate its essential ele- ment, the present state of our knowledge does not permit. Most of the attempts to define in- sanity are sententious descriptions of the disease rather than proper definitions. For all practical purposes, however, a definition is unnecessary, because the real question at issue always is, not what constitutes insanity in general, but wherein consists the insanity of this or that individual. Neither sanity nor insanity can be regarded as an entirety to be handled and described, but rather as a condition to be considered in reference to other conditions. Men vary in the character of their mental manifestations insomuch that con- /luct and conversations perfectly proper aud natural in one might in another, differently con- stituted, be indicative of insanity. In deter- mining, therefore, the mental condition of a person, he must not be judged by any arbitrary standard of sanity or insanity, nor compared with other persons unquestionably sane or insane. He can properly be compared only with himself. 40 field's medico-legal guide. li When a person, without any adequate cause, adopts notions he once regarded as absurd, or indulges in conduct opposed to all his former habits and principles, or changes completely his ordinary temper, manners and dispositions, — the man of practical sense indulging in speculative theories and projects ; the miser becoming a spendthrift and the spendthrift a miser ; the staid, quiet, unobtrusive citizen becoming noisy, restless and boisterous ; the gay and joyous becoming dull and disconsolate even to the verge of despair ; the careful, cautious man of business plunging into hazardous schemes of speculation ; the discreet and pious becoming shamefully reckless and profligate, — no stronger proof of insanity can be had. And yej; not one of these traits, in and by itself alone, disconnected from the natural traits of character, could be regarded as conclusive proof of insanity. In accordance with this fact the principle has been laid down, with the sanction of the highest legal and medi- cal authority, that it is the prolonged departure, without any adequate cause, from states of feel- ing and modes of thinking usual to the individ- ual when in health, which is the essential feature INSANITY AND ITS LEGAL RELATIONS. 41 of insanity : " 43 Lond. Qiuut. Rev. 355. See Comb on Ment. Dening. 196 ; Medway v. Croft, 3 Curt. Eccl. R. (Eng.) 671. § 12. Amentia ; what it embraces. Amentia embraces the forms of unsoundness of mind known as idiocy, imbecility and cre- tinism. Idiocy is a form of unsoundness of mind, resulting either from congenital defect, or some obstacle to the development of the faculties of mind in infancy. But idiocy has its degrees, like other forms of imsoundness of mind. Usually a total idiot is a person who has been without understanding from his nativity, and wdiom the law, therefore, presumes never likely to attain any : 6 Field's Lawyers' Briefs, § 410 ; Shelf, on Lunacy, 2. § 13. Imbecility defined ; a mental deficiency. Imbecility, in medical jurisprudence, has been defined as a form of mental deficiency, either con- genital or resulting from an obstacle to the development of the faculties supervening in- fancy ; and it is substantially the same as Idiocy : Id. 42 field's medico-legal guide. § 14. Cretinism. Cretinism is a form of idiocy which exists in some parts of Europe, and which prevails endem- ically, and is associated with disease or defect- ive development of other organs besides the head. Of this it lias been observed : " The stat- ure is dwarfed, the belly large, the legs small, the head conical, the arch of the palate high and narrow, the teeth irregular, the mouth large, the lips thick, the complexion sallow, the voice harsh and shrill, the speech thick and indistinct, the eyes squinting, the gait feeble and unsteady, the sexual powers weak or wanting. The best au- thorities represent this physical degeneracy, with co-existing mental deficiency, as dating, with rare exceptions, from a period subsequent to birth. About the fifth or sixth month, the bodily devel- opment seems checked. The child is weak, and looks unhealthy, the head is large, and its bones widely separated, the belly swells and the limbs shrink, teething goes on very slowly, and the child cannot stand or speak till its fifth or sixth year : " Id. In its w^orst phases the subject has no intelli- gence ; the senses are wholly w^anting. INSANITY AND ITS LEGAL KELATIONS. 43 § 15. Idiocy. Idiocy is a congenital or serious defect of all the mental faculties, although admittin2f of de- grees : Guy & Fer. on Forensic Med. (5th ed.) 183. And idiots are incapable of committing crimes or of making contracts or wills : Bacon's Arb. Idiot, A ; 4 Bl. Com. 24, 304 ; Arch. Cr. L. 4 ; Shelf, on Lunacy, 458 ; Criminal Law, vol. 2, Field's Lawyers' Briefs, § 270 tt seq. ; Contracts, vol. 2, Field's Lawyers' Briefs, § 80 ; Coll. on Lunacy, 573 ; Rex v, Oxford, 9 C. & P. (Eng.) 525 ; Rex v. Goode, 7 Ad. & El. (Eng.) 836 ; Com. v. Rogers, 7 Met. (Mass.) 500 ; State V. Spencer, 21 N. J. L. 196 ; McAlister v. State, 17 Ala. 434 ; Guy & Fer. on Forensic Med. (5th ed.) 185. § 16. Imbecility. The term imbecility is sometimes used to des- ignate a mental defect manifesting itself in in- fancy, as distinguished from that which is con- genital. Of this unsoundness of mind it has been said : " Idiocy and imbecility ought perhaps to be equally characterized as congenital defects, of which the more marked (idiocy) reveals itself soonest, while imbecility is not recognized till 44 field's medico-legal guide. the faculties have been tested by education and found wanting. It is obvious, too, that no sharp lines of distinction can be drawn between the idiot and the imbecile, for the fainter shades of im- becility pass into the lighter tints of idiocy. But the possession by the imbecile of the faculty of speech, as distinguished from the parrot-like utterances of a few words which the idiot can learn, is the best line of demarkation which the case allows of. Most imbeciles are intellectually as well as morally deficient. They have a lim- ited power of acquiring or retaining knowledge, cannot understand or appreciate the customs of society or laws, human or divine ; cannot con- trol their emotions and passions. But there is a small exceptional class which exhibits intellectual deficiency without seriously offending against morality, and a larger one combines the highest intellectual endowments with utter incapacity in the conduct of life. There is, therefore, an in- tellectual, a moral and a general mania. . . . The form of imbecility most common, and most important in a medico-legal point of view, is that which afi*ects the intellect, the moi'als, and the prudential conduct of life. Persons who ex- INSANITY AND ITS LEGAL RELATIONS. 45 Mbit this threefold deficiency profit by education, so as to form and express simple ideas, to read, write, count, and to become musicians, draughts- men or mechanics. They may even attain some proficiency in some one branch of knowledge, or some one accomplishment ; but they clo not profit by the opportunities afforded them in the same degree as their neighbors. They also present great varieties of character. Some are fickle and changeable and incapable of fixing their atten- tion, and others methodical and persevering. They have no idea, or a very imperfect one, of society, laws, morality, courts and trials ; and though they may have the idea of property, they have no conception of the consequences of theft. They may have been taught to refrain from injuring others, but they are ignorant of what would be done to them if guilty of incen- diarism or murder^ " Georget's Sur la Folie ; Guy & Fer. on Forensic Med. 188. § 17. Question of civil and criminal liability of imbe- ciles considered. Questions as to the competency of imbeciles to contract, of ability to manage their own aff^iirs, and to make wills, and as to their criminal 46 field's medico-legal guide. liability, frequently arise. Whether they are competent to make a contract or a will must depend upon the degree of mental ability and understanding which they possess. And the same may be said of their criminal responsi- bility. For any process of I'easoning, or any general observation or abstract ideas, total imbeciles are incompetent ; bat the affective faculties are frequently unusually active, particularly those which lead to evil habits, as thievino- incendi- arism, drunkenness, homicide and assaults upon women. These defects and inclinations vary in degree in different imbeciles, some being hardly distinguishable at first sight from ordinary men of feeble endowments, while others encroach upon the line which separates them from idiocy : 6 Field's Lawyers' Briefs, § 414. § 18. Imbecility as an excuse in criminal cases. In criminal cases the responsibility of imbe- ciles depends upon their ability to distinguish betAveen rio;ht and wrono^ in connection with the act in question, or in case of homicide, upon the understanding that they were '^committing INSANITY AND ITS LEGAL EELATIONS. 47 an offense aoffiinst God and nature/' or whether they are deprived of imderritauding and memory : See Criminal Law, vol. 2, Field's Lawyers' Briefs, § 271 ; Com. v. Rogers, 7 Met. (Mass.) 500 ; 41 Am. Dec. 458. § 19. Moral imbeciles. In respect to moral imbeciles it has been ob- served that they are unable to appreciate fully the distinction between right and wrong, and according to their several opportunities and tastes they indulge in mischief as if by an in- stinct of their nature. To vice and crime they have an irresistible proclivity, though able to discourse on the beauties of virtue and the claims of moral obliofation. When yonns^, mauv of them manifest a cruel and quarrelsome dispo- sition, which leads them to torture brutes and bully their companions. They set all law and admonition at defiance, and become a pest and a terror to the neighborhood. It is worthy of notice, because the fact throws much light on the nature of this condition, that a very large proportion of this class of persons labor under some organic defect. They are scrofulous, rick- 48 field's medico-legal guide. ety or epileptic, or if not obviously suffering from these diseases themselves, they are born of parents who did. Their progenitors may have been insane, or eccentric, or highly nervous ; and this morbid pecuUarity has become, unques- tionably, the efficient cause of the moral defect under consideration. Thus lamentably consti- tuted, wanting in one of" the essential elements of moral responsibility, the}^ are certainly not fit objects of punishment ; for, though they may recoo^nize the distinction between risfht and wrong in the abstract, yet they have been de- nied by nature those faculties which prompt men more happily endowed to pursue the one and avoid the other : Ray's Med. Jur. 112-130. Such humane and philosophical views have not, however, received much favor from the courts or authors, as we have already noticed. In his legal relations and responsibilities the total imbecile is like the idiot, unable to bind himself by contract, or make a will, and is not criminally responsible for his acts. But as there are varying degrees of imbecility, the compe- tency and responsibility of the imbecile may become the subject of legal inquiry, and his INSANITY AND ITS LEGAL EELATIONS. 49 responsibility will depend upon his knowledge and mental abilit}- to understand the nature of the obligation, or to comprehend the character of the civil or criminal act. In this respect the liability would be the same as in case of partial insanity and dementia, which we have noticed and shall hereafter more fully consider. The author would say that from his knowledge of certain cases of moral imbecility in youths, the asylum would perhaps generally be the appro- priate place for them. § 20. Dementia distinguished from amentia. Dementia is that unsoundness of mind which is characterized by mental weakness and decrep- itude, and by total inability to reason correctly or incorrectly. It has been distinguished from amentia as follows : •' In idiocy the deficiency is congenital, .in imbecility it shows itself in early life, but in dementia it supervenes slowly or sud- denly in the mind already fully developed, and in childhood, manhood or old age. It differs also from mania, for it consists in exhaustion and tor- por of the faculties, not in violent and sustained excitement. In dementia we recognize an acute 50 field's medico-legal guide. or jprimary, and a chronic or secondary form. The first is rare, and consists in a state of melan- choly or stupor ; the second is very common, and characterized by incoherence, differing from the incoherence of mania by the absence of ex- citement. Some demented persons, however, are liable to maniacal paroxysms, and maniacs to remissions of comparatively tranquil incoher- ence. There is a senile dementia, and a form of dementia associated with general paralysis. Dementia also has its deo^rees and stao^es of for- getfuluess, irrationality, incomprehension, and inappetency. A patient suffering from dementia, as he passes from bad to worse, first exhibits want of memory, then loss of reasoning power, then inability to comprehend, and lastly, an abolition of the common instincts and of volition : " Guy & F. on For. Med. (5th ed.) 194 ; 6 Field's L. B.,§417. In the progress of this mental disorder, the mind usually dwells only on the past, and the thoughts succeed one another without any obvi- ous bond of association. Delusions, if they exist, are only transitory, and leave no permanent impression ; and for everything recent the mind INSANITY AND ITS LEGAL RELATIONS. 51 is exceedingly weak. Occasionally it occurs in an acute form in young suljjects, and then only is it curable. In old men, in whom it often occurs, it is called senile dementia^ and it indi- cates the breaking down of the mental powers in advance of the bodily decay. It is this form of dementia which usually gives rise to litiga- tion; for in others the incompetency is generally too patent to admit of controversy. It cannot be described by any positive characters, because it differs in the different stages of progress, vary- ing from the simple lapse of memory to complete inability to recognize persons or things. It sometimes manifests itself in breaches of decorum, when the mental infirmity is not so serious as might at first sight be supposed, as frequently in such cases, if the attention be aroused to a matter in which the person is deeply interested, he will show no lack of wonted vigor or acute- ness. In other words, the mind may be damaged superficially, to use a figure, when it may be sound at the core ; so that, although he may be quite oblivious of names and dates, he may com- prehend perfectly well his relations to others and and the interests in which he is concerned. In 52 field's medico-legal guide. case of senile dementia, the impression made upon the minds of those who have been long and most intimately acquainted with the subject, as to his mental condition and status, would be better than the impression made upon casual observation : Id. ; see also Judge Redfield in 3 Am. L. Reg. (K S.) 449 ; 2 Phil. Eccl. L. 449 ; Harrison v. Rowan, 3 Wash. (C. C.) 580 ; 1 Red. on Wills. § 21. liegal relations of dementia — in case of wills. Questions frequently raised respecting persons suffering from this form of mental unsoundness, relate to the validity of wdlls made or altered by them ; and especially in case of senile de- mentia. The question of mental capacity for such purposes is frequently a difficult one to determine, for such persons vary greatly from day to day, and present themselves in different lifi^hts to different observers. Hence we have conflicting testimony and wide divergences of opinion, both among skilled and unskilled wit- nesses. The only general rule of much practi- cal value in such cases is, that competency must be always measured, not by any fancied stand- INSANITY AND ITS LEGAL RELATIONS. 53 ard of intellect, but solely by the requirements of the act in question : See Eay on Insanity (5th eel.), 133 ; Taylor's Mecl. Jur. 629 ; Gilm. Mecl. Jur. 20; also Wills, vol. 5, Field's L. B., § 729. A small and familiar matter would require less mental power than one complicated in its details and somewhat new to the testator's experience. Less capacity would be necessary to distribute an estate between a wife and child than between a multitude of relatives with unequal claims upon the bounty of the testator. - It has been obseiwed that the legal principles by which courts are governed are not essen- tially difierent, whether the mental incapacity proceed from dementia or mania. In case the question of competency arises upon the con- test of a will, if the will coincides with the pre- viously expressed wishes of the testator, — that is, his wishes as expressed before any question as to his competence had arisen, — and if it recognizes the claims of those who stood in near relation ta him, and shows no indication of undue influence, — in short, if it is a rational act, rationally done, it will very properly l)e established, although there may have existed considerable impairment of 54 field's medico-legal guide. mind : Id. ; Jarm. on Wills (5tli Am. ed.), 94 ; Swinb. on Wills, pt. 2, § 5 ; Bird v. Bird, 2 Hagg. Eccl. (Eng.) 142 ; Creely v, Ostvander, 3 Bradf. (N. Y.) 107 ; Crolires v. Stark, 64 Barb. (N. Y.) 112 ; Clark v. Fisher, 1 Paige (N. Y.), 171 ; Van Alstyne v. Hunter, 5 Johns. Ch. (N. Y.) 148 ■ Daniel v. Daniel, 39 Pa. St. 191 ; Higgins v. Higgins, 28 Md. 115 ; Potts ^;. House, 6 Ga. 240 ; 50 Am. Dec. 329 ; Yoe v. McCord, 74 III. 33 ; Carpenter v. Calvert, 83 III. 62; Lowder v. Lowder, 38 Ind. 638; Thomas v. Slump, 62 Mo. 275 ; Rutherford v. Morris, 77 111. 397 ; Thomas v. Kyner, 65 Pa. St. 368 ; Terry v. Biiffington, 11 Ga. 337 ; 56 Am. Dec. 432 ; Couch v. Couch, 7 Ala. 519 ; 42 Am. Dec. 602 ; Rigg v. Wilton, 13 III. 15 ; 54 Am. Dec. 419 ; 5 Field's Lawyers' Briefs, §§ 727-730. We shall hereafter notice the principles of the law, in criminal cases, relating to unsoundness of mind generally. § 22. Mania defined. One of the most common forms of insanity or mental unsoundness is mania, and consists of in- INSANITY AND ITS LEGAL RELATIONS. 55 tellectual aberration, or morbid obliquity, or both of these conditions : Bouv. L. D., Mania. The term includes all forms of mental unsound- ness that are characterized by undue excitement. Mania has been classified into three kinds, namely : General, intellectual, and moral : the latter has also been divided into general and par- tial mania : Guy & Fer. on For. Med. (5th ed.) 197. The term also embraces monomania ; that is, mania confined to a certain point, or partial mania, the understanding being sound in every other respect. The subject of mania involves the consideration of delusions and hallucinations, which will be treated of further on : 6 Field's L. B., § 419. § 23. General mania ; character of. General mania affects the intellect, the emo- tions, and the passions, and throws the whole mind into a state of minoled excitement and confusion. It has l^een desisfnated as raoins^ in- coherence. The maniac either misapprehends the true relations between persons and things, in consequence of which he adopts notions maui- 56 field's medico-legal guide. festly absurd, and believes in occurrences that never did and never could take place, or his sentiments, affections and emotions are so per- verted, that whatever excites their activity is ^dewed through a distorting medium, or, which is the most common fact, both these conditions may exist together, in which case their relative share in the disease may differ in such a degree that one or the other may scarcely be perceived : Id. ; Bouv. L. D., Mania ; Guy & F. on Foren- sic Med. (5th ed.) 197, 198 ; Beck's Med. Jur. , (10th ed.) 705 et seq. § 24. Intellectual mania. General intellectual mania is said to consist in many cases in a violent disturbance of all the in- tellectual faculties, brought about by the over- excitement of some one leadins: emotion or passion. Mr. Gu}^ illustrates this kind of mania as follows: "A patient of ours, who, after in- dulging for years in a series of strange and in- decent acts, had an attack of o^eneral mania, followed by brain softening, in which state he claimed to know all about the human body, as having made it, to be the Christ, King of Eng- INSANITY AND ITS LEGAL RELATIONS. 57 land, and heir apparent, to have written a uni- versal history in a curiously short spnce of time, and to be in possession of untold wealth : " Guy & F. on Forensic Med. (5th ed.) 200. § 25. Partial mania, or monomania. The simplest form of this disorder is where the subject takes up some one notion opposed to common sense and universal experience. " He is secretary to the moon, the Crystal Palace, a grain of wheat, a goose pie, a pitcher of oil, a wolf, a dog, or a cat. In many cases this single delusion relates to or is caused by some sensa- tion or disease, which the monomaniac, like the dreamer, associates with imaginary accompani- ments. Thus Equirol tells us of a woman who, having hydatids in the womb, insisted that she was pregnant with the devil ; of another, who, having adhesion of the intestines after chronic peritonitis, imagined that a regiment of soldiers lay strug- gling and fighting in her belly ; of a third, who, •suffering in the same way, believed that the Apostles and Evangelists had taken up their abode in her bowels, and were occasionally vis- ited by the Pope and the Patriarchs of the Old 58 field's medico-legal guide. Testament : " Guy & F. on For. Mecl. (5th eel.) 201. This kind of munia embraces all delusions and hallucinations, which we will proceed to consider. § 26. Delusions and hallucinations in general. These are common manifestations of partial mania. By delusions is meant a firm belief in something impossible, either in the nature of things or in the circumstances of the case, or, if possible, highly improbable, and associated iu the mind of the patient with consequences that have to it only a fanciful relation. By halluci- nation is meant an impression supposed by the patient, contrary to all proof of possibility, to have beeu received through one of the senses. For instance, the belief that one is the Pope of Rome is a delusion ; the belief that one hears voices speaking from the walls of a room, or sees armies contending in the clouds, is halluci- nation. The latter implies some morbid activity of the perceptive powers ; the former is a mis- take of the intellect exclusively : See Boiiv. L. D., Mania, and authorities cited. We shall notice hereafter the legal consequences of par- tial mania : 6 Field's Lawyers' Briefs, ^423. INSANITY AND ITS LEGAL RELATIONS. 59 § 27. Moral and effective mania ; morbid impulses. Moral and effective mania is distinguished by Guy and Ferrer into two classes — general and partial. In criminal cases a test of irresponsi- bility for acts is mental delusion. But moral mania, it seems, may exist without this, as in case of irresistible tendencies or impidses to do some wrono^ful act. Partial moral mania " con- sists in the intense activity of some one passion or propensity, and its pi-edomi nance or complete mastery over every other. The persons thus affected are usually perfectly conscious of their condition, and either evince the utmost horror at the conduct to which their ruling ])assion would impel them, and with difficulty restrain them- selves, or they give way, as if in desperation, to the impulse. There is no strong impulse of our nature that may not be thus placed, by morbid excitement, beyond the restraint of reason and conscience : " Guy & F. on For. Med. (5th ed.) 204. The following forms of partial moral mania have been recognized : homicidal mania^ klepto' mania^ or a propensity to theft ; pyromania, or a propensity to incendiarism ; dipsomania^ or 60 field's medico-legal guide. an excessive craving for. intoxicating liquors; suicidal monomania^ and puerjieral mania : Id. § 28. Homicidal mania, or the propensity to kill. In case of a plea to an indictment of insanity as a defense, and the proof is clear that the de- fendant at the time was in the condition of abso- lute amentia, dementia, or general mania, the court generally directs an acquittal ; and per- haps the same practice should prevail where mental unsoundness in respect to the particular act is clearly shown to have existed at the time the criminal act charged was committed : See Collison on Lunacy, 573 ; 4 Bl. Com. 24 ; Rex V. Oxford, 9 Car. & P. (Eng.) 525 ; State v. Spencer, 21 K. J. L. 196 ; McAlister v. State, 17 Ala. 434. Homicidal monomania is recognized 'by medi- cal authors as a mental disorder. It consists of a propensity to kill — to take the life of an- other — impelled by an inward, irresistible force or necessity, without motive or provocation. The victim may be a devoted wife, or an affec- tionate child, to whom the unfortunate father or mother has been most tenderly attached. INSANITY AND ITS LEGAL RELATIONS. 61 111 most of such cases it has been observed that there has been some derangement of health, or some deviation from the ordinary physiologi- cal condition, such as delivery, suppression of menstruation, and the like ; but occasionally no incident of this kind can be detected — the pa- tient has been, apparently, in ordinary con- dition, both bodily and mentally. This mental condition may sometimes be the result of great religious excitement, and a deluded belief that some great calamity or danger is impending over a child or wife who becomes the victim, and the act is done from a belief that it is necessarv to avoid a worse result. The legal relations of this unsound condition of mind we have before stated, as follows : To constitute a defense [to a criminal charge] on the ground of irresistible impulse, it must exist to such an extent and with such violence as to ren- der it impossible for the party to do otherwise than to submit to it : See 2 Field's Lawyers' Briefs, §273; Scott v. Com. 4 Met. (Ky.) 227 ; Hoppes'y. State, 31 111. 385; Stevens v. State, 31 Ind. 486; State v.Felter, 25 la. 67; Com. v. Hos- ier, 4 Pa. St. 266; Board v. State, 30 Miss. 600. 62 field's medico-legal guide. In the case last cited it was observed : "In order to constitute a crime, a person nmst have intelligence and capacity enough to have a criminal intent and purpose ; and if his reason and mental powers are either so deficient that he has no will, no conscience or controlling mental power ; or if, through overwhelming violence or mental disease, his intellectual power is, for a time, obliterated, he is not a responsible moral agent, and is not responsible for criminal acts." To constitute a complete defense, insanity, if partial, as in case of monomania, must be of such a degree as to wholly deprive the accused of the guide of reason in regard to the act with which he is charged, and of the knowledge that he is doing wrong in committing it : State v. Spencer, 21 N. J. Law, 196; 1 Whart. & S. Med. Jur., §§ 144, 162, 531, 537 ; E. v. Barton, 3 Cox C. C. (Eng.) 275 ; R. v. Goode, 7 Ad. & El. (Eng.) 536 ; \ v. Oxford, 9 C. & P. 553 ; Willis V. People, 32 N. Y. 715 ; Flanagan v. People, 52 N. Y. 467. And mere "moral in- sanity," where the person is intellectually sane, will not exempt from responsibility : State v. Lawrence, 57 Me. 574; Com. v. Heath, 11 INSANITY AND ITS LEGAL RELATIONS. 63 Gray (Mass.), 303 ; Freeman v. People, 4 Deiiio (N. Y.), 10 ; Shater v. People, 2 N. Y. 199 ; Farrei* v. State, 2 Ohio St. 54 ; Choice v. State, 31 Ga. 424; People v. Coffinaii, 24 Cal. 230; United States v. Schultz, 6 McLean, 121 ; United States v. Holmes, 1 Cliff. (U. S. C. C.) 198 ; 1 Whart. & S. Med. Jur., § 186 et seq. ; Whart. on Ment. Unsound. 43 ; State v. Spencer, 21 N. J. L. 196 ; Reg. v. Barton, 3 Cox C. Cas. (Eng.) 275. § 29. Kleptomania, or propensity to steal. The tendency or irresistible propensity to steal is anions: the recoo-nized forms of mental derangement. It is frequently manifested in persons of irreproachable life, and who are in easy and even in opulent circumstances, and by habit and education above all petty dishonesty. The articles stolen are frequently, and perhaps usually, of trifling value, and are put away out of sight as soon as stolen. This intellectual dis- ease, or obliquity, is said to generally occur in connection with some pathological or other ab- normal condition, as a sequel of fever or blows on the head, of pregnancy or disordered men- 64 field's medigo-legal guide. struation, and the precursor of mania and or- o'auic disease of the brain : See Whart. on c Ment. Unsoundness, 44. § 30. Disinclination to regard it as a defense. There has been mucli disinclination of the courts to recognize Mejptomania as a defense to an act of theft. The spirit of this feeling was expressed by Baron Alderson, who observed : "A man might say he picked a pocket from some uncontrollable impulse ; and in that case the law would have an uncontrollable impulse to punish him : " Reg. v. Pate, Lond. Times, July 12, 1850. Neither theoretically nor practically is this form of insanity recognized as a defense for theft. But when the law comes to reflect more clearly the light of science, such a defense will not perhaps be regarded as a " dangerous inno- vation," as expressed by Baron Parke : See Reg. V. Barton, 3 Cox C. Cas. 275 ; Chit. Med. Jur. 352. §31. Pyromania, or a propensity to burn; and aidoi- mania, sexual propensity. These indications of unsound mind are recoo'- nized by medical authors. The latter is said INSANITY AND ITS LEGAL RELATIONS. 65 always to occur in young subjects, and is sup- posed to be connected with disordered menstrua- tion, or that physical evolution which attends the transition from youth to manhood. Of both, the same remarks would be applicable which were made in the last section relating to klepto- mania. Doubts have been expressed as to the maniacal character of these singular impulses, which have generally been attributed to deprav- ity of character rather than disease. Nothing, however, seems better established by abundance of cases related by distinguished observers. In spite of all metaphysical cavils, there are the cases on record ; and there they will remain, to be increased in number by every year's obser- vation. § 32. These have not received much favor as a defense. Kleptomania, pyromania and idoimania, in what may be called their milder forms, have not received much favor as a defense for the acts which they suggest. But juries have been loath to convict a man for a petty theft who, toward the close of an exemplary life, has been detected in stealing things of insignificant value, or a 66 field's medico-legal guide. woman who, when pregnant, and only then, for- gets entirely the distinctions of meum and tuum, though at all other times a model of moral pro- priety : Whart. on Ment. Unsound. 43. Whatever may be the theory of the law as to the milder forms of these kinds of permanent or temporary monomania as a defense in crimi- nal cases, there may be extreme manifestations of it, amounting to "irresistible impulse," or "uncontrollable tendency"; and in such cases the mantle of the law would cover and protect the monomaniac : Ante^ § 29. And if a youth should set fire to a buildino; under an " uncou- troUable impulse," shall it be said that the law would have an " uncontrollable impulse to pun- ish him for it ? " § 33. Alcohol I its uses and effects. Alcohol is the product of a fermentation in- duced by the action of a microscopic fungus, yeast, upon certain kinds of sugar, especially grape sugar, and al;:0 upon that derived from starch of any description, and in the same man- ner upon milk sugar. In such cases a peculiar metamorphosis takes place, by which the alcohol INSANITY AND ITS LEGAL RELATIONS. 67 and carbonic acid are produced in considerable amount, togetiier with very minute quantities of succinic acid, glycerine and other bodies : Quain's Med. Die. (8th Am. ed.) 24. Alcohol may also be produced synthetically from its elements, car- bon, hydrogen and oxygen. Alcohol is a pow- erful antiseptic^ })rol)a!)ly from the fact that it is capable, when diluted, of preventing the devel- opment of septic germs, such as vibrios and bac- teria, as well as paralyzing the activity of those already formed : 6 Field's L. B., § 425. § 34. The psychological effects of alcohol. On this subject Dr. Binz observes : "There is scarcely any therapeutical agent, the internal effects of which vary so much according to the dose given. In small quantities, and slightl}' diluted with water, alcohol promotes the func- tional activity of the stomach, the heart and the brain ; whilst a large quantity, largely diluted, exerts but a limited influence upon these organs. If, however, the dose of alcohol be often repeated, it is readily assimilated, and becoming diffused through the svstem, undei-jroes combustion w^ithin the tissues of the body, imparts warmth to them, 6S field's medico-legal guide. and yields vital force for the performance of their various functions. Simultaneous with this con- sumption of alcohol, the body of the consumer is often observed to o^row fat, a circumstance due to simple accumulation, the fat furnished by the food remaining unburned in the tissues, because the more combustible alcohol furnishes the warmth required, leaving no necessity for the adipose hydro-carbon to be used for that pur- pose. . . . The symptoms of intoxication produced by large doses of alcohol are sufficiently well known. When the abnormal condition of excitement in the brain, induced by this stimu- lant, has been kept up, almost without intermis- sion, for a length of time, or when it is suddenly withdrawn after the organ has been long sub- jected to it, the disturbance brought about is so great and persistent as to result in a complete overthrow of the reasoning faculties, and the condition known as delirium tremens ensues. There can be no doubt but that a healthy organism, supplied with sufficient food, is capable of performing all its regular functions without requiring any specially combustible ma- terial for the generation of heat and the develop- INSANITY AND ITS LEGAL RELATIONS. 69 meiit of vital force. But the case assumes a dif- ferent aspect when in sickness it transpires that, while the metamorphosis of tissue goes on with its usual activity or with increased energy, as happens in many diseases, the stomach, refus- ing to accept or digest ordinary food, fails to supply material to compensate for this waste. Here it is, then, that a material which can ])e most readily assimilated by the system, and which by its superior combustibility spares the sacrifice of the animal tissue, is especially called for ; and such material we have in alcohol : Quain's Med. Die. (6th Am. ed.) 24-26. § 35. Alcoholism defined. This term is applied to the diverse pathological processes and attendant symptoms caused by the excessive ingestion of alcoholic beverages. These are very different if a large quantity is consumed at once, or at short intervals', or if small quan- tities are taken ha1)itually ; hence they are sub- divided into those due to acute and chronic alcoholism. To the acute forms of alcoholic poi- soning belong the acute catarrh of the alimentary mucous membrane, rapid coma, some cases of 70 field's medicolegal guide. deliriaiu tremens^ and certain special forms of acute insanit}' ; whilst to the chronic class are referred the prolonged congestions, the fatty and connective tissue defeneration of the various oro'ans and tissues, most cases of delirium tremens, nervous affections of slow onset and course, and cachexia, which in vaiying com] )i nations attend a continuously immoderate consumption of alco- hol : Id. The followino^ frao-ment from an instructive paper, by Dr. John Cnrnow, may be found in Quain's Med. Die. (8th Am. ed.) 29. He says : " The forms of insanity caused by alcoholism are acute mania and melancholia, chronic dementia, and onomania. In the first, homicidal impulses, and in the second, strong suicidal tendencies, due to actual delusions and not to mere passive ter- rors, are added to the other signs of delirium tremens. Onomania is a peculiar form of in- sanity, in which the patient breaks out into par- ox^'sms of alcoholic excess, attended with violent, strange, or even indecent acts, due apparently to uncontrollable impulses. The attack lasts a few days, and is succeeded by a long interval of sobriety and chastity. These patients have gQW- INSANITY AND ITS LEGAL RELATIONS. 71 erall}^ some herediUiiy taint ; and not unfre- quently evidences, though often slight, of a mor- bid mental state nmy he detected in the intervals, if very carefully looked for." § 36. Qxiininism | similarity oi symptoms to alcoholism. From some personal experiences as well as ob- servations the author is induced to say that the excessive use of quinine and perhaps other medi- cines will produce delirium, and in fact some of the symptoms, at least, of delirmm tremens. And in this conclusion he is supported, to some extent, by respectable authority. A disease known as quininism is recognized by medical authors ; and it is defined to be " a group of symptoms chiefly connected with the nervous system, produced by the presence of quinine in the system : " Quain's Med. Die. (8th Am. ed.) 1317. Large doses of quinine, or smaller doses long continued, may act upon the nervous system after absorption, and the nervous symptoms thus pro- duced are usually called cinchonism : Id. On this subject Dr. Burton observes : " The nervous symptoms to which the term cinchon- 72 field's medico-legal guide. ism is applied consists of afiectioiis of the hearing and sight, cephalalgia, and sometimes giddiness. Delirium, convulsions and collapse are said to occur after very large doses. Noises arie heard in the ears, the sounds being of a humming character, or resembling a distant water-fall, the rino'ino: of bells, or the strikino- of a clock. These noises are accompanied by more or less deafness, voices being heard as if the speakers were at a distance. . . . Affections of the sight are less common. They consist of occa- sional optical illusions, intolerance to light, am- blyophia, mydriasis, and even blindness after large doves. . . . Giddiness also comes on, so that the patient may have difficulty in stand- ing or walking, either after a single large dose, or after repeated or continued small doses. . . . The giddiness is probaljly partly due to weak- ness of the circulation, in part to the action of quinine on the nerves and nervous centers. In some persons large doses of quinine cause a febrile condition, unaccompanied by cephalalgia, but preceded by humming in the ears, disturb- ances of the mental faculties, and a slight rigor. In others, the cerebral symptoms have been so INSANITY AND ITS LEGAL RELATIONS. 73 marked as almost to amomit to a temporary mania : " Qiiaiii's Med. Die. (6th Am. ed.) 1318. See jpost^ topics Delirium and Delirium Tremens, §§ 38, 40. § 37. Delirium in general. This is a form of mental aberi-ation incident to febrile diseases and sometimes to the last stages of chronic diseases. Of this aberration of mind, Messrs. Guy & F., in their. Forensic Medicine, observe: "Regardless of persons or things around him, and scarcely capa])le of recognizing them when aroused by his attend- ants, the patient retires within himself, to dwell upon the scenes and events of the past which pass before him in wild and disorderly array, while the tongue feebly records the varying im- pressions in the form of disjointed, incoherent discourse, or of senseless rhapsody : " Guy & F. on For. Med. (5th ed.) 180; Ray's Med. Jur. 346- The former authors say: "In fatal cases, de- lirium usually passes into coma, but occasionally it disappears some hours before death, leaving the patient in the full possession of his faculties. In some cases the memory of things long past 74 field's medico-legal guide. revives, and iaDoiuioes that had loiio' fallen into disuse are again spoken with fluency. Delirium is an almost constant sj^mptom of poisoning by belladonna, hyoscyamus and stramonium ; a fre- quent result of poisoning by other narcotic acrids ; an occasional one in poisoning by pure narcotics and irritants." § 38. Legal relations of delirium. It will be manilest that the subject of de- lirium would not be" competent to do any civil acts, nor responsible criminally for any act done or committed during an access of delirium. The general rule here prevails, which, as we have noticed, governs in other cases of unsoundness of mind, or where the entire soundness of the mind of a testator is questionable, namel}^ : that the Will of the party will usually ])q sustained where the provisions are reasonable and consistent, and in harmony with the desires expressed by the tes- tator when mental soundness was unquestioned, when it would not be it it were otherwise. Wills and other instruments executed during lucid intervals w^ould not be aftected by a return of delirium. But it has been suggested that it INSANITY AND ITS LEGAL RELATIONS. iO is important to distiiiguisli delirium, with inter- vals of perfect consciousness, from the calmness of demeanor sometimes assumed by patients laborino- under strano-e delusions, showinsf them- selves in the lirst stao'e of convalescence from fever or other acute disease : Id. But actual delirium at the time of the execution of a con- tract or Will invalidates it : Dew v. Clark, 3 Add. Eccl. (Eng.) 79 ; Johnson v. Moore, 1 Litt. (Ky.) 371. See also Contracts, vol. 2, Field's L. B., § 80 ; Wills, vol. 5, Field's Law- yers' Briefs, ^ 727. § 39. Delirium tremens, or mania a potu. This is a form of mental disorder incident to habits of intemperate drinking, which generally appears as a sequel to a few days' abstinence from stimulatino- drink. But abstinence, as a cause, is not a settled question ; and in various cases where the abstinence was apparently vol- untary there is reason to suppose that it was, in fact, the incubation of the disease, and not its cause : See Beck's Med. Jur. (10th ed.) 807 ; Ray's Med. Jur. 520 ; Guy & F. on Forensic Med. (5th ed.) 181 ; Criminal Law, vol. 2, 76 field's medico-legal guide. Field's Lawyers' Briefs, § 276 ; Quain's Die. Med. (Am. ed.), sub. Alcoholism. The disease is easily recognized by the pecu- liar form which the mental unsoundness assumes, and by the equally characteristic bodily symp- toms, and by the previous history ; and in most cases, by the prompt recovery following the ju- dicious use of remedies. But a state closely allied to delirium tremens may be brought on by prolonged abstinence, too close attention to study or business, and sexual excesses or malpractices, and these may co-operate, to produce the disease. § 40. Symptoms and general characteristics of delirium tremens. From the authorities above cited, and others relating to the subject, we find the following are among the common symptoms and general char- acteristics of the disease : A weak and com- pressible pulse, cold and clammy extremities, sleeplessness, agitation, hallucination and sus- picion ; but malignity of feeling is seldom mani- fested. The patient is restless, sleepless, suspi- cious and cunning ; has highly characteristic illusions of hideous and loathsome objects, such as toads, serpents, scorpions, and hears strange INSANITY AND ITS LEGAL RELATIONS. 77 sounds and familiar or strange voices where no one is present ; is constantly trying to escape from some imaginary danger, or the presence of those whom he supposes would injure him ; and in extreme cases the patient exhibits all the symptoms of acute mania. The following is a more particular statement of these symptoms and characteristics : " Its approach is generally indicated by a slight tremor and fidtering ot the hands and lower extremities, a tremulousness of the voice, a certain restlessness and sense of anxiety which the patient knows not how to describe or account for ; disturbed sleep and im- paired appetite. These symptoms having con- tinned two or three days, at the end of which time they have usually increased in severity, the patient ceases to sleep altogether, and soon be- comes delirious at intervals. After a while the delirium becomes constant, as well as the utter absence of sleep. This state of wakefulness and delirium continues three or four days, when, if the patient recover, it is succeeded by sleep, which at first appears in uneasy and irregular naps, and lastly in long, sound and refreshing slumbers. When sleep does not supervene about 78 field's medtco-lp:gal guide. this time, the disease proves fatal. The mental aberration of delirium tremens is marked bv some peculiar characters. Ahiiost invariably the patient manifests feelings of fear and sus- picion, and Libors under continual apprehensions of being made the victim of sinister designs and practices. He imagines that people have con- spired to roi) or murder him, and sometimes insists that he can hear them in an adjoining room arranging their plans and preparing to rush upon him, or that he is forcibly detained and prevented from going to his own home. One of the most common hallucinations of this disease is that of constantly seeing devils, snakes or vermin around him. Under the terrors inspired l»y these notions, the wretched patient often endeav- ors to cut his throat, or jmiip out of the window, or murder his wife, or some one else whom his disordered imaofination identifies with his ene- mies : '' Condensed statement of symptoms in Bouv. L. D., sub. Delirium Tremens; Quain's Die. Med. (Am. ed.), sub. Alcoholism. But the hallucinations and delusions of the victim of delirium tremens, as well jis of other maniacs, are not always of a disao-reeable char- INSANITY AND ITS LEGAL IlELATIONS. 79 acter. The piitient frequently enjoys for hours a succession of hallucinations of the most inter- esting and pleasing character ; and tine pano- ramic views, visions of the beautiful in nature and art, and pantomimic performances of per- sons with which he may not be acquainted, ap- parently intended to convey some useful instruc- tion, or encouraire some important resolution of the subject to reform, and wiiich is not unfre- quently appreciated and enjoyed by him, are not uncommon : Guy & Fer. on For. Med. (5th ed.) 211 et seq. A recovered relisiious maniac, author of an interesting autobiography, referring to his illu- sions, says : " My senses were all mocked at and deceived. In reading, my eyes saw words on a paper, which, when I looked again, were not. The ibrms of those around me, and their features, chano-ed as I looked on them. ... I heard the voices of invisible agents, and notes so divine, so pure, so holy, that they alone, perhaps, might recompense me for m;uiy sufferings :" Id. And it appears that the conversion of familiar sounds, such as the lowing of cattle, the falling of water, the grating 'of a chain, the noise of footsteps. 80 field's medico-legal guide. into articulate speech, was not the least remark- able of this most interesting case. And these are common illusions of the subject of delirium tremens : See Id. 175 ; 6 Field's L. B., § 432. The hallucinations of these subjects are won- derfully variant and unaccountable. Those who are familiar with the play " M'liss " will probably recall the dialogue between Bummer Smith and his daughter, M'liss, which illustrates one phase of these delusions and hallucinations in respect to the reality of impressions upon the senses of sight and hearing as objective realities, and espe- cially the uncertainty w^hich the victim feels in respect to such impressions. It is as follows : S. M'liss, if I war to ask you a question, you wouldn't deceive your poor old dad, would you ? M. Wouldn't deceive, — you know. S. In course I do, M'liss, in course I do ; now, if I war to ask you, if you seed that ar rabbit that rund along by that ar tree, — did yer see it, M'liss, eh ? M. It war a rabbit. S. I thought it mought have been a squirrel, but it war a rabbit, weren't it, M'liss ? M. I seed it, dad. INSANITY AND ITS LEGAL RELATIONS. 81 S. Now, M'liss, may be it war a jackass-rabbit ; you wouldn't say it warn't a jackass-rabbit if it war a jackass-rabbit, would ye, M'liss ? M. It war a jaci^ass-rabbit. S. You wouldn't say a jackass-rabbit war some other kind of a rabbit — you know I seed it ; now, if I war to ask you, for instance, if it wore a green hat and a yaller ribbon, you wouldn't fool me and say it did if it didn't ? M. And a red rosette. S. I didn't quite ketch on to the rosette ; but I say. M'liss, do you think it altogether the square thing for a rabbit to war a rosette ? M. Shouldn't war a rosette. S. That's so, M'liss, that's eh ? M. I didn't say anything. S. Who said you said anything ? What makes you think you said anything, and yer wouldn't think yer said anything, if yer didn't say any- thing, would yer, gal ? It may be observed that the subject of an attack of delirium tremens is frequently, after he has recovered, misled by the impressions made upon his mind while in the state of delirium, and will 82 field's medico legal guide. sometimes refer to these impressions as though they were among his ordinary experiences. And it is only after expressions of wonder and incre- dulity by his associates that he learns to be cau- tious and reticent in reference to them. To the victim the delusions and hallucinations are actual and objective, although arising from his own diseased brain ; and especially is this the case where these phenomena are not so extravagant as to carry on the face of them, even to the recovered victim, manifest evidence that they were delusions and hallucinations, and subjective rather than objective impressions. And it may be further observed that these phenomena may continue for some time after convalescence, and when the victim is apparently restored to his normal men- tal condition ; and especially is this the case in respect to the impression of hearing voices near him, or in an adjoining room, or outside in the open air. And not unfrequently such delusions aflford much amusement to the convalescent, who comprehends the source of them as his own un- restored brain. When it occurs, as it frequently does, that the thoughts and sentiments uttered by the unsubstantial visitors are entirely at vari- INSANITY AND ITS LEGAL EELATIONS. 83 aiice with his own, which is frequently the case, the phenomena become inexplicable. Some knowledge of these matters may be im- portant in cases where the mental soundness of a person may be a question under investigation, whether it arises on a question of his credibility as a witness, or on the validity of his will, or on his liability on contract, or even on his responsi- bility for some apparently criminal act. § 41. Legal relations of delirixim tremens. Delirium tremens is a recognized disease, with mental unsoundness a symptom ; wherefore the person thus diseased cannot be held responsible for his acts, and he will not be responsible for acts that would otherwise be criminal : Guy's For. Med. (5th ed.) 182 ; see also Criminal Law, vol. 2, 276 : United States v. Clark, 2 Cranch (U. S.), 158 ; United States v. McGlue, 1 Curt. (C. C.) 1 ; United States v. Drew, 5 Mason (C. C), 28 ; Rennie's Case, 1 Lew. C. C. (Eng.) 76 ; Rex V. Meaken, 7 C. & P. (Eng.) 297 ; O'Brien V. People, 48 Barb. 274; Real v. People, 55 Barb. 551 ; 42 N. Y. 270 ; Lonergan v. People, 6 Park. C. R. (N. Y.) 209 ; Bailey v. State, 26 84 field's medico-legal guide. Ind. 551 ; Bales v. State, 3 W. Va. 685 ; Carter V. State, 12 Tex. 500 ; Com. v. Eogers, 7 Met. (Mass.) 500 ; 41 Am. Dec. 458 ; Eay's Med. Jur. 520 ; j)Ost, § 57. § 42. Civil acts of persons of unsound mind. An idiot, lunatic, maniac, or other person no7i compos mentis, cannot make a valid contract or will ; and this rule applies whether the person be permanently or temporarily of unsound mind. If at the time he is mentally disabled from un- derstanding the purpose and effect of the act, it avoids it : See Contracts, vol. 2, Field's L. B., § 80. Such persons are incompetent in law to enter into a contract or to make a valid will : Hovey v. Hovey, 55 Me. 256 ; Dennett v. Den- nett, 44 N. H. 531 ; Bond v. Bond, 7 Allen (Mass.), 1 ; Sowers v. Pumphrey, 24 Ind. 231 ; Ham. on Ins. 10 ; Wills, vol. 5 ; Field's L. B., § 727 ; ante, §§ 18, 22, 26. § 43. In case of wills. Blackstone observes : •' Madmen, or otherwise no7i compotes, idiots or natural fools ; persons grown childish by reason of old age or distem- per, such as have their senses besotted by drunk- INSANITY AND ITS LEGAL RELATIONS. 85 eniiess — Jill these are incapable by reason of mental - disability to make any will, so long as such disability lasts :" 2 Bl. Com. 497 ; see also 1 eTar. on Wills (5th Am. ed.), 63 ; Ray's Med. Jnr., § 54 ; Brannatyne v. Brannatyne, 14 Eng. L. & Eq. 581. The law, however, makes a distinction be- tween the subjects of total mania, or unsound- ness of mind, and those of partial insraiity, mo- nomania, or unsoundness of mind, so far as it relates to testamentary capacity. In the latter cases the authorities distinctly sustain the doc- trine that the person may make a will, unless he at the time is laborins^ under a delusion which would materially influence the testamentary dis- position of his property : Guy & F. For. Med. (5th ed.) 216. A person may have an insane belief or delu- sion as to one or more subjects and not as to others ; and if the delusion has no relation to his testamentary disposition, it would not be af- fected by it ; and this may be inferred from the reasonable provisions of the will, and its entire accord with the wishes of the testator as ex- pressed on former occasions, when there was no 86 field's medico-legal guide. question as to his sanity and competency : See ante, §22; 2 Gr. Ev., § 371; 1 Best on Ev., §§ 147, 150 ; Foreman's Will, 54 Barb. (N. Y.) 274 ; Seaman's Friend Soc. v. Hopper, 33 N. Y. 619 ; Duffield v. Morri-s 2 Harr. (Del.) 375 ; see also Wills, vol. 5, Field's L. B., §§ 727, 729; Banks V. Goodfellow, 5 L. R., Q. B. (Eng.) 549; Hovey v. Chase, 52 Me. 304 ; Clapp v. Fuller- ton, 34 N. Y. 190 ; Boardman v. Woodman, 47 N. H. 120 ; Stackhoiise v. Hortoii, 15 N. J. Eq. 202 ; Taylor v, Kelly, 31 Ala. 59. It is not ever}' degree of unsoundness of mind which will take away the capacity for testa- mentary disposition. But where insane delusion and mental unsoundness has been shown to exist in a person, a presumption might properly arise against his competency to make a Avill : Rogers V. Walker, 6 Pa. St. 371 ; 47 Am. Dec. 470. '' And the presumption against a Avill made under such circumstances becomes additionally strono' where the will is, to use the term of the civilians, an inofficious one — that is to say, one in which natural affection and the claims of near relationship have been disregarded. But where, in the result, a jury are satisfied that the delu- INSANITY AND ITS LEGAL RELATIONS. 87 sioii has not aiFectecl the ijeneral faculties of the mincl, and can have had no effect upon the will, we see no reason why the testator should have lost his right to make a will, or why a will made under such circumstances should not be upheld :" Cockburn, C. J., in Banks v. Good- felk)w, 5 L. K. Q. B. (Eng.) 549 ; see also Stanton v. Weatherwax, 16 Barb. (N. Y.) 259 ; Hovey v. Chase, 52 Me. 304; Boardman v. Woodman, 47 N. H. 120; Clapp v. Fullerton, 34 N. Y. 190 ; Stackhouse v. Horton, 15 K J. Eq. 202 ; Truml)ull v. Gibbons, 22 N. J. L. 117 ; Taylor v. Kelly, 31 Ala. 59. As in other cases involving capacity, the questions to be de- termined are whether the testator had sufficient memory to recall his property, and those upon whom his bounty should confer it, and sufficient mind to construct a will with a due understand- ing of the business then in hand, and in the man- ner in which he desired his possessions to be dis- tributed : 1 Jar. on Wills (5th Am. ed.), 94 ; Clark V. Fisher, 1 Paige (N. Y.), 171 ; Higgins V. Carleton, 28 Md. 115 : Yoj v. McCord, 74 111. 33 ; Lowder v. Lowder, 58 Ind. 538 ; Quaine's Die. of Med. (Am. cd.), topic Wills, p. 260 ; 5 Field's L. B., § 727 ; 6 id., § 435, 88 field's medico-legal guide. § 44 Conduct and declarations of the testator. The conduct and declarations of the testator be- fore and after the execution of the will are held to be competent evidence if they tend to show un- soundness of mind or undue influence at the time of the execution , but not otherwise : Boy Ian v. Meeker, 28 N. J. L. 224 ; Kinne v. Kinne, 9 Conn. 104. So a sudden change of common and usual to eccentric and peculiar habits will frequently fur- nish very cogent evidence of insanity : Lucas v. Parsons, 27 Ga. 593. But it has been held that suicide is not conclusive evidence of it : Brooks v^ Barrett, Pick. (Mass.) 94 ; Burrows v. Bur- rows, 1 Hagg. (Eng. Eccl.) 109, 146. § 45. The test of capacity to manage business. "In the majority of cases of imbecility there is no dij05culty in deciding on the competency of the individual to take care of his own affairs, to form contracts, to devise property; but in a few cases, and especially when the subject of inquiry has been intrusted with or consulted about the management of his affairs, the question is not so easy. But a comparison of the existing with the former state of mind . . . supplies a simple and obvious test. The tests of capacity usually recommended in INSANITY AND ITS LEGAL RELATIONS. 89 cases of imbecility are obviously iDsiifficieiit to determine whether or not a man is capable of managing his own property. The arithmetical test, on which so much stress has been laid, is a test of knowledge, not of power. A man may be the best accountant in the world, but he may be a moral imbecile, and have so mean a sense of right, so childish a fancy, so weak a will, that from infancy to age he may yield to every im- pulse, and gratify every whim, without once counting the cost. A patient of our own, with whom we had been intimate for years, owed pence as a child, and pounds as a boy, and added debt to debt with each year that passed over his head, till at length a severe disappointment brought on a distinct attack of mania, of which a benevolent but extravagant mission, violent out- bursts of passion, fierce hatreds, arrangements to spend a year's income in a week, and the un- founded expectation of an immense fortune on the morrow, were constituent parts. He carried with him to an asylum a host of delusions, and died in the firm conviction that he was the Saviour of mankind. In this case there was the cultivated and refined intellect of a man with 90 field's medico-legal guide. more than the weakness of a child ; but no test could have proved him incapable of managing himself and his affairs, save only the history of his life. The criminal acts of persons of weak intellect are as strongly mai'ked b}^ folly as their words and actions. They have no surer chai'ac- ters, and we no better trust. But in this case, as in that of maniacs, the law insists upon the test of a knowledge of right and wrong, which is as insufficient in criminal as the arithmetic test in civil cases. It is the test of knowledge, not of power ; and the knowledge of right, and the power to act aright, are as distinct as science and art : " Guy & F. on For. Med. (5th ed.) 209 ; see also McCurry v. Hooper, 12 Ala. 823 ; 46 Am. Dec. 289 ; see also Foster v. Means, 1 Spear Eq. (S. C.) 569 ; 42 Am. Dec. 332. It has been held that a kind or degree of in- sanity whi(;h would not excuse a person for a criminal act may render him legally incompe- tent to manage himself and his affairs : Belli ng- ham-s Case, 5 C. & P. (Eng.) 168. On this question Mr. Mandsiey says : " If a person is incompetent to manage property, it is because be has lost some portion of his mental INSANITY AND ITS LEGAL RELATIONS. 91 power ; and this fact cannot justly be ignored in deciding upon his responsibility for criminal acts. Insanity once admitted, it is within the reach of no mortal comprehension to know exactly how far it may have affected the quality of his acts. To say that, possibly, it may have had no efi'ect at all, is not enough. It should be proved by the party who affirms it : " Mandsley on Eesp. in Ment. Dis. 111. But this relates to the burden of proof, which we will hereafter consider. In- sanity once admitted, in any degree, it is only sheer presumption, not wisdom, to say that it could not have perverted the action of the mind in regard to any particular criminal act : Ray's Med.^Jur. 60-64, 273-284. § 46. Doctrine as to the biirden of proof. The English rule as to the burden of proof, on a plea of insanity in a criminal case, is upon the defendant, and he is required to prove his in- sanity beyond a reasonable doubt. The defense is one of confession and avoidance, and the matter of avoidance must be fully established by the [)risoner : 3 C. & K. (Eng.) 188 ; 4 Cox C. C. (Eng.) 155. And this rule has been fob 92 field's medico-legal guide. loAved in various states in this country : See 21 N. J. L. 202 ; 76 Pa. St 414 ; 8 Jones (N. C), 463 ; 36 Am. Eep. 467. But in most of the states of the Union the general rule seems to be that, whenever in the course of a trial evidence is produced showing that the defendant was of unsound mind at or before the time the criminal act was done, the burden of proof immediately rests upon the prosecution to show the contrary. In such a case the onus shifts upon the prosecution, and it devolves upon that side to show that insanity did not exist, or if it did, that it was not of such a character as to excnse the act : 14 A. L. Reg. N. S. 20 ; 16 id 453 ; 40 N. H. 399 ; 43 id. 224 ; 19 Ind. 170 ; 40 111. 352 : 17 Mich. 9 ; 10 Fed. Rep. 163, 202 ; 2 Field's Lawyers' Briefs, § 272 ; 4 Field's Lawyers' Briefs, §§ 114, 146. § 47. General presumption. The general presumption is in favor of mental soundness, and usually the burden of proof would rest upon the party denying it, whether the ques- tion arises upon a contract or will, or upon trial INSANITY AND ITS LEGAL RELATIONS. 93 for a crime. But if a previous state of general insanity is shown, the ])urden of proof would be changed, and in such a case proof of the sanity of a testator would devolve upon the party affirming it : See Wills, Vol. 5, Field's Lawyers' Briefs, § 730 ; Evidence, vol. 3, Field's Lawyers' Briefs, § 310 ; Best on Ev., §§ 332, 405 ; 2 Gr. Ev., § 689 ; Grabill v. Barr, 5 Pa. St. 441 ; 47 Am. Dec. 418 ; Kogers v. Walker, 6 Pa. St. 371 ; 47 Am. Dec. 470 ; Commonwealth v. Eogers, 7 Met. (Mass.) 500 ; 41 Am. Dec. 458 ] see also Gerish v. Nason, 22 Me. 438 ; Cilly v. Cilly, 34 Me. 162 ; Dean v. Dean, 27 Yt. 746 ; Gabriel v Barr, 5 Pa. St. 441 ; 47 Am. Dec. 418 ; Thomp son V. Kyner, 65 Pa. St. 368 ; Eckert v. Flowry 43 Pa. St. 56 ; Triunbull v. Gibbons, 22 N. J. L' 117 ; 51 Am. Dec. 253 ; Morris v. Stokes, 21 Ga. 552 ; Taylor v. Kelly, 31 Ala. 59 ; Colton V. Ulmei-, 45 Ala. 378 ; Chandler v. Barrett, 21 La. An. 58 ; Guthrie v. Pierce, 33 Ark. 396 ; Matter of Coffman, 12 la. 491 ; Mclntyre v. McCown, 28 la. 480 ; Roe v. Taylor, 45 111. 485 ; Rutherford v. Morris, 77 111. 397 ; Harvey v- Sullens, 46 Mo. 157 ; People v. Meyers, 20 Cal- 520. 94 field's medico-legal guide. The rale as to the qiuiiitiim of evideuce to es- tabUsh insanity as a defense in criminal cases is the same as in civil cases, viz.: that the jury may determine the question from a mere preponder- ance of evidence ; and proof that snch a mental condition existed beyond a reasonable doubt does not seem to be required : State v. Lawrence, 57 Me. 574 ; Com. v. Rogers, 7 Met. (Mass.) 500 ; Com. v, Eddy, 7 Gray (Mass.), 183 ; Fer- ris V, People, 35 N. Y. 125 ; Hoffs v. People, 31 111. 385 ; State v. Felter, 32 la. 50 ; State v. Hundley, 46 Mo. 414 : State v. Reidemire, 70 Mo. 173; 36 Am. Rep. 462. § 48. Test of capacity to contract. Partial insanity upon a subject in no wise con- nected with a contract will not invalidate it : Boyce v. Smith, 9 Gratt. (Ya.) 704 ; 60 Am. Dec. 303 ; and contracts made with lunatics are not all absolutely void : Richardson v. Strong, 13 Ired. L. (N. C.) 106 ; 55 Am. Dec. 430 ; as for goods furnished innocently on his order : See Beals V, Lee, 10 Pa. St. 96 ; 40 Am. Dec. 573. Nor will weakness of mind arising from old age or other causes invalidate an obligation executed INSANITY AND ITS LEGAL RELATIONS. 95 by the party. But if Ihe instrument wjis pro- cured by the use of undue influence or fraud, it would be invalid, and set aside in equity ; and imbecility of mind and understanding usually constitutes a material ino;redient in determininir the question whether a contract has been obtained by fraud, imposition or undue influence : Juzan V. Toulman, 9 Aia. 662 ; 44 Am. Dec. 448 ; Smith V. Beatty, 2 Ired. Eq. (N. C.) 456 ; 40 Am. Dec. 435 ; Clark v. State, 12 Ohio, 483 ; 40 Am. Dec. 481. The acts and contracts of persons of weak understanding, or imbecility of mind, and who are therefore liable to imposition, will be held void if the nature of the act or contract justifies the conclusion that the party has not exercised a deliberate judgment, but has been imposed upon, circumvented, or overcome 1)}^ cunning, artifice, or undue influence. And a contract may be set aside in equity where there is imbecility or weak- ness of mind arising from old age, sickness, intemperance or other cause, and manifest inade- quacy of consideration ; or where there is weak- ness of mind and circumstances of undue influence and advantage : See Equity Jurisprudence, vol. 96 FIELDS MEDICO LEGAL GUIDE. 3, Field's L. B., §§ 87, 88; Fraud, vol. 3, Field's L. B., §§558, 575 -, Tracy v. Sackett, 1 Ohio St. 42; 59 Am. Dec. 610. § 49. Liability for torts. A lunatic, or other person 7ion compos mentis, is liable in damages iu a civil action for any tort which he may commit, although he is not pun- ishable criminally therefor : Morse v. Crawford, 17 Vt. 449: 44 Am. Dec. 349; Williams v. Cameron, 26 Barb. 172 ; Behrons v. McKinze, 23 la. 343; Contracts, vol. 2, Field's L. B., § 81. § 50. Unsoundness of mind as a defense to a criminal charge. An idiot, lunatic, or permanently insane person, or one who is otherwise unsound in mind, to the ex- tent that he does not know whether he is doing right or wrong, is not punishable for any act he may do while in that state : See vol. 2, Field's L. B.,.§§ 270, 271; Reg. v. Law, 2 F. & F. (Eng.) 836; Rex V. Offord, 5 C. & P. (Eng.) 168 ; Yance v. Com., 2 Va. Cas. 132 ; State v. Spencer, 21 N. J. L. 196 ; McAlister v. State, 17 Ala. 434. A person cannot be responsible for a crime unless he possesses sufficient mental capacity and Intel- INSANITY AND ITS LEGAL RELATIONS. 97 ligeiice to have a criminal intent, and if his men- tal powers are so deficient that he has no will, conscience, or controlling mental power, or if throuo'h the overwhelmins^ violence of mental disease his intellectual power is for the time oblit- erated, he is not a responsible moral agent, aud is not responsible criminally for his acts : Com- monwealth V. Eogers, 7 Met. (Mass.) 500 ; 41 Am. Dec. 458 ; see also McAlister v. State, 17 Ala. 434; 52 Am. Dec. 180; Freeman z;. People, 4 Denio (N. Y.), 1; 46 Am. Dec. 216; Criminal Law, vol. 2, § 271; Shelf, on Lunacy, 458; Wills V. People, 32 N. Y. 715 ; State v. Lawrence, 57 Me. 574 ; State v. Hunting, 21 Mo. 464 ; Peo- ple V. Coffman, 24 Cj^I. 230; People v. Sprague, 2 Park, C. K. (N. Y.) 43 ; Commouwealth v. Heath, 11 Gray (Mass.), 303. The Ijroad doctrine on this subject may be stated as follows : No act done by a person in a state of insanity can be regarded as an offense, and no insane person can be tried, sentenced to any punishment, or punished for any act or offense which he commits in that state. On this subject Blackstone says : "If a man in his sound memory commits a capital offense, and before 98 field's medico-legal guide. arniignmeiit for it he becomes mad, he shall not be tried ; if after he be tried and found guilty he loses his senses, before judgment, judgment shall not be pronounced ; and if after judgment he becomes of non-sane memory, execution shall be stayed. If there be any doubt whether the person be comj)os or not, this shall be tried by a jury. And if he be so found, a total idiocy or absolute insanity excuses from the guilt, and of course from the punishment of any criminal action committed under such depriva- tion of the senses ; but if a lunatic hath lucid intervals of understanding, he shall answer for what he does in those intervals, as if he had no deficiency : " 4 Bl. Com. 24 ; Shelf, on Lunacy, 467 ; Freeman v. People, 4 Denio (N. Y.), 10 ; 47 Am. Dec. 216 ; Commonwealth v. Meriam, 7 Mass. 168 ; 1 Whart. Cr. L., § 53 ; see also Criminal Law, vol. 2, Field's Lawyers' Briefs, § 277. ^51. Insane delusions and irresistible impulses. We have before referred to the answers of the English judges to questions propounded by the House of Lords on the subject of insane delu- INSANITY AND ITS LEGAL RELATIONS. 99 sion ill its relations to the criminal law : See Criminal Law, vol. 2, Field's Lawyers' Briefs, § 272 ; Reg. /.•. McNaughten, 10 C. k F. (Eng.) 210. The questions were suggested by the case of McNaughten, who shot Mr. Drummond in London in 1843, and was tried therefor and ac- quitted on the ground of insane delusion. The questions propounded were as follows : "1. What is the law respecting alleged crimes committed by persons affected with insane delu- sion in respect to one or more particular persons, as, for instance, where, at the time of the com- mission of the alleged crime, the accused knew he was acting contrary to law, but did the act complained of with a view, under the influence of insane delusion, of redressing' or reveno'ino* some supposed grievance or injiny^, or of [)rodu('- iiig some pul^lic benefit ? " 2. If a person, under insane delusion as to existing facts commits an offense in consequeftce thereof, is he therel)y excused ? " To these questions fifteen English judges re- s[)()nded as follows : "1. The jury ought to be told in all cases that every man is presumed to be sane, and to possess 100 field's medico-legal guide. a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction ; and that to establish a defense on the ground of insanity it must be clearly proved that at the time of committing the act the party accused was hiborini^ under such a defect of rea- son, from disease of the mind, as not to know the nature or quality of the act he was doing, or, if he did know it, that he did not know he was doino^ what was wrono-, " 2. Assuming that your hardships' inquiries are confined to those persons who hibor under such partial delusions only, and are not in other respects insane, we are of opinion that, notwith. standing the party did the act complained of with a view, under the influence of the delusion, of redressing or revenging some supposed grievance or injury, or of producing some public benefit, he is nevertheless punishable according to the nature of the crime committed, if he knew at the time of committing such crime that he was acting contrary to law, by which expressions we understand your lordships to mean the law of the land. " 3. The answer to this (the 2d) question must INSANITY AND ITS LEGAL RELATIONS. 101 of course depend upon the nature of the delu- sion : but milking the same assumption as we did before, that he labors under such partial delusion only, and is not in other respects insane, we think he must be considered in the sanie situa- tion as to responsibility as if the facts with respect to which the delusion exists were real. For example, if, under the influence of his delu- sion, he supposes another man to be in the act of attempting to take his life, and he kills that man, as he supposes in self-defense, he would be exempt from punishment. If his delusion was that the deceased had inflicted serious injury to his character or fortune, and he killed him in revenge for such supposed injury, he would be liable to punishment." These conclusions of the fifteen judges have received some criticism, and in the light of more recent observation and experience their sound- ness in various respects has been questioned, if not destroyed. They, it has been said, take no note of irresistible impulses of the insane to do wrongful acts, and hold a partially insane person as responsible as a sane one. Of the principles thus laid down it has been 102 field's medico-legal guide. observed that they are open to the following objections : " 1. To make delusion the sole test of insanity in criminal cases, and especially in cases of homi- cide, is at complete variance with the well ascer- tained facts of impnlsive insanity, in which the existence of delusion can be distinctively nega- tived, as well as in many forms of emotional in- sanit}^ in which delusions form no necessary feature of the disease. " 2. On the other hand, the test of a knowl- edge of right and wrong is condemned by the notorious fact that a great many insane patients, and even imbeciles, have a clear conception of the two ideas. Indeed, the whole management of asylums presupposes a knowledge of right and wrong on the part of inmates. " 3. Nothino' is more illoo-ical than the state- inent of the law in reference to the partially in- sane. It amounts to nothing less than an abso- lute deni.al of the significance of a state of things universally acknowledged to constitute a valid test of insanity. The error has arisen from con- foundino' single and harmless delusions, such as occur ui most cases of hypochondriasis, with INSANITY AND ITS LEGAL RELATIONS, 103 those that affect the insane, commonly so called. Such siuole delusions are doubtless more com- patible with self- restraint ; but they are of rare occurrence, and do not often figure in courts of law, and harmless as they may seem to be, . . . we cannot safely assume that they may not take a dano-erous turn. That a man should believe that he is the Crystal Palace, may seem a very harmless fancy ; but if he grew angry with the government for removing it, to assassinate some member of the government, would be far less illogical than the fancy itself. The partial delu- sions of the insane are much more common, bat when they are closely examined, they are found to be the offspring and natural expression of some one excited feeling or passion, which, hav- ing had force enoufrh to create illusions of the senses and delusions of the mind, may be ex- pected to give rise to insane impulses of great power ; to which we may add that a multitude of delusions implies mental confusion and excite- ment in proportion, and that in many instances these conditions are heightened by the co-exist- ence with these delusions of the mind, of illu- sions of the senses, and illusive transformations 104 field's medico-legal guide. of real objects and persons. The excited feel- ings or passions which, having first destroyed the integrity of the senses and mental faculties, proceed to instigate acts of violence and cruelty, are religious excitement or despondency, jeal- ousy, domestic anxieties exaggerated into fear of starvation, and discontent transformed into an insane belief in persecution. Now the .acts of violence Avhich ultimately flow from these ex- cited feelings or passions, the true source of de- lusion, ought to be judged by the same rules that apply to the delusions themselves. It is reasonable and loo-ical to infer that the acts are as little subject to restraint as the delusions to correction. What right have we to assume that the man who cannot control his thoughts is mas- ter of his actions ? " Guy & F. on Forensic Med. 220. § 52. Common sources and manifestations of insane de- lusions. These distino^uished authors refer to four sources of homicidal acts by those of unsound mind, as follows : "1. Maniacs under the influ- ence of religious excitement or despondency are subject to illusions and delusions of a very sin- INSANITY AND ITS LEGAL RELATIONS. 105 gular kind. They transform the persons with whom they are associated into supernatural be- ings, endowed with authority or power not to be questioned or resisted, and they convert com- mon and familiar sounds into the articulate lan- guage of temptation or command. One reli- gious maniac, therefore, kills a relative or a keeper,» imagining him to be a fiend ; another thinks that he has a direct commission from the Deity to fulfill some mission of wrath or extir- pation. In case of religious mania, then, we can never safely affirm that the homicidal act was not the consequence of a command which the maniac would deem it impious to resist, or a de- lusion which places him in his own sincere con- viction beyond and above the operation of human laws. The maniac who believes himself to be God, Christ or the Holy Ghost, would from the very nature of the case deem himself irresponsible. " 2. Of homicidal acts instigated by jealousy, shaping itself into a distinct delusion, it will suffice to observe that they are such acts as, if committed by sane men, on the evidence of their senses, would be punished as manslaughter, and not as murder. 106 riELD^S MEDICO-LEGAL GUIDE. "3. Of fathers Jiiicl mothers who kill their children under the pressure of domestic anxiety cidminatino* in an insane dread of starvation, it may be observed that they are generally remark- able for domestic virtue and devoted attachment to their victims, and that between them and ordinary murderers there is no single point of resemblance. "4. Discontent, transformed into an insane belief in persecution, presents greater difficulties. The case is generally put in a form which seems to preclude a satisfactory answer. A maniac thinks he has been injured by another and kills him. If the injury were real, a sane murderer would be responsible, and so, it is contended, ou2:ht the madman to be. This curiously illoo-- ical argument ignores the simple fact that the two cases have nothing in common but the act itself. The imaginary offense has imaginary ac- companiments, and every thought connected with it is one of confusion. To suppose that a mind wdiich can imagine an impossible offense is sound in all other respects, is to outrage common sense, and set at nought the experience of all who have knowledge of the insane ; for Avith one consent INSANITY AND ITS LECIAL RELATIONS. 107 they repudiate the notion of a mind suljjeet to such fi dekision as being sound, and free to act as it will, beyond the sphere of its influence. The more closely the victim of this painful de- lusion is observed, the more extensive is found to be the disorder of his intellect. Those acts which are not directly prompted Ijy his delusion are more strange, and his passions more excita- ble than those of other men. The theory of a single insane idea, springing up in a mind other- wise sound, havino; no efi:ect on the remainino^ faculties, and simply prompting an action which, once suggested, is carried out with the same complete consciousness of its real nature as exists in the mind of the sane man actino* under the suggestion of a corresponding reality, is too ab- surd to be for a moment entertained. Even in this case, then, the question of responsibility cannot be decided by the simple test of a knowl- ed«;'e of rii^ht and wrous^. But there is another case allied to the one now under consideration Avhich presents still greater difficulties. A man receives a real injury, and avenges himself; but it is alleged that he was not of sound mind when he connnitted the act. The unsoundness of his 108 field's medico-legal guide. mind is admitted, but he is deemed responsible because his act was instigated by the common motive of revenge. The obvious answer is, that the real injury has been by his insane mind mag- nified to undue importance, and then acted upon just as if it had been altogether imaginary ; and that he is therefore neither more nor less respon- sible for his act than the man whose motive was from the very first in the nature of a delusion. In this case, too, an inquiry into the state of mind, extending much beyond the legal test, will be necessary, and cannot be refused ; and this once f^ranted, must result in showino^ the insuf- ficiency of the test. Even in those cases where the criminal act cannot be traced to any delusion of which it is the legitimate ofispring, but it is simply alleged in defense that the party is of unsound mind, the ver}^ fact of the unsoundness becomes an irresistible plea in mitigation. It would be strange indeed if the case of the maniac under the accusation of crime is the only one in which such a plea is ignored and refused. . . . We cannot, therefore, too strongly condemn the credulity which credits a mind already occupied by delusions with an otherwise efficient state of INSANITY AND ITS LEGAL RELATIONS. 109 faculties ; and we contend that it is in the high- est degree improbable that a mind so possessed can, be^^ond the sphere of its delusions, think, feel and act with clearness, force and freedom from the same. " Some writers, under a strong sense of the failure of the leo-al test of knowleds^e of riirlit and wrong, have sought to set up in its place the power of control or restraint. The test has been thus transferred from the intellect to the will — from the knowledge of right to the power of acting aright. But this is a mere shifting of the difficulty ; for it is obviously not more easy to measure the exact amount of a man's self- restraint than to orauo'e his abstract knowledsre of right and wrong, lawful and unlawful : " Gruy & Fer. Forensic Med. (5th ed.) 121-124. See also Quain's Die. of Med. (Am. ed.), sub. In- sanity, topics Impulsive Insanity, Moral Insanity, pp. 725, 727. We have copied the able and philosophical views of these authors to show the inaccuracy of the test of criminal responsibility laid down by the fifteen learned English judges in response to the questions propounded l)y the English Lords. 110 field's medico-legal guide. § 53. Test of capacity required for criminal responsi- bility. It is perhaps difficult to fiiniish any absolute test ill such cases ; but it may be said that in order to make a ])ersoii responsible for his acts as criminal, he must possess enough intelligence and capacity to have a criminal intent and pur- pose : See Criminal Law, vol. 2, Field's L. B., § 272 ; Com. v. Mosler, 4 Pa. St. 261 ; Com. v. Rogers, 7 Met. (Mass.) 500 ; Sanchez v. People, 22 N. Y. 147 ; Freeman v. People, 4 Denio, 9 ; Bovard v. State, 30 Miss. 600 ; State v. Neeley , 20 id. 199 : Pond v. People, 8 Mich. 150 ; Willis v. People, 32 N. Y. 715. Perhaps the opinion of the court in Bovard v. State contains as clear an ex- position of the modern doctrine on this subject as can be found in the adjudications in this country. It was observed in this case that "in order to con- stitute a crime a person must have intelligence and capacity enough to have a criminal intent and purpose. If his reason and mental powers are either so deficient that he has no will, no con- science or controlling mental pov»^er ; or if, through the overwhelming power of mental disease, his intellectual power is for the time obliterated, he is not a responsible moral agent, and is not pun- INSANITY AND ITS LEGAL RELATIONS. Ill ishablc for criminal acts. But these are extremes easily distiiigviished and not to be mistaken. The difficulty lies between these extremes and cases of partial insanity, where the mind may l)e clouded and weakened, but not incapable of remem])er- ing, reasoning and judging, or so perverted by insane delusion as to act under false impressions and influence. In these cases the rule of law, as we understand it, is this : A man is not to be excused from responsibility if he has capacity and reason sufficient to enable him to distinofuish between right and wrong as to the particular act he is then doing, — a knowledge and consciousness that the act he is doing is wrong and criminal, and will subject him to punishment. In order to l)e responsible he must have sufficient power of memory to recollect the relation in which he stands to others, and in which others stand to him, and that the act he is doing is contrary to the plain dictates of justice and right, injurious to others, and a violation of the dictates of dut}^ On the contrary, although he may be laboring' under partial insanity, if he still understands the nature and character of the act and its conse- quences, if he has a knowledge that it is wrong 112 field's medico-legal guide. and criminal, and a mental power sufficient to apply that knowledge to his own case, and to know that if he does the act he will do wrong and receive punishment, such partial insanity is not sufficient to exempt him from responsibility for criminal acts : " See also Quain's Die. Med. (Am. ed.), topic, Legal Insanity, p. 726 et seq. § 54. Impulsive mania, or uncontrollable impulse. Of this form of mania Messrs. Guy & Ferrer observe: "The acts committed under its influ- ence have most all of the following characters : They are without discoverable motive, or in op- position to all knovvn motives. A man kills his wife, to whom he is tenderly attached, a brother his sister, a mother her infant, or the victim is one whom he never saw before, and against whom it is impossible that he can bear malice. Nay, the victim of this blind passion may be a horse or other animal incapable of offense. After the commission of the act he does not seek to escape ; he often publishes what he has done ; does not conceal the body, but openly exposes it ; delivers himself up to justice ; describes the state of mind which led to the act, and either INSANITY AND ITS LEGAL RELATIONS. 113 remains stupid and indifferent or is overwhelmed with remorse. He has no accomplices, has made DO preparations, and takes nothing from his vic- tim. Sometimes he has previously spoken of his strong temptation and begged to be prevented from doing mischief. These homicidal acts are generally preceded by a striking change of con- duct and character, and, on inquiry, the accused is often found to have an hereditary tendency to insanit}^, to be subject to fits, to have attempted suicide, to have expressed a wish for death, or to be executed as a criminal. . . . Imbeciles are peculiarly liable, as we should suppose they would be, to these wild impulses, and it is easy to understand how the instinct of destruction is sometimes associated with delusions, the criminal act itself beinoj the result of strono^ excitement of the homicidal passion, while the delusion sug- gests the motive. To this class probably belong those cases of wholesale murder in which the father of a family destroys his wife and children to prevent them falling the victims of starvation, and then puts an end to his ow^n life ; the idea that such an evil threatens them being insane, no less than the impulse which prompts such a mode 114 field's MEDICO-LEGAL GUIDE. of escape. Some imbeciles, who are addicted to petty theft, rob their victims ; l)ut they make so childish a use of that which they have stolen as to afford fresh proof of their inherent weakness of mind. Violent homicidal impulses are also very common in the epileptic — some- times preceding, sometimes following the fits, and sometimes taking their place : " Guy k Far- rer on For. Med. (5th ed.) 228, 229 ; Whart. & S. Med. Jur. 159, n. § 55. Defense on the ground of. To constitute a defense on the ground of im- pulsive mania or irresistible impulse, it must exist to such an extent and with such violence, as to render it impossible for the party to do otherwise than to submit to it ; and a mere tem- poraiy and violent passion will not exempt the person from responsibility nor constitute a de- fense for wrongful acts : Reg. v. Barton, 2 F. & F. (Eng.) 762 ; Reg. v. Townley, 3 F. & F. 839; Scott V. Com. 4 Met. (Ky.) 227 ; Smith v. Com. 1 Duval (Ky.), 224 ; Com. v. Mosler, 4 Pa. St.^ 266 ; Hopps v. State, 31 111. 385 5 State v. Fel- ter, 25 la. 67; Stevens v. State, 31 Ind. 486: INSANITY AND ITS LEGAL RELATIONS. 115 Sanchez v. People, 22 N. Y. 147 ; Wbiirt. & S. Med. Jur., §§ 144, 162, 531, 537; Reg. v. Mc- Naughteii, 10 CI. & Fiii. (Eiig.) 130 ; Willis v. People, 5 Park. C. R. (N. Y.j 620 ; State v. Spencer, 21 N. J. L. 196 ; see also 2 Field's L. B., § 273. § 56. In case of drunkenness ; legal responsibility. Alcoholic drinks will produce intoxication and drunkenness of various degrees, the extreme of mental unsoundness in such cases reaching [i condition of incoherent utterances and uncon- sciousness. In this condition the contracts of the victims would be void or voidable, and this would apply to all gifts by will or otherwise : See ante, § 43. And on general principles they should be held irresponsible criminally for their acts. But it seems, in consideration of public policy, the law, as it is now recognized and administered by the courts, is otherwise, and drunkenness, voluntary or involuntary, is not an excuse for an act of a general criminal nature, done under its influence : People v. Robinson, 2 Park. G. R. (N. Y.) 649 : Hester v. State, 17 Ga. 146 ; State v. Harlowe, 21 Miss. 446. 116 field's medico-legal guide. The common law seldom excuses or relieves the cliTuikard fVom responsibility for his acts, either in civil or criminal cases. A person iion compos mentis, or permanently or temporarily of unsound mind, cannot make a valid contract or perform a valid civil act. A temporary in- sanity or intoxication, "produced by the exces- sive and voluntary use of alcoholic liquors, may be a good ground for avoiding a contract en- tered into while in that state ; and, generally, when one enters into a contract while deprived of his reason, he may repudiate it when he re- covers his reason : " See Contracts, vol. 2, Field's L. B., § 80 ; Gore v, Gibson, 13 M. k W. (Eng.) 623 ; Cook v. Clayworth, 18 Ves. (Eng.) 15 ; Mitchell v. Kingman, 5 Pick. (Mass.) 431 ; Arnold v. Richmond Iron Works, 1 Gray (Mass.), 434 ; Gant v. Thompson, 4 Conn. 303 ; Lang V. Whidden, 2 N. H. 435 ; see also Shelf, on Lunacy, 274, 304. But this rule is not universal, as where one makes a note in that condition, it would be valid in the hands of an innocent holder ; and the contract of a drunken man is not void, but void- able : State Bank v. McCoy, 69 Pa. St. 201 ; INSANITY AND ITS LEGAL RELATIONS. 117 8 Am. Eep. 246 ; 1 Ames' Cas. on B, & N. 558. But in criminal cases a more risforous rule prevails, and drunkenness, whatever the degree, will not excuse a criminal act. The doctrine of the common law was stated by Blackstone, as follows: " As to artificial and contracted mad- ness or intoxication, which, depriving men of their reason, puts them in a temporary frenzy, our law looks upon this as an aggravation of the offense, rather than an excuse for any criminal misbehavior. The law, considering how easy it is to counterfeit this excuse, and how weak an excuse it is, though real, will not suffer any man thus to privilege one crime with another :" 4 Bl Com. 26 ; see also R. v. Meakin, 7 C. & P (Eng.) 297 ; E. v. Thomas, 7 C. & T. 820 Swan V. People, 4 Park. C. R. (N. Y.) 649 Kenny v. People, 31 N. Y. ^ 330 ; Boswell v. Com., 20 Grat. (Va.) 860; Choicer. State, 31 Ga. 424 ; Flanigan ^. People, 86 N. Y. 554 ; Criminal Law, vol. 2, § 274 ; Ray's Med. Jur. 514 ; 3 Par. & Fonbl. Med. Jur. 39. The soundness of this old doctrine may well be questioned, and the reasons for it might as 118 field's medico-legal guide. well be applied in other cases ; for it is a matter of common unclerstandino- amono' tlie enlio-ht- ened members of the medical profession that other habits and practices, as well as the intem- perate use of spirituous liquors, may produce mania or unsoundness of mind, and the person may pursue these habits well knowing this prob- able result, and would be exempt from criminal responsibility for acts done while in such un- sound condition of mind : Allis. Princ. C. L. (Scot.) 654; 22 Am. Jur. 290: a7i(e, § 44. § 57. Drunkenness as a mitigation of criminal acts. Notwithstanding drunkenness will not excuse criminal acts, still in case of the trial of a per- son for murder the present doctrine seems to be that the intoxicated condition of the defendant at the time of the taking of the life may be proved to show either a want of intent to murder or of premeditation, and to reduce the oifense from murder to some inferior degTce of homicide: Keg. V. Cruibe, 8 C. & P. (Eng.f 546 ; E. v. Meakin, 7 C. & P. (Eng.) 297 ; ^.v. Thomas, sujjra ; Peo- ple V. Robinson, 1 Park. C. R. (N. Y.) 619; Peo- ple V. Hammill, 2 Park. C. R. 223 ; Lonergan v. INSANITY AND ITS LEGAL RELATIONS. 119 People, 6 Park. C. R. 209; 50 Barb. 266 ; People V. Rogers, 18 N. Y. 9 ; Kenny v. People, 31 N. Y. 330 ; Choice v. State, 31 Ga. 424 ; Humph- reys V. State, 45 Ga. 190 ; RafFerty v. People, QQ 111. 118 ; Mclntyre v. People, 38 111. 515 ; Kee- nan v. Com., 44 Pa. St. 55 ; Shannahan v. Com., 8 Bush (Ky.), 463 ; Dawson v. State, 16 Incl. 428 ; State v. Harlow, 21 Mo. 446. But want of intent or premeditation will not be conclusively presumed from any degree of in- toxication at the time of the killing, as this may have existed before the intoxication, and the latter may have been induced as a part of a plan or purpose to accomplish the felonious act with im- punity : Id.; see also O'Brien v. People, 48 Barb. (N. Y.) 274. Intoxication in such cases is a mere circumstance to be considered for the purpose of mitii^^ation : Whart. on Hom. 371 ; Com. v. Haw- kins, 3 Gray (Mass.), 463 ; Com. v. French, Thatcher's Cr. Cas. (Mass.) 163 ; Pirtie v. State, 9 Humph. (Tenn.) 663 ; Swan v. State, 4 id. 136 ; State V. Bullock, 13 Ala. 413 ; Pigman v. State, 14 Ohio, 555. The old and modern doctrine on this subject is well stated in the opinion of the court in the case 120 field's medico-legal guide. last cited, where it is said : " Drunkenness is no excuse for crime ; vet in that class of crimes and offenses which depend upon guilty knowledge, or the coolness and deliberation with which they are perpetrated, to consummate their commission or ^x the degree of guilt, it should be admitted to the consideration of the jury. If the act is of that nature that the law requires it should be done with guilty knowledge, or the degree of guilt depends upon the calm and deliberate state of mind at the time of the commission of the act, it is proper to show any state or sent ; and, secondly, that some if not all of the symptoms named may be simulated by menstruation. Mr. Tidy, in his valuable work on Legal Medi- cine, in presenting the signs of abortion, observes: "The signs of abortion in the living are commonly stated as follows : ' * A relaxed condition of the vulva and passages, patulousness of the os uteri, the presence of a lochial secretion in the earlier stao^es, and a white mucous secretion at a later period, accompanied by that characteristic acrid smell common to puerperal women. The distension of the breasts, yielding a flow of milk on pressure, with a full- ness and knotty feeling for a short time after 170 field's medico-legal guide. aborting, are also observable. A general ansemic appearance from loss of blood, with sunken eyes, will be noticed. A peculiar excitement of the pulse, with dryness of skin, is also invariably present. A speculum may be needed to see the lacerations of the os uteri, but as a rule they may be felt by the finger. It will, of course, be of primary importance to remark on all the signs of violence to uterus or vagina ; also whether there be an excessive inflammatory condition of the genital organs. Further, all marks on the body of a female which may indicate general violence for the purpose of effecting the ol^ject in view, should be carefully recorded. " If an abortion occurs naturally at an early period of utero-gestation, the signs usually found may be very slight or even altogether absent. After the third month the insertion of the placenta may be detected by a rough place on the inner uterine wall. In making sl ^ost mortem care is necessary in removing the uterus and laying it open, as if there be a wound it may be suggested that it was made during the post inortem. The speci- men itself should refute the charge. Punctures, lacerations and incisions in the uterus and con- ABORTION. 171 tiguous organs must be specially looked for. These, particularly the punctures, are often multiple. 'He stabbed me three or four times,' is a common remark of the victim.'' § 85. Signs on examination of the female after death. It is usually not difficult to distinguish wounds made before from those made after death, because the former will have cicatrized surfaces or be coated with lymph, pus or blood. It is not always possible, but generally it is easy, to distinguish the results of violence from natural or spontaneous ruptures: Barnes' Obst. Oper.(2d ed.), §§ 320-375. Peritonitis, when resulting from violence, is gener- ally more localized than when it is, so to speak, spontaneous in puerperal cases at term. Note should especially be taken in all cases of abortion whether there are signs of irritant poisoning in the stomach and intestines or any inflammation of the bladder and kidneys resulting from the administration of abortive drugs. Note further any general marks of violence, especially on the ab- domen; also the general character of the viscera, i. e., whether they indicate loss of blood during life, such as commonly results from abortion 172 field's medico-legal guide. If a woman die during the menstrual period a thickened state of the uterus, a swollen condi- tion of its mucous lining and a generally increased hyperaemic appearance are invariably found. And it is well to bear this in mind lest we mis- take the appearance residting from menstruation for that produced by abortion : Id. § 86. Examination of the foetus ; strains, etc. If the foetus be found, a very careful examina- tion should be instituted to determine, 1st, its age ; 2d, whether it was born alive ; and, 3d, if so, to what cause its death may probably be attributed. Further, the foetus must be most carefully examined for punctures or wounds, and every attempt made to form an opinion whether the injuries, if such be found, were caused dur- ing life or after death. This latter point is es- sential, not so much to prove that the wound was sufficient to cause death as to negative the certain contention on the part of the defense that the injury was caused after birth : Id. § 87. Infanticide ; distinction between, and foeticide. Infanticide is the murder of a new-born in- fant ; whereas miscarriage, abortion or foeticide ABORTION. * 173 is the destruction of life of the foetus in utero. To constitute the offense of murder, the child whose life is destroyed must be wholly born. At common law the killing of an unborn child or foetus, though quick, was only manslaughter, and this is generally the case under statutes ; but the crime of infanticide, or the killing of a child after it is fully born, is murder both at common law and under statutes. In criminal cases the question is sometimes presented whether the child was killed before or after birth, and whether there was any delivery, premature or otherwise. The signs and symptoms, in such cases, we have already stated. But such a case would usually call for expert testimony, where the pregnancy of the woman, and delivery, prema- ture and criminal, or otherwise, is proved or ad. mitted, and the question presented is, whether the child was killed before or after delivery. This question is sometimes of great interest to both the legal and medical professions. It may be observed that to constitute infanti- cide murder, the child must be born, and "must have been a reasonable being alive," and a child 174 field's medico-legal guide. is not born until the whole body be detached from that of the mother. R. v. Poulton, 5 C. & P. (Eng.) 329 ; R. v. Enoch, 5 C. & P. 539 ; R. V. Crutchley, 7 C. & P. 814. If, on examination by an expert, it appears that the deceased child has breathed, this is not a decisive proof that it was born alive, as it may have breathed before the delivery was complete ; nor is it necessary that the child should have breathed to make the idlling murder, as it is not an uncommon thing for a child to be wholly born and alive some time before breathing : 4 Field's Lawyers' Briefs, §§ 123, 124 ; R. v, Sellis, 7 C. & P. (Eng.) 850; R. v. Brain, 6 C. & P. 349; •R. V. Trilloe, 1 C. & M. (Eng.) 650. And breathing may commence before circulation, as where it commences after birth, but before the umbilical cord is severed : Id. § 88. Evidence of life subsequent to birth of child. In the absence of direct proof, evidence of the existence of life subsequent to birth may ueces. sarily rest, as we have seen, upon the signs and symptoms furnished by the supposed mother, if living, or even dead, and u^ow expert testimony ABORTION. 175 based upon the examination of the identified child or foetus, and especially if it be found in a suitable state of preservation, to fnrnish evidence for an opinion on the subject. In such a case the expert testimony must de- pend upon certain organic facts relating to the ^ foetus or child, and to the circulatory and respir- atory systems. In respect to the circulatory system of the child it may be observed : 1. That the foetal blood usuallj^ difiers from that of the fully born child in this, that the blood of the former is wholly dark like venous blood, desti- tute of fibrous matter, and forming coagula much less firm and solid than that which has been sub- jected to the process of respiration. So the coloring matter is darker, and contains no phos- phoric acid, and its proportion of serum and red globules is comparatively small. The circulation of the blood anterior to birth' is usually diflTerent from that subsequent to that event ; the former being, by means of the foetal openings, the fora- men ovale^ the ductus arteriosus^ and the ductus venosus, enabled to perform its circuit without sending the entire mass of the blood to the lungs for the purpose of oxidization. But 176 field's medico-legal guide. this test would not perhaps be very coiichisive in case of breathing before an entire and complete delivery : See Yerrier on Obstet. (1st Am. from 4th- French ed.) 86, 87 ; Dean's Med. Jnr. 142 et seq. If the extra-uterhie life commences, the ,donble circulation is established in all cases, and the ante-natal openings above referred to gradu- ally close, so that their closure is considered very good, if not clear, evidence of life subsequent to birth. 2. After delivery, the child, if alive, is in ve- 7-11771 natu7rt, and " a reasonable being alive," in the sense of law, so as to constitute its willful and premeditated killing, "with malice afore- thought," the crime of murder. On this subject Baron Park once observed: -' The child might breathe before it was born, but its having breathed is not sufficiently life to make the kill- in^r of the child .murder ; there must have been an independent circulation of the child, or the child cannot be considered alive for this purpose:" E. V. Enoch, 5 C. & P. (Eng.) 539. 3. Whether the child was born alive or dead may be determined also from the difference in the distribution of the blood in the different ABORTION, 177 organs of the body. The two organs in which this, difference is most perceptible are the liver and lungs. The circulation of the whole mass of the blood through the lungs distends and fills them with blood, so that their relative weio^ht will be nearly double, and any incision into them will be followed by a free effusion : See 1 Beck's Med. Jur. 478 et seq. ; Dean's Med. Jur. 142 et seq. But if the child may breathe before the de- livery is complete, this would not furnish a com- plete test. " When the child escapes from the womb," observes Dr. Verrier, " or just before the end of labor, the placental circulation diminishes and ceases completely. The defective oxygenation that results induces a congested state of the brain that excites it and induces contraction of the muscles of inspiration. The air enters and dilates the lungs, the child cries, and life is fully entered upon :" Verrier's Manual of Obstet. (1st Am. ed. from the 4th French ed.) 87. At this period the crime of murder may be committed upon the child, but previous to this the willful destruction of the foetus, especially if 178 FIELD'S MEDICO-LEGAL GUIDE. quick, would be foeticide, and the oliense man- slaughter : See ante, § 87 ; R. i\ Poulton, .5 C. & P. (Eng.) 329. But, as we have before observed, the weight of authority favors the conclusion that respiration of the child fully born is not essential to con- stitute the destruction of its life murder ; and resj^iration before a fully completed birth of it would not furnish the condition which would raise the willful killing of it from manslaughter to murder : Ante, § 87 ; ^. v. Crutch ley, 7 C. & P. (Eng.) 814 ; E. v. Sellis, 7 C. & P. (Eog.) 850 ; R. V, Wright, 9 C & P. 754 ; R. v. Brain, 6 C. & P. 349. Evidence of life after birth, as derived from the respiratory system of the child, may be sum- marized as follows : 1. From the thorax; its size, capacity, and arch are increased by respiration. 2. From the lungs, which are increased in size and volume, and projected forward by respi- ration. So by respiration they become rounded and obtuse, of a pinkish red hue, and their density is inversely as their volume. Lungs that have not respired are specifically heavier than ABORTION. 179 water, and if placed within it will sink to the bottonic If they have respired, their increase in volume and decrease in density render them specifically lighter than water, and when placed within it will float. It is observed by Dr. Dean that there are several objections to this test, and if it be conceded that the foetus or child may breathe before it is fully born, it w^ould not be conclusive on the question whether the child was or was not fully born alive ; but it may be en- titled to its due weight in the settlement of the question : Dean's Med. Jur. 154 ; 1 Beck's Med. Jur. 459 ; ante, § 88. 3. From the state of the diaphragm, as the act of expanding the lungs enlarges and arches the thorax, and, by necessary consequence, the diaphragm descends, whereas prior to respira- tion it is found high up in the thorax : Id. § 89. Modes of destroying the life of a child after birth. The criminal modes commonly resorted to for the purpose of destroying the young child are ; suff'ocation ; drowning ; cold and exposure ; star- vation ; wounds, fractures, and injuries of various kinds ; the introduction of sharp-pointed inslru- 180 field's medico-legal guide. ments in different parts of the body ; luxation and fracture of the neck ; strangulation ; poison- ing ; intentional neglect to tie the umbilical cord ; and causing the child to inhale air deprived of oxygen, or gases positively deleterious : See Beck's Med. Jur. 509 ei seq. ; Ryan's Med. Jur. 137 ; Dean's Med. Jur. 179 et seq. § 90. Summary of matters to be observed on examina- tion of the body of the woman to determine the question of abortion. The following directions are suggested for con- sideration and observance on examination of the woman, if living or dead, for the purpose of deter- mining the question of abortion, whether innocent or criminal. Where the woman is alive : 1. Temperature. 2. As to the woman's predisposition to abort, and the period at which the abortion had com- monly occurred. 3. General state of health. Note the exist- ence of leucorrhoea, excessive menstruations, syphilis, asthma, malignant diseases, uterine dis- ease, etc. ABORTION. 181 4. Whether the woman is well or ill-formed. Note pelvic malformations, effects of tight lac- ing, etc. 5. Whether any cause can be assigned to ac- count for the abortion ; for example, violent coughing, blood-letting, straining at stool, vio- lent exercise, undue excitement, septic poison- ing, violence, administration of medicines, etc. 6. All injuries to the genital organs. If any exist, consider whether they might be self-in- flicted. Examination of the body of the woman if dead. 1. Be careful not to mistake the effects of menstruation for those produced by abortion. 2. Avoid injuring the parts by the knife, or otherwise, during the autopsy. 3. Consider the possibility of injuries being self-inflicted. 4. Note the existence of any marks of vio- lence on the abdomen or other parts. 5. Observe the condition of the genital or- gans, nothig all inflammations, rents, tears, per- forations, etc. If the uterus is injured it should be preserved. Note also, 182 field's medico-legal guide. 1. The condition of the passage, whether re- hixecl or otherwise. 2. The condition of the os uteri, whether virginal or gaping. 3. Vaginal secretions, and if present, their character. 4. The general appearance of the breasts, presence of milk, etc. 5. Whether there be any signs of irritant poisoning in the stomach, or inflammation of the bladder, kidneys, rectum, etc. ; the contents of the stomach, if necessary, to be preserved. 6. Whether the viscera generally indicate loss of blood durins: life. Examination of the sujiposed product of con- ception. 1. The nature of the supposed product of conception. 2. Consider whether there is evidence of a diseased condition of the membranes or the pla- centa ; that is, the structural degeneration. 3. If a foetus be found, determine whether it was born alive, its probable age, and the cause of its death. 4. Determine whether, if there be wounds or ABORTION. 183 other injuries, they were inflicted during life or after death. 5. Examine all drugs, instruments, etc. The crime of abortion may be committed in any stage of pregnancy : State v. Slagle, 83 N. C. 630. § 91. Indictments ; evidence. Under the provisions of the New York Penal Code the defendant V. was tried and convicted upon an indictment charging that he together with one P. used instruments upon the body of one W. to procure her miscarriage. The opera- tion was performed by P. in his office, and it was not claimed that Y. took any part in it, or was present when it was performed. He offered no testimony to show that it was not performed, his position being that he neither took any part in the operation nor advised it, nor had anything to do v/ith it. The only direct testimony showing that he had advised it was that of the woman upon- whom it was performed, who testified that the operation was performed by P. at his office, by use of an instrument, and that she submitted to it upon the advice and procurement of the de. 184 field's medico-legal guide. fendaiit. A police officer testified that about a month after the crime was alleged to have been committed he found in the office of P. instru- ments which were shown to be suitable for the purpose of procuring an abortion. The defend- ant's counsel requested the court to charge the jury, in substance, that W. was an accomplice if the crime was committed, and that the findinsr of the tools in P.'s office was not any evidence of corroboration of W. on the question of the com- mitting of an abortion, as against V. This the the court refused to do, and the appellate court sustained this decision. The trial court held that to justify y.'s conviction only two things, under the indictment, were necessary to be established : 1. That an abortion had been committed ; 2» That the defendant had induced the woman to submit to it. The court further held that the finding of the instruments tended to corroborate the vroman's testimony as to the first, though not as to the second of those facts, and was therefore admissible ; that W. could not be indicted with the defendant for the offense charged, and that she was not technically an '' accomplice'' within the meaning of the statute which provides that ABORTION. 185 " a conviction cannot be had upon the testimony of an accomplice, unless he be corroborated by such other evidence as tends to connect the de- fendant with the commission of the crime." And the appellate court held there was no error in this : People v. Yedder, 34 Hun (N. Y.), 280. See also Com. v. Blair, 126 Mass. 40; Com. v. Adams, 127 Mass. 15; Watson v. State, 9 Tex. App. 237. The statutes of New York make it a crime to administer " to a woman, whether pregnant or not," any medicine, etc., " with intent thereby to procure the miscarnage of a woman," etc. Under this statute it has been held sufficient to charofe in the indictment that the ofFense was committed upon "a woman with child : " Eckhardtv. People, 83 N. Y. 462 ; 22 Hun, 525 ; 38 Am. Rep. The Penal Code of Texas makes it a crime to administer any drug or medicine to pregnant women for the purpose of producing an abortion : Tex. Pen. Code, art. 536. Under this statute it has been held that the indictment for the offense need not allege what the drug was : Watson v. State, 9 Tex. App. 237. Under the provisions of the statute in Iowa on 186 field's medico-legal guide. this sul^ject it is a crime to administer any drug, etc., with intent to procure an abortion : Iowa Code, § 3864. Under this provision it has been held that the offense is complete if there be a criminal intent, although the attempt be made before the woman is quick with child, and although the substance used would not produce miscarriage : State v. Fitzgerald, 49 la. 260. So under the statutes of Massachusetts, makins: it a crime for attempting to procure the mis- carriage of a woman, it has been held that it is not necessary to the maintenance of an indict- ment therefor that it be shown that she was in fact pregnant : Com. v. Taylor, 132 Mass. 261. Under the statutes of Indiana it is a crime to administer any drug, etc., with intent to procure the miscarriage of a pregnant woman, where it is not necessary in order to preserve her life : 2 lud. Eev. St. 471, § 36 (1876). An indictment under this provision, averring that the defendant unlawfully and willfully employed and used in and upon the body and womb of a pregnant woman a certain instrument called a catheter, with intent to procure a miscarriage, it not being necessary to cause such miscarriage in order to ABORTION. 187 preserve the life of the woman, was held suffi- cient : State v. Sherwood, 75 Lid. 15. In a recent case in Illinois it was held that an indictment for an attempt to procure an abortion, which alleged the insertion of " a certain instru- ment," not describing it, " into the private parts," etc., without adding "and womb," was suffi- ciently definite : Baker v. People, 105 111. 452. Under the statute of New Jersey, to constitute the crime of attempting to procure a miscar- riage, the thing administered or prescribed to pro- cure it must be to a woman pregnant with child, and it must be noxious in its nature : New Jer- sey Crimes Act, § 75. But it is not necessary to prove that the thing will produce an abortion, nor to allege in the indictment that the mother did not die : State v. Gedicke, 43 N. J. L. 86. In that state the statute does not make it a crime for a woman voluntarily to take drugs or medicines for the purpose of procuring an abor- tion ; and she would not become an accomplice in the crime of another who should administer a potion to her for that purpose, although he would be guilty of a crime : State v. Hyer, 39 N. J. L. 598. 188 field's medico-legal guide. Where an indictment charged the defendant with procuring an abortion resulting in the death of the patient, A. B., and the indictment closed with an alles^ation as follows : "in manner and form and by the means aforesaid, did then and there kill and murder her, the said A. B.," and objection was made to the indictment on the ground of duplicity, the indictment was sus- tained, the procurement of the miscarriage con- stituting the coiyus delicti : Taylor v. State, 101 lud. d. CHAPTER VI. CRIMINAL LIABILITY FOR NEGLIGENCE OR MIS- CONDUCT. § 92. Statutory provisions on the subject. In this connection it may be proper to observe that the penal statntes of various states provide generally for the punishment of physicians, sur- geons and others for negligence or misconduct in their professional employment or business which causes the death of some person. Thus the Penal Code of New York provides as follows : " § 195. A person who, by any act of negli- gence or misconduct in a business or employment in which he is engaged, ... or by any un- lawful, negligent or reckless act, ... oc- casions the death of a human being, is guilty of manslaughter in the second degree." [It has been held that a dealer in drugs and medicines who carelessly labels a deadly poison as a harmless medicine, and sends it into the 190 field's medico-legal guide. market as siicli, is liable to all persons who, with- out fault on their part, are injured by such med- icine in consequence of the false label : Thomas V. Winchester, 6 N. Y. 397.] " § 200. A physician or surgeon, or person prac- ticing as such, who, being in a state of intoxica- tion without a design to effect death, administers a poisonous drug or medicine, or does any other act as a physician or surgeon to another person which produces the death of the latter, is guilty of manslaughter in the second degree. " § 202. Manslaughter in the second degree is punishable by imprisonment for not less than one year nor more than fifteen years, or by a fine of not more than one thousand dollars, or by both." § 93. General criminal liability at common law for mal- practice. It may be observed that at common law, as Avell as under statutes, a physician or surgeon who, by his culpable negligence in his profes- sional practice, causes the death of his patient, is guilty of manslaughter ; and if a person unlaw- fully engages in the practice of medicine, as where he does so contrary to the statute, and CRIMINAL LIABILITY FOR NEGLIGENCE, ETC. 191 kills a person by administering to him medicines, even which he thinks will be beneficial to the patient and not dangerous to health or life, would, it seems, still be guilty of manslaughter : Marsh v. Davidson, 9 Paige (N. Y.), 579. If a physician or surgeon, or any person assuming to be such, by his gross negligence or gross ignorance, or by his rashness or want of proper caution, causes the death of his patient, it is manslaughter at common law : 1 Hale's P. C. (Eng.) 429; 4 Bl. Com. 197; Eex v. St. John Long, 4 C. & P. (Eng.) 432 ; Rex v. Van Butchell, 3 C. & P. 333 ; Rex v. Ellis, 2 C. & K. (Eng.) 470 ; Rex v. Spiller, 5 C. & P. 333 ; Rex V. Williams, 3 C. & P. 635. Ill the case last cited the defendant, a surgeon and physician, was indicted and tried for man- slauo^hter at common law. Lord EUenborouo^h charged the jury as follows : " It is for you to consider whether the evidence goes so far as to make out a case of manslausrhter. To substan- tiate that charge the prisoner must have been guilty of criminal misconduct, arising either from the grossest ignorance or the most criminal inattention. One or the other of these is ueces- 192 field's medico-legal guide. sary to make him guilty of that criminal negli- o^euce aud misconduct which is essential to make out a case of manslaughter. It does not appear in this case that there was any want of attention on his part : and from the testimony of the wit- nesses on his behalf, it appears that he had de- livered many women at diflerent times, and from this he must have had some degree of skill." It may be affirmed as a general rule, in the absence of statntory regulations on the subject to the contrary, that a physician or surgeon, qualified and authorized by law to practice as such, could not be held criminally responsible for an honest error of judgment in the treatment of his patient, although it may cause his death. But if the death of a patient results from his gross carelessness, or ignorance, or from criminal misconduct or inattention, he would be guilty of manslaughter at common law, if not under statutes : See 3 Wheeler's Crim. Rep. (N. Y.) 312 ; Commonwealth v. Thompson, 6 Mass. 134 ; Fairlee v. People, 11 111. 1 ; Brice v. State, 8 Mo. 561 ; State v. Morphy, 33 la. 270 ; 11 Am. Rep. 122. Thus where a physician recklessly applied kerosene oil to a patient's body, which CEIMINAL LIABILITY FOR NEGLIGENCE, ETC. 193 caused blistering and death, it was held that he might be convicted of manslaughter, although there was no evil intent : Commonwealth v. Pierce, 138 Mass. 165 ; 52 Am. Eep. 264. A person who merely assumes to act as a physician, but is known not to be such, is not criminally liable for the death of his patient caused by the medicine which he administers, provided he acts in good faith and to the best of his abilities : State v. Shultz, 55 la. 628 : 39 Am. Eep. 187. CHAPTER VII. PRACTICE WITHOUT A LICENSE OR DIPLOMA PROHIBITED. § 94. General provisions of statutes on the subject. Ill various states, if not generally, the practice of medicine or surgery, without a license t*here- for or a diploma, is prohibited by statute, and a peualt}' is imposed for its violation. Thus it is provided by statute in New York as follows : " No person shall practice physic or surgery, unless he shall have received a license or diploma for that purpose from one of the incorporated medical societies of the state, or the degree of doctor of medicine from the Regents of the Uni- versity ; or shall have been duly authorized to practice by the laws of some other state or country, and have a diploma from some incor- porated college of medicine, or legally incor- porated medical society in such state or country. * ' No person coming from another country PRACTICE WITHOUT LICENSE, ETC. 195 shall practice physic or surgery in this state until he shall have Ijeen examined and licensed by the censors of the State Medical Society ; and no person coming from another state shall practice physic or surgery in this State until he shall have filed a copy of his diploma in the office of the clerk of the county where he resides, and until he shall have exhibited to the medical society of that county satisfactory testimonials of his qualifications, or shall have been examined and approved by its censors. "No diploma, granted by any authority out of this State, to an individual who shall have pur^ied his studies in any medical school within this state, not incorporated and organized under its laws, shall confer on such individual the right of practicing physic or surgery within this State. " Every person licensed to practice physic or surgery, or both, shall deposit a copy of such license with the clerk of the county where he resides, who shall file the same in his office ; and until such license is so deposited, such person shall be liable to all the penalties provided by law, in the same manner as if he had no license. " No person under the age of twenty-one years 196 field's medico-legal guide. shall be entitled to practice physic or surgery :" 2 Rev. Stat. K Y,, ch. xiv, tit. 7, §§ 16, 17, 18, 19, 20. The foregoing provisions have been amended, and perhaps some of them repealed in part by subsequent statutes. The copyirig these pro- visions was for the piu'pose of indicating the general scope and character of the legisla- tion regulating and controlling the practice of medicuie and surgery, without intending to fur- nish the exact status of the law as it now exists in the State of New York. The statutes of other states contain very similar provisions ; but it does not fall within the compass of this volume to present the provisions of the law on this sub- ject in the various states. These must be con- sulted in the state where information is desired on this subject. In some of the states it is ex- pressly provided that a person shall not be permitted to recover by action for services ren- dered as a medical practitioner unless he shall have received a license or diploma therefor, and complied with the statutes regulating the prac- tice of medicine and surgery. But in the absence of such a provision, a claim for services PRACTICE WITHOUT LICENSE, ETC. 197 rendered in violation of the statute could not be enforced l)y action at law. § 95. Criminal liability for practicing without license. Penalties are usually imposed l)y statute for a violation of the provisions of the statutes regu- lating the practice of medicine and surger3^ in the various states. And if the offender persists in a violation of the statutes on the subject, the statutes frequently provide that he may be either fined or imprisoned, or both. On this subject the Penal Code of New York provides : '' § 356. A person who practices or attempts to practice medicine or surgery in this State, unless authorized to do so by a license or diploma from some chartered school, state board of medical examiners, or medical society, or who practices under cover of a license or diploma illegally or fraudulently obtained, is guilty of a misde- meanor, punishable for the first offense by a fine of not less than fifty dollars nor more than two hundred dollars, and for any subsequent offense by a fine of not less than one huridred dollars nor more than five hundred dollars, or by im- 198 field's medico-legal guide. prisonmeut noteless than thirty days, or by both such iraprisoiimeiit and fine." It has been held that such a statute does not apply to one who undertakes to cure diseases by manipulating the body of the patient, as by i-ub- bing, kneading or pressing it : Smith v. Lane, 24 Hun (N. Y.), 632. Where the defendant was charged with practicing without a diploma, the production of a diploma b}^ the defendant would be iwima facie evidence of a right to it : Ra3aior V. State, 62 Wis. 289 ; Wendel v. State, 62 Wis. 300 ; Holmes v. Halde, 74 Me. 28. It has been further held, in New York, that if a person engaged in the unlawful practice of medicine, contrary to the statute, kills a person by administering medicines which he believes not to be dangerous to his health or life, he is guilty of manslaughter : Marsh v. Davieson, 9 Paige, 597. And it has also been held in that state that an unlicensed ph^^sician cannot maintain an action for his services : Zimmerman v. Moerison, 14 Johns. 369; Alcott ^;. Barber, 1 Wend. 526; Smith V. Tracy, 2 Hall, 465. But see Bronsou V. Holfman, 7 Hun, 614. PRACTICE WITHOUT LICENSE. ETC. 199 § 96. Criminal liability for causing death by administering a drug or medicine in a state of intoxication. Ill addition to the statutory provisions in New York, before referred to, relating: to the criminal lialjility of a physician or surgeon who in a state of intoxication administers a drug or medicine which causes death, there is a further provision in the Penal Code of that state as follows : "§357. A ph3'sician or surgeon, or person practicing as such, who, being in a state of in- toxication, administers any poison, drug or medi- cine, or does any other act as a physician and surgeon to another person by which the life of the latter is endangered or his health seriously affected, is guilty of a misdemeanor." Similar statutory provisions may be found in various states. § 97. Removal of attorneys for misconduct. We have noticed that at common law and under statutes the confidential communications made bet^^een attorney and his client, and physi- cian or surgeon aud his patient, relating to pro- fessional business, will generally be protected, and the se.'d of secrecy is applied to the mouth of each under such circumstances. So we have 200 field's medico-legal guide. seen that the physician or surgeon may forfeit his right to practice as such for violation of the statutes and rules duly ordained and established by medical institutions and boards in various states. In this connection it may be proper to remark that an attorney duly admitted to practice in au}^ court, state or national, may forfeit this right by his misconduct ; and he may be suspended or re- moved from such office by such court if it appear that he has been guilty of such misconduct, after investigation by the court on charges made, and after opportunity is had by the attorney to be heard on the charge : Ex parte Burr, 2 Cranch, U. S. 379 ; Same, 9 Wheat. (U. S.) 529 ; Austin's Case, 5 Eawle (Pa.), 191 ; Re Yale, 75 N. Y. 526 ; Fletcher v. Dangerfield, 20 Cal. 427 ; State V. Sharp, 7 la. 191 ; see also 1 Field's Lawyers' Briefs, § 460. The charge or information against an attorney in such a case should state the facts with reason- able precision ; and where it merely charged that the attorney took legal papers belonging to the files, etc., this was held to be too indefinite : People V. Allison , 6 8 111. 1 5 1 . And all such charges PRACTICE WITHOUT LICENSE, ETC. 201 should be clearly sustained by evidence : Matter of Balluss, 28 Mich. 507. In some states attor- neys ma}^ be disbarred for neglecting to pay or deliver on demand property or money of clients in their hands and which should be paid or delivered : Klingensmith v. Kepler, 41 Ind. 341 ; People v. Palmer, 61 111. 255 ; Slemmer V. Weight, 54 la. 164. § 98. Duty of attorneys to the court. In general it may be observed that an attor- ney's duty towards the court embraces at least integrity, courteous demeanor, and a proper respect for its authority ; and a willful disregard of such duty is a contempt of court, and a ground of suspension or disbarment, besides con- stitutiug sufficient ground for a fine or imprison- ment, in certain cases, where the circumstances warrant it ; and the court may, in some cases where the contempt is manifest, act upon its own personal knowledge. On this subject we have heretofore said : " The duty of the attorney to the court is not merely that of courteous demeanor, but he is required to show [)roper respect to its authority. And if an 202 field's medico-legal guide. attorney is guilty of contempt of court, by the use of abusive and insulting language, or by indecent conduct in the presence of the court, or a willful disregard of its authorit}^ this is sufficient ground for a fine, or for suspension, or for disbarment, and the court could act upon such a case without further evidence than its own personal knowledge: ExjDcirte Robinson, 19 Wall. 505. But the right to disbar, it has been observed, should not be ex- ercised except under circumstances which would render the continuance of the attorney in prac- tice incompatible with a proper respect for the court itself, or a proper regard for other attor- neys at the bar ; and not where a fine, reprimand or temporary suspension would accomplish the purpose desired : Ex parte Seacomb, 19 How. (U. S.) 9 ; see also Bradley v. Fisher, 13 Wall. 335 ; Jackson v. Texas, 21 Tex. 'oQ^ ; Ex parte Cole, 1 McCrary (U. S. C. C), 405; Be. McCarthy, 42 Mich. 71. The duty to the court embraces integrity ; and where an attorney's name was stricken from the rolls for erasino^ the word " not " in a letter to a county judge, ad- visino; him not to allow bail to one indicted for murder, it was held a proper case for disbar- PRACTICE WITHOUT LICENSE, ETC. 203 meiit : Baker v. Com., 10 Bush (Ky.), 592 ; see also Be Hirst, 9 Phil. (Pti.) 216 ; Stout v. Proc- tor, 71 Me. 288 • Be Arctancler, 26 Miim. 25. In case of a manifest contempt of court and its au- thority in its presence and under its observation) it has been suggested by high authority that the attorney should ordinarily be heard before the order is made for his disbarment, especially in explanation of any matters that may show an absence of improper motives on his part, or that would mitigate tlie offensive character of his con- duct ; and to make reparation and apology : ^x parte Eobinson, 19 Wall. (U. S.) 505 ; Bradley V. Fisher, 13 Wall. 335 ; £Jx parte Bradley, 7 Wall. 364; Beene v. State, 22 x\rk. 157; Fletcher v. Dangerfield, 20 Cal. 430 ; Saxton v. Stowell, 11 Paige (N. Y.), 526; see also Be Attorney, 86 N. Y. 573 ; Stout v. Proctor, 71 Me. 288; Be Davis, 93 Pa. St. 116 ; Be Stein- man, 95 Pa. St. 220 ; 1 Field's Lawyers' Briefs, § 461. § 99. Disbarment or suspension of an attorney not neces- sarily final. The judgment or order of the court disbarring or suspending an attorney is not always final. 204 field's medico-legal guide. But so long as it remains unmodified, or is not set aside or repealed, the attorney has no author- ity to practice in the same or similar courts ; nor can he be readmitted to practice in such courts, except the judgment or order be set aside. But the court making the order may upon proper ap- plication restore the attorney to his original rights : 1 Field's Lawyers' Briefs, § 462. During the suspension or disbarment of an attorney he cannot represent any person in court as an attor- ney or agent : Cobb v. Superior Judge, 43 Mich. 289. As to the remedy of the attorney in such cases, see 1 Field's Lawyers' Briefs, § 463. CHAPTER VII. CIVIL LIABILITr FOR MALPRACTICE. § 100. Various kinds of malpractice defined. Malpractice, from the Latin mala praxis, may be defined as bad or unskillful practice in a phy- sician, surgeon, or other medical person, whereljy the health of the patient is injured, or his life destroyed. Willful malpractice takes place when the physician or surgeon purposely administers medicines or performs an operation which he knows and expects will result in damage to the health or in death of the individual under his care : El well on Malp. 243 : People v. Lohman, 2 Barb. (N. Y.) 216. Negligent malpractice comprehends those cases where there is no criminal or dishonest in- tent or object, but gross negligence of that atten- tion which the situation of the patient requires ; as if a physician should administer medicines while in a state of intoxication, from which in- jury to the health, or the death of the patient arises. 206 field's medico-legal guide. Ignorant malpractice is the administration of medicines, or the performance of surgical oper- ations, calculated to do injury, and which do harm, and which a well educated and scientific medical man would know were not proper in the case : Elwell on Malp. 198 ; 7 B. & C. (Eng.) 493 ; 5 C. & P. (Eng.) 333 ; 1 Mood. & K. (Eng.) 405 ; 5 Cox C. C. (Eng.) 587 ; 6 Mass. 134. We have noticed that at common law, as well as under statutes in various states, malpractice is an ofiense. And this is true, whether it be occa- sioned by curiosity and experiment, or by neglect, as it breaks the trust which the patient has put in his physician or surgeon, and tends directly to his destruction : 3 Chit. C. L. 863 ; 2 Euss. C.L. 863; see also Patten z;. Wiggin, 51 Me. 594. But our purpose in this connection is to treat of the civil liability of the medical man for mal- pi'actice. § 101. Liability for damages in general for malpractice. A physician or surgeon may become liable in damages for an injury to a patient, at common law and under statutes, or for the death of a patient caused by his malpractice. CIVIL LIABILITY FOR MALPRACTICE. 207 In the case of surgeons, especially, civil ac- tions for damages are very common where sur- gical operations are necessary, or supposed to be so, by reason of disease or injury, and the op- eration is so unskill fully performed as either to shorten a limb, or render it stiff, or otherwise prevent the free use of it, by which the patient ever afterward suffers inconvenience and sustains damages. Injury of this kind, and consequent damages, may result from almost every kind of unskillful surgical operations, and especially in cases of amputation, fractures or dislocations : Elwell on Malp. 55 ; Barnes v. Means, 82 111. 379. In the case last cited it was held that where, from want of skill of the defendant as a surgeon, a limb he was employed to set was shortened, he was liable in damages therefor. § 102. Skill reqmred of a surgeon or physician. To the performaoc€ of all sui-gical operations the surgeon is bound to bring, at least, ordinary knowledge and skill. He must adopt the means and apply the skill well settled by the highest lights of the profession. He must possess and practically exercise that degree and amount of 208 field's medico-legal guide. knowledo'e and science which the lead in 2: au- thorities have pronounced as the resnlt of their researches and experience up to the time, or within a reasonable time, before the issue or question to be determined is made : Elwell on Malp. 55 ; 6 Am. Law Reg. (N. S.) 774 ; see also 8 East (Eng.), 347 ; 1 H. Bl. (Eng.) 61 ; McCandless v. McWha, 22 Pa. St. 261^ 27 N. H. 460 ; 13 B. Mon. 219 ; Sliear. & Redf on Negligence, ^ 440 ; McLalon v. Adams, 19 Pick. (Mass.) 333 ; Carpenter v. Blake, 60 Barb. 488; Patten v. Wiggin, 51 Me. 594 ; Eex v. Long, 4 C. & P. (Eng.) 423 ; Slater v. Baker, 2 Willes (Eng.), 259. Messrs. Shearman and Redfield, have stated the general rule of civil liability of the medical man for malpractice as follows : "Although a phj^sician or surgeon may doubtlessly by express contract undertake to perform a cure absolutely, the law will not implj^ such a contract from the mere employment of a physician. A physician is not an insurer of a cure, and is not to be tried for the result of his remedies. His only contract is to treat the case with reasonable diligence and skill. If more than this is expected it must be CIVIL LIABILITY FOB MALPRACTICE. 209 expressly stipulated for. . . . The general rule, therefore, is, that a medical man, who attends for a fee, is liable for such want of ordinary care, diligence or skill on his part as leads to the in- jury ot" his patient. To render him liable, it is not enough that there has been a less degree of skill than some other medical men might have shown, or a less degree of care than even himself might have bestowed ; nor is it enough that he himself acknowledo;ed some deoTee of want of care ; there must have been a want of competent and ordinary care and skill, and to such a degree as to have led to a bad result. . . . But a pro. fessed physician or surgeon is bound to use not only such skill as he has, but to have a reason- able degree of skill. The law will not counte- nance quackery ; and although the law does not require the most thorough education or the largest experience, it does require that an unedu- cated ignorant man shall not, under the pretense of being a well-qualified physician, attempt reck- lessly and blindly to administer medicines or perform surgical operations. If the practitioner, however, frankly informs his patient of his want of skill, or the patient is in some other way fully 210 field's medico-legal guide. aware of it, the latter cannot complain of the lack of that which he knew did not exist : Shearni. & Red. on Neg., §§ 433-435. See also, in support of the foregoing propositions, Leigh- ton V. Sargent, 27 Me. (7 Fost.) 468; Reynolds V. Graves, 3 Wis. 416; Carpenter v. Blake, 60 Barb. (N. Y.) 488 ; Patten v. Wiggin, 51 Me. 594; Briggs v. Taylor, 28 Yt. 180; Landon v. Humphrey, 9 Conn. 209; MacNevins v. Lowe, 40 111. 209; Smothers v. Hanks, 34 la. 2S6', Teft V. Wilcox, 6 Kan. 46; Howard v. Grover, 28 Me. 97; Long v. Morrison, 14 Lid. 595; Com. V. Thompson, 6 Mass. 134; Smothers v. Hanks, 34 la. 286; 11 Am. Rep. 141; Small v. Howard, 128 Mass. 131; 35 Am. Rep. 363; Potter V, Warner, 91 Pa. St. 362 ; 36 Am. Rep. 668. The last proposition reminds the author of a case said to be found in the judicial records of the Mohammedans, which is reported as follows : "A man who had a disease in his eyes called on a farrier for a remedy, and he applied to him a medicine commonly used for his patients ; the man lost his sight and brought an action for damages, but the judge said no action lies, for if CIVIL LIABILITY FOR MALPRACTICE. 211 the compkiinant had not been himself an ass he would never have employed a farrier : " Jones on Bailm. 100 ; 1 Field's Lawyers' Briefs, sub. Bailments, § 573. See also Musser v. Chase, 29 Ohio St. 577. Continuing the subject as to the care and skill required of the physician and surgeon, and their liability for the proper use of them, we jigain quote from our favorite authors : '• The standard of skill may vary according to circumstances, and may be different even in the same state or country. In country towns and in unsettled portions of the comitry remote from cities, physicians, though well informed in theory, are but seldom called upon to perform difficult operations in surgery, and do not enjoy the greater oppor- tunities of daily observation and practice which large cities afford. It would be unreasonable to exact from one in such circumstances that hio^h degree of skill which an extensive and constant practice in hospitals or large cities would imply a physician to be possessed of. A physician, though inexperienced and unlearned, may in some circumstances undertake an operation, and in such a case he is bound only to use the best 212 field's medico-legal guide. skill he has, for, as has been before remarked, ' Many persons would be left to die, if irregular surgeons were not allowed to practice.' None but the most general tests of a physician's skill can be stated as rules of law. The great variance between the medical theories which find acceptance among the different schools, each of which has its sincere and devoted adherents, and each being, in the estimation of its opponents, mete quackery, make it impossible to assert as a proposition of law that any particular system affords an exclusive test of skill. But one who professes to adhere to a particular school must come up to its average standard and must be judged by its tests, and in the light of the present day. Thus a physician who should now practice the reckless and indiscriminate bleeding which was in high repute thirty years ago, or should shut up a patient in fever and deny all cooling drinks, would doubtless find the old practice a poor excuse for his imbecility. So, if a professed homoeopathist should violate all the canons of homoeopathy, he would be bound to show some very good reasons for his conduct, if it was attended v/ith injurious effects. Upon many CIVIL LIABILITY FOR MALPRACTICE. 213 points of medical and surgical practice all of the schools are asTreed, and indeed common sense and universal experience prescribe some invari- able rules, to violate which may generally be called o^ross nesflio^ence. . . . The state of health of the patient may have much weight in determining whether ordinary diligence and care have been used by the attending physician. What might be deemed ordinary care in some circumstances would be gross negligence in others. A disease known to be rapid and dangerous will require more instant and careful attention and application of remedies, than one comparatively harmless and requirhig only good nursing. . . . Aside from the manipulation of a fractured limb, a surgeon has to contend with very many powerful and hidden influences, such as the habits, hereditary tendencies, vital force, mental state and local circumstances of the patient. While on the one hand these will ex- plain his ill success and moderate the degree of his responsibility, it would seem that heis])0und to inform himself of these facts, so far at least as they would be likely to influence, in the manage- ment of the case, the conduct of a prudent phy- 214 field's medico-legal guide. siciaii. We should say, for example, that a physician about to administer an anaesthetic is bound to inform himself as to the condition of the patient's heart, lungs, or other organs, which, if diseased, would warn a prudent physician against the administration of that beneficent agency:" Shear. & Red. on Neg., §§ 436-439. § 103. Not bound to use the highest degree of skill. A ph3'sician or surgeon is not bound to use the highest degree of skill, but he must use reasonable skill and dili^jence, and in iudo:ino^ of this, regard must be had to the advance in med- ical and surgical knowledge and the improve- ments of recent times : Smothers v. Hanks, 34 la. 286 ; 11 Am. Rep. 141 ; Almou v. Nugent, 34 la. 300 ; 11 Am. Rep. 147 ; Hairc v. Reese, 7 Phil. (Pa.) 138 ; Lamphier v. Phipos, 8 C. & P. (Eng.) 475 ; O'Hara v. Wells, 14 Neb. 403 ; Elwell on Malp. 22-24, 204. § 104. Implied duty of the physician or surgeon. If a person holds himselt out to the world as a physician or surgeon, the law implies a duty on his part to exercise reasonable skill and diligence CIVIL LIABILITY FOR MALPRACTICE. 215 in the treatment of patients he may l)e called upon to attend, and does attend, in a professional capacity: Patten v. Wiggin, 51 Me. 594; Car- penter V. Blake. 5 N. Y. 696 ; Keynolds v. Graves, 3 Wis. 416 ; Hoopingarner v. Levy, 77 Ind. 455. But he does not impliedly undertake to per- form a cure, nor to use the highest possible degree of skill: Haire v. Reese, 7 Phila. (Pa.) 138; Lamphier v. Phipos, 8 Car. & P. (Eng.) 475 ; Smothers v. Hanks, 34 la. 286 ; 11 Am. Rep. 141. If more than ordinary skill and care is ex- pected from the medical man, he would not be liable for this unless an express contract for this purpose be made, or such contract is to be fairly inferred from all the circumstances of the case: McCandless v. McWha, 22 Pa. St. 261 ; Barnard V. Means, 82 111. 379. A medical man cannot experiment with his patients to their injury without liability to dam- age for the same : Patten v. Wiggin, 51 Me. 594. It would be the implied duty of a regular family physician or one who had usually been called to attend upon a family or an individual, 216 field's medico-legal guide. in responding to a call for professional services in such a case, to attend the case so long as it re- quires attention, unless he should give reasonable notice declining so to do, or is discharged by the patient. And he is under obligation to use ordinary care and skill not only in his attendance, but in determining when it may be safely and properly discontinued. But it is competent for a physician or surgeon and his patient to enter into a contract limiting the attendance for a longer or shorter period, or to a single visit, or the frequency of the visits ; and without this the medical man may elect to discontinue his attendance for any cause or without cause, upon giving reasonable notice of his intention to do so : See Ballou v. Prescott, 64 Me. 305 ; Todd V. Myers, 40 Cal. 357. § 105. These general principles applicable to dentists. It may be observed that the general doctrine of liability for malpractice of a physician or sur- geon, above indicated, would be equally applica- ble to dentists ; and they would be liable in damages for injuries inflicted in their professional practice and operations arising from want of CIVIL LIABILITY FOR MALPRACTICE. 217 reasonable care, skill and attainments iu the pro- fession : Simonds v. Henry, 39 Me. 155. But the practice of dentistry is regulated by statutes in various states. If he uses chloroform or other anaesthetic agent, it would be his duty, like that of the physician or surgeon, to look to the prob- able effect ; and, generally, it would be his duty to inform himself as to the condition of the heart of his patient, and the lungs or other organs, which, if diseased, would warn a prudent dentist, phy- sician or surgeon, against the administration of such a beneficent agency, in the practice of their respective professions : Bojde v. Winslow, 5 Phila. (Penn.) 136 ; Shearm. & Ked. on Neg., § 439 ; Jones v. Fay, 4 Fost. & F. (Eng.) 525. § 106. Instance of the liability of a physician in a special case of impropriety. Where a physician took an unprofessional and unmarried man with him to attend a confinement case, and no necessity existed for the latter's assistance, it v/as held that both were liable in damages to the woman, and that the right to re- cover was not affected by the fact that the patient and her husband supposed the intruder was a medical man, and therefore submitted without ob- 218 field's medico-legal guide. jectioii to his presence : De May v. Roberts, 46 Mich. 160 ; 41 Am. Rep. 154. § 107. Proof of malpractice ; burden of. On this subject we have heretofore stated the general rule as to the burden of proof, as fol- lows : "As to the order of the production of evidence, it is held that the burden of proving any fact lies upon the part}^ who substantially asserts the affirmative of the issue, and such party is entitled to begin and reply. In gene- ral, the party commencing the proof is also re- quired to develop the whole, and go through with the proof of his whole case :" 3 Field's Lawyers' Briefs, § 310 ; see also Powers v. Rus- sell, 13 Pick. (Mass.) 69 ; Crowningshield v. Crowningshield, 2 Gray (Mass.), 524 ; 1 Greenl. on Ev., § 74 ; Best on Ev. (Morg. Am. ed.), Par. 637. It follows that, in an action against a phy- sician or surgeon for damages for malpractice, where there is a denial of the claim, the plaintiff must affirmatively prove all the material ele- ments of the negligence charged ; and if want of skill or knowledge is charged, this must be CIVIL LIABILITY FOR MALPRACTICE. 219 affirmatively shown hy the plaintiff by a prepon- derance of evidence before he can claim the ver- dict of a jury in his favor. On proof of the mode of treatment by a physician or surgeon, in a particular case, it would be competent to in- troduce expert testimony as to skill or want of knowledge : Leighton v. Sargent, 31 N. H. (11 Foster) 119 ; Carpenter v. Blake, 60 Barb. 488. "The defendant may, however, produce evi- dence of his general skill, where an issue is made upon his possession of skill, and not merely upon his use of it. And where there is much doubt as to the skillful ness of his treatment of a par- ticular case, evidence of his general skillfulness will be material upon all issues of the case ; for if he had skill it is natural to presume he would use it. But where the plaintiff does not question the defendant's general skillfulness, evi- dence thereof is not competent on behalf of the defendant, in a case not otherwise evenly bal- anced. But to rebut evidence introduced by the defendant to support his general professional character, it is competent to show that he was not a regular bred physician. The fact that some surgeons approve the practice adopted, 220 field's MEDICO-LEaAL GUIDE. does not necessarily preclude a jury from con- demning it as negligent, if the decided weight of authority is to that effect:" Shear. & Redf. on Negligence (3d ed.), § 442. The want of proper care and skill may be shown by evidence of the mode of treatment pursued by the defendant : Leighton v. Sargent, 31 K H. 119 ; Baird z;. Morford, 29 la. 531. CHAPTER YIII. DAMAGES. § 108. Matters in defense or mitigation. It is the duty of every person to use reason- able care, diligence and prudence, not only to avoid injuries from others, but to avoid, as much as possible, damages or losses from the wrongs or torts of others. Although a patient may have sustained injury from the malpractice of his ph3\sician or surgeon, if there be on the part of the patient a want of ordinary and proper diligence and care to avoid the consequences of such malpractice, he may be chargeable with contributory negligence, and thereby be prevented from recovering damages, or at least limited in his recovery to such dam- ages as could not have been avoided by the exer- cise of ordinary and reasonable care and diligence, under all the circumstances of the case : 2 Field's Lawyers' Briefs, §§ 445, 446. See also Harrison v. Berkley, 1 Strob. (S. C.) 548: 222 field's medico-legal guide. Stover V. Bluehill, 51 Me. 439; Dorwiii v. Potter, 5 Deiiio (N. Y.), 306 ; Walker v. Ellis, 1 Sneed (Teiiu.), 518 ; Hamilton v. McPhersoii, 28 N. Y. 73 ; Bennett v. Lockwood, 20 Weiid. (N. Y.) 223 ; Hassa v. Junger, 15 Wis. 598 ; McGrew V. Stone, 53 Pa.' St. 436. A surgeon may generally be liable for malpractice in short- ening a limb he is employed to set, still it may be otherwise if he is discharged before the proper time arrives for applying the proper treatment to prevent shortening : Kendall v. Brown, 74 111. 232. § 109. In case of contributory negligence. A physician or surgeon is liable for injury caused his patient by the want of skill and dili- gence wdiich an intelligent and respectable member of the profession would use under the same cir- cumstances. But if the proximate cause of the injury was the neglect of the patient to use the remedies prescribed, or if he aggravated the case by his own misconduct, the physician or sur- geon would not be liable for the injury caused by such misconduct on his part: Craig v. Chambers, 17 Ohio St. 253 j McCaudless v. McWha, 22 Pa. BAMAGP^S. 223 St. 261; 25 F'd. St. 96; Hibbiird ?;. Thompson, 109 Mass. 288. And if the patient contributes to his in- jury by failing to obej^the reasonable instructions of his physician or surgeon, he cannot recover for such injury, although such physician or surgeon may have failed to use the skill and diligence imposed upon him by law : 4 Field's L. B., § 733; Geiselman v. Scott, 25 Ohio St. 86 ; McCandless V. McWha, 25 Pa. St. 95 ; Hi1)bard v. Thomp- son, 109 Mass. 286 ; Smith v. Smith, 9 Pick. (Mass.) 621. But where one has received a per- sonal injury from the negligence of another, the dama<2fes of the former in an action as^ainst the latter will not l3e reduced by reason of his not having secured the most skillful medical aid, if he used reasonable and ordinary care : 32 la. 324 ; 7 Am. Eep. 200. § 110. Punishment for the crime no defense to civil action. It may be observed that a trial and punishment for criminal malpractice would be no bar to a civil action for damaoes arisino- therefrom, nor would it aifect the right of the injured party to recover exemplary damages where, according to the authoritative decisions of the courts of the 224 field's medico-legal guide. states, such damages are allowable : Field on Dam., §§ 436-439 ; Childs v. Drake,2 Met. (Ky.) 146 : Heiidricksoii v. Kiiigsbuiy, 21 la. 379 ; Garland v. Wholeham, 28 la. 185 ; Corvvin v. Walton, 18 Mo. 71 ; Cole v. Tucker, 6 Tex. 266 ; Hadley v. Watson, 45 Yt. 289 ; Cook v. Ellis, 6 Hill (N. Y.), 466 ; Roberts v. Mason, 10 Ohio St. 277 : Klopper v. Bromme, 28 Wis. 372. It is not a defense to a suit l^rou^ht ag-ainst a physician or surgeon for malpractice that the de- fendant was practicing in violation of the statute, making it an offense to practice medicine or sur- gery without certain preliminary qualifications, unless, perhaps, where the patient or employer knew, when employing the physician, that he had not the proper qualifications : Musser v. Chase, 29 Ohio St. 577. § 111. The measure of damages. The rule for the measure of damages, in case of injuries sustained by the malpractice of a physician or surgeon, would be the same as in case of injuries arising from negligence of com- mon carriers, or from assault and battery. The usual elements of damages in such a case would be as follows : DAMAGES. 225 1. Loss of time and labor arising from the in- jury sustained b}^ the malpractice. 2. The reasonable expenses incurred for sur- gical, medical and other attendance in conse- quence thereof. 3. Diminished capacity to work at the trade or business of the injured party in consequence thereof. 4. Bodily pain and mental anguish in conse- quence thereof: Field on Dam., § 600. This classification embraces only the elements of the direct pecuniary damages which may be sustained in such a case. They are the direct and immediate injury aris- ing from malpractice. But it has been held in cases where the principle would be the same that in estimating damages for personal injury, the jury may take into consideration the fact of permanent disability, and probable future dis- ability and suffering j and, in the language of a distinguished legal author, "whenever the ele- ments of fraud, malice, gross negligence, or op- pression mingle in the controversy, the law, instead of adhering to the system or even the language of compensation, adopts a wholly dif- 226 field's medico-legal guide. ferent rule. It permits the jury to give what it terms punitive, vindictive or exemplary damages; in other words, blends together the interests of society and the aggrieved individual, and gives damages not only to recompense the sufferer, but to punish the offender : " Seg. on Dam. 38. And see Field on Dam., § 26 ; 2 Greenl. on Ev. §§ 263-273 ; Field's Lawyers' Briefs, §§ 429, 434^ 436, 437, 438. In an action to recover damages for malprac- tice the plaintiff is not in any case entitled to recover anything on account of pain and suffer- ing caused by the disease or injury, but only for such additional pain and suffering as is produced by the neghgence or want of proper care and skill by the defendant : Wenger v, Calder, 78 111. 275. CHAPTER IX. COMPENSATION. § 112. The contract for services and compensation may be express or implied. The contract between a physician or surgeon and his patient or employer may be express or implied, and if express it may be specific or gen- eral, conditional or unconditional. If the agree- ment is formally stated, either verbally or in writing, it is an express contract ; but if it is a matter of inference or deduction from the acts and conduct of the parties, and the circumstances attending them, it is an implied contract. And in the latter case the contract may be enforced as well as in the former, as by a fiction of law, 30 to speak, the parties are supposed to have made those stipulations and agreements which as nonest and Mr men they ought to have made, and the law assumes that they have made them. This doctrine is universally recognized in all cases of implied contracts j and it may be ob- 228 field's medico-legal guide. served that the contract between the physician or surgeon, and his patient or employer, is usually an implied one ; the services being rendered merely on the express or implied request of the latter: See Secoa v. True, 53 N. H. 627; Allen V. Merchants' Bank, 22 Wend. 215; Bank v. Wheeler, 48 N. Y. 492; Express Co. v. Mc- Veigh, 20 Gratt. (Ya.) 264; Nevins v. Lowe, 40 111. 209; Ogden v. Saunders, 12 Wheat. (U. S.) 341; States v. Russell, 13 Wall. (U. S.) 623. An employment of a physician by a husband to attend his wife would be presumed to continue through the illness, though the wife be removed from the husband's home : Potter v. Virgil, 67 Barb. (N. Y.) 578. Bat if there be an express contract, whether verbal or in writing, that will regulate the rights of the parties in respect to all matters covered by it, and no contract or stipulation will be implied to aftect such con- tract. If, however, the express contract em- braces only a part of the subject-matter of it, as where there is a stipulation as to the price to be paid a physician or surgeon for each visit to the patient, and there is no stipulation as to the num- ber or frequency of the visits, or the skill and COMPENSATION. 229 care to be bestowed, the former would be fixed by the express contract, whereas the latter would be controlled by an. implied contract : See ante^ § 96; Lynch v: Onondaga Salt Co., 64 Barb. (N- Y.) 558; Creighton v. Toledo, 18 Ohio St. 447; Walker v. Brown, 28 III. 378; Ballou v. Pres- cott, 64 Me. 305. §113. Common presumptions; amount of compensation implied. The general principles of the law relating to master and servant would be applicable to the physician or surgeon and his patient or employer. Thus, if the former renders services to the latter by his request, express or implied, or if he has knowledge that they are being performed under such circumstances as raise a presumption of employment, and especially where he is present and assents to the performance, it would, in the absence of proof to the contrary, raise a reason- able if not conclusive presumption of a contract between the parties for the services, and of an undertaking on the part of the latter to pay so much as they were reasonably woi'th : See Cum- mins V. Chambers, 75 Ind. 409. The following cases illustrate the general principles on this sub- 230 field's medico-legal guide. ject : Cummiogs v. Nichols, 13 N. H. 420 ; Christee v. Sawyer, 44 N. H. 298 ; Law v. Eailroad Co,, 45 N. H. 370 ; Weeks v. Holmes, 12 Cush. (Mass.) 215 ; Academy v. Alien, 14 Mass. 176 ; Hurley v. Van Wagoner, 28 Barb. (N. Y.) 109 ; Moreland v. Davidson, 71 Pa. St. 371 ; Yan Arman v. Boynton, 38 111. 443 ; Jones V. Quincey, 9 Gratt. (Ya.) 708 ; Martin V. Fox, 19 Wis. 552 ; Allen v. Eichmond Col- lege, 41 Mo. 302. In the case last cited it was observed by the court : ' ' No person can by offi- cious intermeddUng cast a liability upon another, and an obligation will not generally be imposed imless there has been a previous request moving from the oblio^or and inurino^ to the oblio^ee. But where the party derives a benefit from the con- sideration, or the act done is beneficial, his sub- sequent express promise will be binding, and even his subsequent assent will be sufficient evidence upon which to predicate a previous request. Assent may be implied from the acts of another, or his silent acquiescence : " See Hapgood v. Houghton, 10 Pick. (Mass.) 154 ; Munger v. Munger, 33 N. H. 581 ; Aney's Appeal, 49 Pa. St. 126- ; De Wolf?;. Chicago, 2Q 111. 443 ; Ford COMPENSATION. 231* V. Ward, 26 Ark. 360 ; Cooper v. Railroad Co., 13 N. Y. Supreme Ct. 276. § 114. Where the request for services is made for the benefit of another. If a mere request is made by one to another to do some act or perform some service for the bene- fit of a third party, and the act or service is done with the knowledge that the party making the request will derive no benefit therefrom, and does not expect to pay for the same, the law will not imply an employment by the latter, and there would be no implied promise to pay therefor : Norris v. Dodge, 23 Ind. 190. Thus, where a person requested a physician to render some medical assistance to his brother, in an action by the physician against the person making the' re- quest to recover for the services, it was held that in order to recover on the ground of a request it must appear that the person making it intended to pay for the services, and that both parties understood it that way : Smith v. Watson, 14 Vt. 332. See also Boyd v. Sappington, 4 Watts (Pa.), 247 ; Williams v. Breckell, 37 Miss. 682 ; Bachelder v. McKinney, 36 Me. 555 ; Kittridge V, Newbury, 14 Mass. 448 j Dunbar v. Williams, 232 field's medico-legal guide. 10 Johns. (N. Y.) 249 ; Evarts v. Adams, 12 Johns. 352 ; Anderson v. Hamilton, 25 Pa. St. 75 ; Bartholomew v. Jackson, 20 Johns. (N. Y.) 28 ; Percival v. Nevilla, 1 Nott & McC. (S. C.) 452 ; 4 Field's Lawyers' Briefs, §§581, 582. § 115. Intrusive and voluntary services. The same rule would apply in case of the vol- untary and intrusive services of a physician or surgeon, as in case of such services in other cases. We have heretofore stated the general rule of law in such cases as follows : " If a per- son gratuitously or voluntarily renders services to another, without expectation of compensation or reward, or without the assent or request of the latter, express or implied, no recovery can be had therefor, however meritorious they may have been, as it is a principle of the law that a person cannot make another his debtor without his as- sent : 4 Field's Lawyers' Briefs, § 580 ; Bar- tholomew V. Jackson, supra ; Lee v. Lee, 6 Gr. & J. (Md.) 316 ; Hertzog v. Hertzog, 29 Pa. St. 465 ; Doane v. Badger, 12 Mass. 65 ; Mumford V. Brown, 6 Cow. (N. Y.) 475 ; Watson v. La- do ux, 8 La. An. 6S -, Levee Com. v. Harris^ COMPENSATION. 233 20 La. An. 291. But meritorious services voluntarily rendered will constitute a valid con- sideration for a promise thereafter made to pay for the same : Davidson v. Davidson, 13 N. J. Eq. 246 ; Grandier v. Reading, 10 N. J. Eq. 370 ] Snyder v. Castor, 4 Yeates (Pa.) 353 ; Lee V. Lee, 6 G. & J. (Md.) 316. § 116. Measure of value of services. The value of the services of a physician or surgeon may depend upon a variety of circum- stances, as upon the nature and character of the disease or other physical or mental affliction of the patient ; the amount of knowledge and skill required in the treatment ; the circumstances under which the services were rendered ; the difficulties and expenses attending them, and the responsibilities devolving upon him : See Com- missioners V. Chambers, 75 Ind. 409 ; Coms. v. Brewingtown, 74 Ind. 7. In a recent case it was held that a physician, claiming for his services, may properly consider the patient's ability to pay. And where a phy- sician claimed $2,000 for services in ox)erating upon a cancerous stricture of the oesophagus. 234 field's medico-legal guide. and it appeared on the trial that the patient's estate was of the value of between seven and eight thousand dollars, and the jury rendered a verdict for only $500, on appeal, the Supreme Court of Louisiana, increased the amount to $1,000. § 117. Judgment for services a bar to action for mal- practice. On general principles, it may be observed that, if a judgment is recovered by a physician or sur- geon against his patient for services, the latter cannot, at least under the modern practice, after- wards maintain an action as^ainst the former for malpractice in performing the services, especially if the latter had knowleds^e of the alleojed mal- practice, and could have interposed it as a defense to the original suit, and have claimed therein damages for the alleged malpractice, by way of counter-claim : Blair v. Bartlett, 75 N. Y. 150. See also Actions and Defenses, 1 Field's L. B., § 9]. § 118. Statutes regulating the collection of compensation. In various states there are statutes, regulating the collection of fees of physicians and surgeons, COMPENSATION. 235 and the practice of medicine. In some of them they cannot recover for their services unless they have a diploma, and in others unless they are licensed to practice medicine by a board ap- pointed for this purpose under statutes : Ante, §90. Thus in Georgia a physician cannot recover for his services unless he shows that he is licensed as provided by statute, or unless he shows him- self to be within the proviso in favor of phy- sicians who were in practice before the statute was adopted : 8 Ga. 74. So in Alabama and Missouri an unlicensed physician cannot recover for professional services: 21 Ala. 680 ; 15 Mo. 407. So in Wisconsin, he cannot recover for his services unless he has a diploma. But it has there been held that in an action by a practicing phy- sician for personal injuries, he may claim dam- ages for being rendered unable to continue his practice, although he had lU) diploma : McNa- mara v. Clintonville, 62 Wis. 207. And in an action for medical services it has been held that it will be presumed that the plaintiff has one until the contrary is shown : Thon:[:son v. Sayre, 236 field's medico-legal guide. 1 Denio (N. Y.), 175 ; Crane v. McLaw, 12 Rich. (S. C.) 129 ; but see Adams v. Stuart, 5 Harr. (Del.) 144 ; Bower v. Smith, 8 Ga. 74. Simihir statutes will be found in other states, which must be consulted when information is desired on this subject, in the state where it is required. In Massachusetts, where the wife of the defend- ant, being affected by a dangerous disease, was carried by him to a distance from his residence and left under the care of the plaintiff as a sur- geon, and after the lapse of some weeks the plain- tiff performed an operation on her for a cure of the disease, soon after which she died, it was held, in an action by the plaintiff against the de- fendant to recover compensation for his services, that the performance of the operation was within the scope of the plaintiff's authority if, in his judgment, it was necessary and expedient, and that it was not incumbent on him to prove that it was necessary or proper under the circum- stances, or that before he performed it he gave notice to the defendant, or that it would have been dangerous to the wife to wait until notice could be given to the defendant : 19 Pick. (Mass.) 333. COMPENSATION. 237 If a physician carries a contagious disease into the family, on a suit for his services, this may be shown to defeat his right or to reduce the amount of his claim : 12 B. Mon. (Ky.) 465. And an agreement between physicians where- by, for a money consideration, one promises to use his influence with his patrons to obtain their patronage for the other, is lawful and not void as contrary to public policy : 39 Conn. 326 ; 12 Am. Eep. 390. § 119. Proof of a diploma from a medical college. A diploma from a medical college may be proved by one who identifies the corporate seal and the genuineness of the signatures of the officers by a comparison with a diploma granted by the same college to himself and by those granted to others : Finch v. Gridley, 25 Wend. (N. Y.)4 69, CHAPTER X. MEDICAL ETHICS. § 120. Code of medical ethics of the State of New^ York. The Medical Societ}^ of the State of New York, in 1882, adopted the following Code of Medical Ethics : As to the relations of physicians to the pub- lic, the code provides as follows : " It is derogatory to the dignity and interests of the profession for physicians to resort to public advertisements, private cards, or hand- bills, inviting the attention of individuals affected with particular diseases ; publicly offering advice and medicine to the poor without charge, or promising radical cures ; or to publish cases or operations in the daily prints, or to suffer such publications to be made ; or through the medium of reporters, or interviewers, or otherwise, to permit their opinions on medical or surgical questions to appear in the newspapers ; to invite laymen to be present at operations j to boast of MEDICAL ETHICS. 239 cures and remedies ; to adduce certificates of skill and success, or to perform other similar acts. It is generally derogatory to professional char- acter, and opposed to the interests of the profes- sion, for a physician to hold a patent for any surgical instrument or medicine, or to prescribe a secret nostrum, whether the invention or dis- covery or [be the] exclusive property of himself or others. It is also reprehensible for physicians to give certificates attesting the efficacy of pat- ented medical or surgical appliances, or of pat- ented, copyrighted or secret medicines, or of proprietary drugs, medicines, wines, mineral waters, health resorts, etc : " Trans. Med. Soc. (K Y.) 1882, p. 74. As to the rules governing consultations, the code provides as follows : " Members of the Medical Society of the State of New York, and of the medical societies in af_ filiation therewith, may meet in consultation legally qualified practitioners of medicine. Emergencies may occur in which all restrictions should, in the judgment of the practitioner, yield to the demands of humanity. "To promote the interests of the medical pro- 240 riELD^S MEDICO-LEGAL GUIDE. fession and of the sick, the following rules should be observed in conducting consultations : " (1) The examination of the patient by the consulting physician should be made in the pres- ence of the attending physician, and during such examination no discussion should take place, nor any remarks as to the diagnosis or treatment, be made. When the examination is completed the physicians should retire to a room by themselves, and after a statement by the attending physician of the history of the case, and of his views of the diagnosis and treatment, each of the consult- ing physicians, beginning with the youngest, should deliver his opinion. If they arrive at an agreement, it will be the duty of the attending physician to announce the result to the patient, or to. some responsible member of the family, and to carry out the plan of treatment agreed upon. " (2) If, in the consultation, there is found to be an essential difference of opinion as to diag- nosis or treatment, the case should be presented to the patient, or some responsible member of the family, as plainly as possible, to make such choice, or pursue such course, as may be thought best. MEDICAL ETHICS. 241 " (3) In case of acute, dangerous or obscure illness, the consulting physician should continue his visits at such intervals as may be deemed necessary by the patient or his friends, by him or by the attending physician. " (4) The utmost punctuality should be ob- served in the visits of physicians when they are to hold consultations ; but as professional engage- ments may interfere or delay one of the parties, the physician who first arrives should wait for his associates a reasonable period, after which the consultation should be considered as postponed to a new appointment. If it be the attending physician who is present, he will of course see the patient and prescribe, but if it be the con- sulting physician he should retire, except in an emergency or when he has been called from a considerable distance, in Tvhich latter case he may examine the x^atient and give his opinion in writ- ing and under seal, to be delivered to his asso- ciates : " Id. As to the relations of physicians to each other the code provides as follows : " (1) All practitioners of medicine, their wives and children, while under paternal care, are en- 242 field's medico-legal guide. titled to the gratuitous services of any one or more of the faculty near them whose assistance may be desired. Gratuitous attendance cannot, however, be expected from physicians called from a distance, nor need it be deemed obligatory when opposed by both the circumstances and the preferences of the patient. " (2) The affairs of life, the pursuit of health and the various accidents and contingencies to which a medical man is peculiarly exposed may require him temporarily to withdraw from his duties to his patients and to request some of his profes- sional brethren to officiate for him. Compliance with this request is an act of courtesy which should always be performed with the utmost con- sideration for the interests and character of the family physician, and when exercised for a short period, all the pecuniary obligations of such ser- vice should be awarded to him. But if a mem- ber of the profession neglect his business in quest of pleasure or amusement, he cannot be consid- ered as entitled to the advantages of the frequent and long continued exercise of this fraternal courtesy without awarding to the physicians who officiated the fees arising from the discharge of his professional duties. MEDICAL ETHICS. 243 " (4) 111 obstetrical and important surgical cases, which give rise to unusual fatigue, anxiety and responsibility, it is just that the fees accruing therefrom should be awarded to the physician who officiates. " (5) Diversity of opinion and opposition of in- terest may, in the medical as well as in the other professions, occasion controversy and even con- tention. Whenever such cases unfortunately oc- cur, and cannot be immediately terminated, they should be referred to the arbitration of a suffi- cient number of physicians, before appealing to a medical society, or the law, for settlement. " (6) If medical controversies are brought be- fore the public in newspapers or pamphlets by con- tending medical writers, and give rise to, or con- tain assertions or insinuations injurious to the personal character or professional qualiiications of the parties, the effect is to lower, in the esti- mation of the public, not only the parties directly involved, but also the medical profession as a whole. Such publications should therefore be brought to the notice of the county societies having jurisdiction, and discipline inflicted, as the case may seem to require : " Trans, of Med. Soc. N. Y., 1882, pp. 74, 75. 244 field's medico-legal guide. Ill conclusion, it may be observed that similar codes or rules of medical ethics will be found in various other states. The author inserts those found in the Transactions of the Medical Society of New York ; but these, in the main, are but the generally recognized rules of ethics observed by the respectable members of the profession, without the formal declaration of any positive rules, or the adoption of a code of ethics, re- quiring their observance. APPENDIX. Opinion as to the Constitutionality of the Iowa Statute "Regulating the Prac- tice OF Medicine." Since the preparation of the preceding pages, the author's attention has been called to the opinion of Hon. C. C. Nourse, Attorney- General of Iowa, as to the constitutionality of the Iowa statute "Regulating the Practice of Medicine." The provisions of the act are set forth in the opinion, which is as follows : " The act in question purports to be an exercise by the General Assembly of the 'police power of the state for the preservation of the health of the people,' and can be justified only, if at all, upon that ground. The principle provisions of the act are as follows : ^^ First. It requires every person within the state, who assumes the duties of a physician, surgeon or obstetrician, or who publicly professes to ' cure or heal by any means whatsoever,' to 246 APPENDIX. previously obtain a license from the'state board of health. The conditions upon which this license can be obtained are : " 1st, To hold a diploma from a medical school that, in the opinion of the board, is legally or- ganized and in their judgment is in good stand- ing ; or, " 2d, To have practiced in the state for five consecutive years ; three years of which shall have been in one locality ; or, " 3d, To answer in writing and satisfactorily, such a percentage of written questions, to be sub- mitted by the board of health, as they may de- termine shall be sufficient, and " 4th, To pay two dollars for a certificate for the first and second classes above specified, and ten dollars for the examination specified for the third class. " The 8th section of the act provides : " First. That women, who are engaged in the practice of midwifery, at the time of the taking effect of the act, may continue in the business without license. It also permits the sale of patent medicines and the advertising, selling and pre- scribing of natural mineral waters, provided, they flow from a well or spring. APPENDIX. 247 ' ' The act also permits gratuitous services in cases of emergency, by unlicensed persons. The penalty prescribed for violating the provisions of the act, is a fine of not less than fifty dollars or more than one hundred dollars, or imprisonment not less than ten, or more than thirty days in the county jail. "The constitutional provisions designed to protect the people against monopolies and unjust discriminations are as follows : "•First, Art. 4, sec. 2 of the Constitution ol the United States provides that, ' The citizens of each state shall be entitled to all privileges and immunities of citizens of the several states.' "And the 14th amendment provides as fol- lows : " ' No state shall make or enforce any law which, shall abridge the privileges or immunities of citi- zens of the United States. Nor shall any state deprive any person of life, liberty or property, without due process of law, nor deny to any person within its jurisdiction the equal protec- tion of the law.' "The Constitution of the State of Iowa con- tains the following in the ' Bill of Rights : ' 248 APPENDIX. " ' Sec. 1. All men are, by nature, free and equal, and have certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining safety and happiness. " ' Sec. 6. All laws of general nature shall have a uniform operation ; the general assembly shall not grant to any citizen or class of citizens priv- ileges and immunities which upon the same terms shall not belong to all citizens.' ' ' In ascertaining or testing the constitutionality and validity of the law in question, the first point to be settled is the rule of criterion by which we are to be governed. The Supreme Court of West Virginia, in the case of State v. Dent, 25 W. V. -1, sustaining an act of their legislature, similar in many respects to the Iowa enactment, adopts as the rule to be followed in such cases the language of Judge Hawley, in the case of JEx 'parte Spincy, 10 Nev. 328, which is as follows : ' I entertain no doubt that among the inherent privileges of the citizens of a free country is the right to pursue a lawful calling in a lawful manner, that is, subject to such restrictions and none others, as APPENDIX. 249 may be deemed necessary for the public welfare. What restrictions are necessary in that view it is the province of the legislature to decide, and its cfecision, no matter how ill-advised it may appear to be, is binding on the court whenever it appears to have been based on motives of policy err general expediency. But when the law excludes a class of citizens from the pursuit of a useful, honor- able and profitable avocation, and there is no assignable motive of policy oi expediency to jus- tify the exclusion, or in other words, when it is apparent that the whole scope and object of the law is to make a forbidden discrimination, with- out looking to the attainment of any public ben- efit, I think a court should not hesitate to say such a law is forbidden by the Constitution.' "The Supreme Court of Illinois, in the case of Yeazelle v. Alexander et al., ^'^ 111. Eep. 258, SDeakino^ of the rio^ht of the leoislature of that state, under the exercise of the police powers to prohibit the importation or keeping of Texas cattle in that state, uses the followino* lano-uaore : ' It is true that the power of the legislature is not arbitrary and unrestricted. We cannot rec- ognize wholly unrestrained power in this country. 250 APPENDIX. "We concede, too, that the discretion must be rea- sonable and should not be exercised in such a manner as to subvert natural and constitutional rights. In case of a glaring abuse of power, the courts might properly interpose to arrest a remedy which might be worse than the mischief proposed to be avoided. But when there is rea- sonable cause for the action of the legislative department, its determination ought not to be disturbed. Its motive in the enactment cannot be inquired into. The facts and conditions of things which render a law necessary for the pub- lic welfare are generally to be judged by the legislature.' "The above cases, I believe, state the rule as claimed by those who favor such legislation as that under consideration, and is the basis upon which it has been sustained. Stripped of all verbiage and circumlocution, it is : That because the legislature has power to enact laws for the preservation of the public health, that any law it may enact under color of the exercise of that authority must be sustained by the court, unless the law is so manifestly absurd that the court cannot imagine any reasonable motive for its APPENDIX. 251 enactment as a police regulation. The case above cited from 58 111. Rep., was taken to the Supreme Court of the United States and was by that court reversed, and a different and, I think, more rea- sonable rule of construction was adopted. The case is reported in 95 U. S. 473. The court says : ' The Supreme Court of Illinois refused to inquire whether the prohibition did not extend beyond the danger to be apprehended, and whether, therefore, the statute was not something more than the exercise of a police power. That in- quiry, they have said, was for the legislature and not for the court. In this we cannot concur. The police power of a state cannot obstruct for- eign commerce or inter-state commerce beyond the necessity for its exercise ; and under color of it, objects not within its scope cannot be secured at the expense of the protection afforded by the Constitution.' " In the case of Hendei'son v. The Mayor of New York, 92 U. S. 268, the Supreme Court of the United States lays down the rule as follows : ' III whatever language a statute may be framed, it purpose must be determined by its natural and reasonable effect.' 252 APPENDIX. " Non-residence cannot be made a disqualifica- tion for the pursuit of any calling or trade in any state of the Union. A few adjudicated cases upon other statutes, where such discrimination was sought to be made, I will refer to. In the case of the City ofMarshalltown v. Blum, 58 Iowa, 184, an ordinance of the city of Marshalltown re- quired a license of twenty-five dollars from all persons selling merchandise on the streets, but excepted from the provisions of the ordinance all persons retailing their own productions or their own manufacture, if they resided in Marshall county^ or if the goods were manufactured in Marshall county. " The Supreme Court of Iowa, following and citing the decision of the Supreme Court of the United States in the case of Welton v. The State of Missouri, 91 U. S. 275, held this ordinance unconstitutional and void. The court says the ordinance is void because it discriminates, not only as to the place of production of the merchan- dise, but also the place of residence of the peddler. The ruling in this case is followed by our Su- preme Court in the case of The Town of Pacific Junction v. Dyer, 64 Iowa, 38. APPENDIX. 253 " The case of Weltoii v. The State of Missouri was that of a vender of sewing machines not manufactured in the state of Missouri, and who was convicted of violating a penal statute of the state of Missouri, requiring all persons going from place to place and selling goods, wares and merchandise, within the state, not the growth, produce or manufacture of that state, except books, maps, etc., to take out a license and to pay a certain sum tlierefor. The court held the act was a restraint upon inter-state commerce, and as such violated that provision of the Consti- tution of the United States that gave to Congress the exclusive power to regulate commerce be- tween tne states. The case of Ward v. The State of Maryland, 12 Wallace, 423, is, however, more in point. That was an act of the legislature of Maryland attempting to tax non-resident mer- chants doing business within the state, according to a schedule based upon their average stock in trade. The tax was in the form of an annual license, varying from fifteen to one hundred and fifty dollars, according to the amount of stock in trade. ^f w tF "JF * "Tr "TP "'t •?? 254 APPENDIX. " Some of the states have no provisions at all in their constitutions prohibiting monopolies, but the organic law of Iowa is very specific. Both sections 1 and 6 of the Bill of Rights in letter and spirit forbid, I think, such legislation as this. "The right to acquire, possess and protect propert}^ is declared to be an inalienable right. To justify, therefore, the legislature prohibiting a man from employing another, or from being employed by him, a public necessity must exist for such a prohibition. It must not, in my judg- ment, be a theoretical, imaginary or possible ne- cessity. To admit of this is at once to fritter away the protection of the citizen intended by the Constitution. To make the legislature the exclusive judge of the existence of such a neces- sity is to make omnipotent for evil the very power that the Constitution intended to restrain. " Section 6 prohibits the granting to any cit- izen or class of citizens privileges or immunities which, upon the same terms, shall not equally belong to all citizens. " It will not do to say that any mental or literary qualification may be prescribed, and that if the citizen does not come up to the APPENDIX. 255 standard he may be excluded from the exercise of an important inalienable right or privilege. " Equality before the law does not mean that men of certain intellectual attainments or mental endowments shall have certain rights, and those who fall short of them shall not exercise them. If college graduates alone were permitted, under the statute, to organize corporations for pecun- iary profit, the court would undoubtedly hold the statute unconstitutional. " And yet it is expedient that a certain amount of intelligence should be possessed by those who undertake the management of great enterprises. But if we admit of the educational standard in one trade or profession, upon what theory can you refuse to apply it in any other ? " The arbitrary character of the law is further illustrated in the provision that it shall not be construed to prevent the sale of patent or pro- prietary medicines. "The veriest quack, whether resident or non- resident of the state, may compound the most worthless or injurious nostrums, and by public prints or by means of medical almanacs, recom- 256 APPENDIX. mend and advertise them as remedies for all the ' ills that flesh is heir to,' and no attempt is made to prevent or regulate 'this. But however intelli- gent the proprietor or meritorious his compound, if he is guilty of a personal interview with the patient, and attem})ts to tell him what is the matter, and which of his advertised compounds will be appropriate to his case, the ' public health ' requires that he shall be fined or imprisoned. In other words, the law justifies and encourages the use of patent medicines, so long as the people are willing to go it blind and take this or that remedy on their own unaided judgment or guess ; but the proprietor nor any other man, save a licensed physician, may not tell them what to take or w^hat to reject. And why this strange anomaly and inconsistency ? Merely because the druggist has his profits and pecuniary gains out of the patent medicines, and this is the ' tub to the whale ' that the projectors of the scheme give to the druggist to secure his influence to sustain the monopoly. The same is true of Colfax water, or mineral waters from flowing wells or springs. It is another concession to buy off opposition to the monopoly. Yet all these features of the law APPENDIX. 257 demoDstrate the fact that its provisions are arbi- trary restraints, not founded on any reasonable or logical theories of protection to the public health. "Upon its face the act concedes there is no standard of practice, and every candid man must acknowledge that in the present stage of medical science, learned men are further than ever from agreeing upon any standard for the theory and practice of medicine. This law provides for and contemplates the granting of license to men of different schools, opposite and antagonistic in their theories and practice, for the sole purpose of securing the exclusion of others from practice, who are counted out only because it is not necessary, in order to secure the monopoly, to count them in. "That the allopath physician on the board of health, if exercising his own judgment as to the fitness of the applicant to practice medicine, would exclude the homoeopath, the hydropath and the eclectic, no one can doubt, unless he be- lieves the allopath is a hypocrite and does not believe in the teachinGcs of his school ; and that the homoeopath and eclectic would, in like man- 258 APPENDIX. ner, exclude the allopath with his alleged ' min- eral poisons,' must also be conceded. Why, then, do these men agree to forego their judgment and conscientious convictions of what is best for the public health ? There is only one answer, and that is, simply because their combined influence is necessary to exclude the specialist, the itiner- ant, the non-resident, the clairvoyant, the faith cure, the mesmeric, the magnetic and the mid- wife. '* Forty 3^ears ago the allopath would have scouted the idea of toleratins; these other schools of medicine. Under the legislation of a few years ago and under the decisions of boards of examiners, composed of their schools, the eclectic and Thompsonians were excluded and were fined and imprisoned by the courts : State v. Thomp- son, 15 Wend. 395. " But things have changed. Now the gentle- men of the old school find among the most intel- lig-ent and educated classes those who believe in and patronize the other once despised and perse- cuted schools, and in this law they make com- mon cause with quite a number of them, to per- secute, fine and imprison all who are not yet suffi- APPENDIX. 259 ciently seated in the public confidence and esti- mation to compel recognition. And the eclectic, whose brother is sent to prison in West Virginia, with his diploma in his pocket, is hand in glove in Iowa with the persecutors of his brother in Virginia, because in this state he has secured a position on the board of health, and he is ready now to fine and imprison the magnetic, the faith cure, the non-resident, the itinerant, or any other man that the legislature will allow him to lay violent hands upon. "A monopoly is defined by Bouvier to be ' an institution or allowance by a grant from the sovereign power of the state by commission, let- ters patent, or otherwise, to any person or cor- poration, by which the exclusive right of buying, selling, making, working or using a thing is given.' " In the case 99 N. Y. 386, the court held that a statute to permit the fraudulent sale of imita- tions of butter and cheese is constitutional. " But the legislature went further and enacted another law to prohibit the manufacture of any article intended to take the place of butter with- out reference to the question of fraud or imposi- tion, and the latter act was held unconstitutional. 260 APPEin)IX. " The court says : ' Measures of this kind are dangerous even to their promoters. If the argu- ment of the respondent in support of the absolute power of the legislature to prohibit one branch of industry for the purpose of protecting another with which it competes can be sustained, why could not the oleomargarine manufacturers, should they obtain sufficient power to influence or control the legislative counsels, prohibit the manufacture or sale of dairy products ? "Would arguments then be found wanting to demonstrate the invalidity under the Constitution of such an act? The principle is the same in both cases. The numbers engaged upon each side of the controversy cannot influence the question here. Equal rights to all are what is intended to be secured by the establishment of constitutional limits to legislative power, and impartial tribu- nals to enforce them.' "Justice Bradley, of the Supreme Court of the United States, in the slaughter-house cases, 1(5 Wallace, 116, uses the following language : ' Rights to life, liberty and the pursuit of happi- ness are equivalent to the rights of life, liberty and property. These are the fundamental rights APPENDIX. 261 which can only be taken away by due process of law, and which can only be interfered with, or the enjoyment of which can only be modified by lawful regulations necessary or proper for the mutual good of all ; and these rights, I contend, belong to the citizens of every free government. For the preservation, exercise and enjoyment of these rights, the individual citizen, as a necessity, must be left free to adopt such calling, profes- sion or trade as may seem to him most conclusive to that end. Without this right he cannot be a freeman. This ris^ht to choose one's callinoj is an essential part of that liberty which it is the object of government to protect : and a calling, when chosen, is a man's property and right. Liberty and property are not protected where these rights are arbitrarily assailed.' "In the same opinion, page 120, he says: * The granting of monopolies or exclusive priv- ileges to individuals or corporations, is an inva- sion of the right of others to choose a lawful calling, and an infringement of personal liberty. It was so felt by the English nation as far back as the reigns of Elizabeth and James. A fierce struggle for the suppression of such monopolies, 262 APPENDIX. and for abolishing the prerogative of creating them, was made and was successful. The statute of 21st James, abolishing monopolies, was one of those constitutional land-marks of English lib- erty which the English nation so highly prize and so jealously preserve. It was a part of that inheritance which our fathers brought with them. This statute abolished all monopolies except grants for a term of years to the inventors of new manufactures. This exception is the ground- work of patents for new inventions and copy- rights of books. These have always been sus- tained as beneficial to the state. But all other monopolies were abolished as tending to the im- poverishment of the people and to interference with their free pursuits. And ever since that struggle no English-speaking people have ever endured such an odious badge of tyranny.' "The opinion of many other eminent jurists might be cited to the same effect, but I deem it unnecessary. *' To sum up my conclusions upon this law, they are briefly as follows : ^' First. The provision of the act attempting to discriminate in favor of those who have re- APPENDIX. 263 sided and practiced five years within the state, and to exclude physicians of like experience who have resided and practiced in other states, is void as to citizens of other states, and clearly violates the provisions of the Constitution of the United States. " Second. The provision requiring that a phy- sician who has practiced five years in the state, must have practiced three years in one locality, is an unjust and arbitrary discrimination and is a violation of articles 1 and 6 of the Bill of Rights of the Constitution of the State of Iowa. " Third. The same is true of the provision that makes a distinction founded on sex, as to those who now practice midwifery. " Fourth. The same is true as to those who prescribe mineral waters from flowing springs or wells, — I don't think it matters whether the well flows or otherwise. I find authorities, which, in my judgment, are not well considered or well grounded in reason, upon which it is possible this law may be sustained by our Supreme Court in its o^eneral features, but I am clearlv of the opinion that the entire act is intended to establish and procure for certain schools of practice a 264 APPENDIX. monopoly, founded merely on arbitrary legis- lative power and not on principle, and that it ought to be declared void." TABLE OF CASES. A. Page. Academy v. Allen 280 Adams v. Stuart 236 Almon V. Nug-ent 214 Allen u Merchants' Bank 228 Allen V. Richards 230 Alcott V. Barber 198 Anderson v. Hamilton 282 Arnold v. Richmond Iron Works 116 B. Bank v. Rutland 6 Bailout). Prescott. 216, 229 Baler v. State 122 Banks v. Goodfellow = 86 Bartholomew v. Jackson 232 Banks v. Goodfellow 87 Bailey u State 123 Baxter -y. Abbott 24 Barnard v. Means 215 Bartholomew v. Jackson , .... 232 Bank v. Wheeler 228 Barley v. State. 83 Bales v. State 84 Bakei' v. People 187 Bird u Bird 54 266 TABLE OF CASES. Page. Baker v. Commonwealtli 203 Blake v. People 6 Bierce v. Stoking. 30 Beene v. State 203 Belirons v. McKinze 96 Beals V. Lee 94 Bennett v. Lockwood 222 Bond V. Bond 84 Boyland v. Meeker 87 Boyd V. Sappington 231 Boyce v. Smith , 94 Boardman v. Woodman 31, 34, 86, 87 Boyle V. Winslow 217 Bovard v. State 110 Bower -y. Smith 236 Boswell V. Com 117 Bronson v. Hoffman 110 Bradley -y. Fisher 203 Briggs V. Taylor 210 Brannatyne 'y. Brannatyne 85 Brown v. Payson 146 Brice v. State 192 Brooks V. Barrett 88 Bradley v. Fisher 202 Burrows v. Burrows 88 c. Carpenter v. Calvert 54 Carpenter v. Blake 208, 210 Carter v. Boehem 7 Cantling v. Railroad Co 7 Carter -y. State 122 TABLE OF CASES. 267 Page. Carter v. State 84 Caleb-y. State 10, 31 Childsu Drake •. . 224 Charce v. State 131 Choice V. State ,.-63, 117, 119, 131 Christee v. Sawyer 280 Chandler v. Barrett 93 CiWjv. Cilly 93 Clark V. "Fisher 54, 87 Clark u State 95 Clapp'y. FuUerton 31, 86, 87 Commonwealth v. Rogers 96 Commonwealth v. Blair 185 Commonwealth v. Adams v. . . . 185 Commonwealth v. French 119 Commonwealth v. Mosler 61, 110, 114 Commonwealth v. Thompson 210 Commonwealth v. Rogers 18, 23, 33, 43, 47, 84, 94, 110 Commonwealth ^■>. Heath 62 Commonwealth v. Meriam 98 Commonwealth v. Heath 97 Commonwealth v. Sturtevant 8 Commonwealth v. Hawkins 119 Commonwealth v. Eddy 94 Commissioners v. Brewing-town 233 Commonwealth v. Wood 148 Commonwealth v. Pierce 193 Commonwealth v. Hawkins 129 Commonwealth v. Sturtevant 81 Commonwealth v. Wilson 31 Commonwealth v. Taylor 186 Couch V. Couch 54 268 TABLE OF CASES. Page. Cookv. Ellis. 224 Cooper V. Railroad Co 231 Crolires v. Stark. 54 Cobb V. Superior Judge 204 Corwin v. Walton 224 Commissioners v. Chambers 233 Coben v. Insurance Co 137 Colton V. Ulmer 93 Creigbton v. Toledo 229 Craig V. Chambers , 222 Crane v. McLaw 236 Crosby v. Berger 140 Crowningshield v. Crowningshield 318 Creely vr Ostrander 54 Cummings v. Nichols 230 D. Daniel v. Daniel 54 Davison v. Davidson 233 Davis V. State 17 Dauson v. State 119 De Wolf v. Chicago 230 Dew V. Clark 75 Dennett v. Dennett , 84 Dexter ?). Hall 23 De May 7J. Roberts 218 Dixon V. Parmelee 138 Dilleber v. Home Life Insurance Company 142, 143 Dickinson v. Fitchburgh 9 Doane v. Badger 232 Dorwin v. Potter .^ 222 Duffield V. Morris 86 TABLE OF CASES. 269 Page. Dunn V. People 163 Diirkee v. Leland 140 Dunbar v. Williams 231 E. Eckhardt v. People , 185 Eckert v. Flowey 23, 31 Edington v. Life Ins. Co 140, 142 Emerson v. Gas Co 6 Evarts v. Adams 232 Evans v. People 148, 153, 163 Express Co. v. McVeigh 228 F. Fairchild v. Bascomb 8, 17 Farrell v. Brennan 31, 34 Farrer v. State 63, 94 Fletcher v. Dangerfield 203 Flannigan v. People '2, 117 Flannagan v. People 131, 181 Flack V. Null 146 Ford V. Ward 231 Foster v. Means 90 Fraser v. Tupper 8 Freeman v. People 34, 63, 97, 98, 110, 120 Fort V. Hayne 146 Finch D. Gridley 237 Gabriel v. Baii- 93 Garland v. Wholeman 125 Gant V. Thompson 116 270 TABLE OF CASES. Page. Gardner v. People 10 Gay V. Mutual Insurance Compaay 12 Gaines v. Commonwealth 10 Gerish v. Nason 93 Gehrke v. State 31 Geiselman v. Scott 223 Gibson v. Williams 7 Gove V. Gibson 116 Grattan v. Life Insurance Company 143, 145 Grabill v. Barr 93 Grandier v. Reading- 233 Guthrie v. Pierce 93 H. Haire ik Reese , 214, 215 Hadley v. Watson 224 Harrison v. Rowan 52 Harrison v. Berkley c 221 Hardy -y. Merill 6, 8, 31, 80 Hamilton v. McPherson 222 Hapg-ood V. Houghton 230 Harvey v. Chase 86, 87 Harvey v. SuUens 93 Hei-tzog V. Hertzog" 232 Heald v. Thin^ 24 Hester v. State 115 Hendrickson v. Drake 224 Higgins V. Carleton 87 Higgins V. Higg-ins 54 Hibbard v. Thompson 223 Hoopingarner v. Levy 215 Hovey v. Hovey 84 TABLE OF CASES. 271 Page. Holmes v. Halde 189 Howard v. Grover 210 HofFs V. People 94 Hoppes V. State 61, 114 Hunt V. People 162, 163 Hurley v. Van Wag-oner 230 Hundley v. State 94 Humphreys v. State 13, 119 I. Inhabitants v. Henshaw 137, 141 J. Jackson v. French 146 Jackson v. Texas 202 Johnson v. Moore 75 Johnson v. Johnson 141 Jones V. Quincey 230 Jones V. Fay. . 217 Joyce V. Insurance Company 7 Juzan V. Toulman 95 K. Keenan v. Commonwealth 119 Kenny -u. People 117,119,131, 229 Kelogg- V. Kelog-g- 140 Kin'ne v. Kinne 88 Klopper V. Bromme 224 Klingensmith -y. Kepler 201 L. Lamphier v. Phipos 214, 215 Landon v Humphrey 210 272 TABLE OF CASES. Page. Landsberg-er v. Gorham 146 JLang V. Whidden 116 Law V. Railroad 230 Leighton V. Sargent 15,210, 228 Lee -y. Lee 232, 233 Levee Com. v. Harris 232 Lohman v. People , 163 Lowder v. Lowder 54, 87 Lonergan -y. People 83,118,123, 129 Luce V. Dorcliester Insurance Company . . . , 8 Lucas V. Parsons 88 Lynde v. Judd 140 Lynch v. Onondaga Salt Company 229 M. MacNevins v. Lowe. 210 McAlister -y. State... 17, 43, 60, 81, 96 Mclntyre v. People .„. 119 McCm-ry v. Hooper 90 McCandless v. McWha 208, 215, 222, 223 McGrew v. Stone 222 McLalon v. Adams 208 Marsh -u. Davidson 191, 1^8 Martin v. Fox 230 Maconahay v. State 122 Matter v. CofFman * 93 Medway -?). Croft 41 Mitchell V. Commonwealth 153 Mitchell -y. Kingman 116 Morse v. Crawford 96 Mori'is V. Stokes 93 Monegan v. People , 162 TABLE OF CASES. 273 Page. Muldowney v. Illinois Central Railroad 8 Hunger v. Mung-er 23^ Mumford v. Brown 232 Musser v. Chase 210 N. Negi'O Jerry v. Townshand 17 New Eng-land Glass Co. v. Lovell 8 Nowell V. Wright 8 0. O'Brien v. People 83, 119, 123, 129 Ogden V. Saunders 228 O'Hara v. Wells 214 P. Parker v. Carter 146 Page V. Parker 8 Patten v. Wiggin 107, 206 Patterson v. People 121 Peopleu Rogers 119, 131 People -y. Davis 162, 163 People V. Lohman 163 People V. Palmer 201 People V. McCann , 17 People V. Kline 1 31 People V. Robinson 11, 115, 118 People V. Hammill 118 People V. Coffinan 63, 97 People V. Benjamin 140 Percival v. Nevilla 232 People V. Meyers 93 People V. Sprague , 97 274 TABLE OF CASES. Page. People V. Murpliy 145 People V. Schanchez 23 People -y. Stout. 139 People V. Lohman 205 People i). Moett 131 People V. Stockham 162 People V. Eastwood 18 People V. Vedder 185 People V. Montgomery 131 Pigman v. State 119 Pirtie v. State Potter V. Warner 210 Potter V. Virgil 228 Potts V. House 54 Patten v. Wiggin .210, 215 Pond?^. State 110 Powers V. Russell 218 R. Raynor v. State 198 RaflFerty v. People 119, 131 Ramage v. Ryan 7 Rex V. Oxford 48, 60, 62 Rex V. Goode 43 Reg. V. Pate 64 Reg. D. Barton 63, 64, 114 Rex u Spiller 191 Rex V. Ellis 191 Rex V. Van Butchell 191 Rex V. St. John Long 191 Rex V. TVilliams 191 Rex V. Long 208 R. V. Wright 178 TABLE OF CASES. 275 Page. R. V. Thomas 117 R. u Brain 174 R. u Trilloe 174 R. V. Brain , 178 R. v. Meakin 118 R.V. Goode 62 R. V. Barton 62 R.v. Sellie 178 Reg. V. Townley , 114 Realu People > 31, 83, 123 Reg-. V. McNaughton 99, 115 R. -u. Hig-ginson 17 R. V. Francis. : > 17 R. V. Richards 17 R. V. Meakin 117 R. V. Crutchley 174 R. V. Sellis 174 R. V. People 118 R. V. Enoch 174 R. -y. Meakin 122 R. V. Crutchley 178 R. V. Watson 122 R. V. Runie 122 Reynolds v. Graves 210, 215 Richardson v. Strong 94 Roe-y. Taylor 93 Rogers v. Walker 86, 93 Roberts v. Mason 224 Rutherford v. Morris 54, 93 S. Sanchez v. People 110, 131 Scott u. Com 61, 114 276 TABLE OF CASES. Page. Secoa'y. True. 228 Saxtonu Stowell 203 Seaman's Friend Society v. Hopper 86 Sbannahan v. State 81 Sherman v. Sherman ^ 138 Shannahan v. Commonwealth 119 Shear v. Redf 208 Shater v. People 63 Sibley v. Waffle... 146 Slemmer v. Weight 201 Slater v. Baker 208 Smith V. Watson .. .^. 231 Small V. Howard 210 Smith -y. Tracy 198 Smith V. Beatty 95 Smith V. Lane 198 Smith V. Commonwealth. 119, 122 Smothers v. Hanks 210, 214, 215 Sowers v. Pumphrey 84 State 'y. Birdsall 122 State u Bullock 119 Stover V. Bluehill 222 State V. Hyer 187 State V. Hunting 97 Stackhouse v. Horton 83, 131 State •«. Hayes... 9 State V. Harlowe 115 State V. Fitzgerald 186 State V. Felter 61, 94, 114 State -y. Gedicke 187 State V. Knight 30 State V. Klinger 17, 31, 34, 82 State V. Lawrence 62, 94, __ 97 TABLE OF OASES. 277 Page. States Harlow 1^^ Stout V. Proctor "•- • ^03 States?. Reddick ^^ State V. Reidemire ^^ State -y. Murphy 1^2 State V. Sherwood • 1^'^ Stated). Spencer 4,31, 60, 62, 96, 115 State u Stokeley ^'^ State 'y. Schultz • 1^^ State -y. Sharp • 200 State -y. Neeley 11^ State V. Windsor - 1*^' ^^ State?). Wilson 1^2 Stanton v. Weatherwax «-• • • ^'^ State -y. Russell ^^^ State Bank v. McCoy ^^ Stackhouse v. Horton ^^ Stevens v. State 61, 114 Swan V. People ^^* T. Trumbull v. Gibbons 87, 96 Todd 'y. Myers 216 Taylor v. Kelly 83, 86, 87 Teal V. Barton 8 Thompson v. Kyner 93 Thomas v. Kyner ^4 Terry v. Buffing-ton ^4 Taylor v. State 188 Teft-y. Wilcox , 210 Taylor v. Foster 146 Tracy v. Sackett 9" Thomas v. Stump -« ^4 278 TABLE OF CASES. U, Page. United States -y. McGlue 17,83, 123 United States -u. Clark 83, 123 United States v. Holmes United States u Drew 83, 122, 132 V. Vance v. Com 96 Van Arman v. Boynton 230 Van Alstyne v. Hunter .... 54 w. Watson V. Ladoux 232 Walkeru Brown. 229 Watsons State 163, 185 Williams v. Cameron 96 Westover v. Etna Life Insurance Company 145 Wetherbee v. Wetherbee 17, 24 Weems v. Weems 31 Wenger-y. Calder 226 Wendel v. State 198 Weeks?;. Holmes 230 Westover v. Mtna, Life Ins. Co 142 White V. Ballou 8 Willis V. People 62, 110, 115, 131 Wilkinson v. Mosely 18 Williams -iJ. Breakell 231 Wilson -y. State 148 Wilson V. Reg 163 Winans^. New York & E. R. R. Co 9 Woodbury v. Obear 16, 23 Y. Yoe V. McCord 54, 85 z. Zimmerman 1). Moeri son 198 TO FIELD'S MEDICO-LEGAL GUIDE. •^•^^^' SEC. ABORTION. (See Miscarriage ; Infanticide.) defined and explained 73 meaning- of the term " quick with child " 73 common, under various circumstances 73 miscai'riag-e, what it is 73 maternal causes of 74 foetal causes of , 75 may be partly maternal, partly foetal 75 natural and innocent causes of 76 artificial and innocent abortion 77 premature labor 77 statutes relating- to the subject 78 when premature labor may be properly induced.. 79 chief methods employed to produce 78 ci-iminal ; methods of producing 79 statutory provisions on the subject 80 construction of statutes on the subject 81 in case of death resulting from 82 statutes relating to 83 signs of, during life 84 280 INDEX. ABO'RTIO'N— Continued;. sec. general symptoms of . 84 signs on examination after death 85 examination of the foetus 86 summary of matters to be observed on examina- tion as to 90 where the woman is alive 90 dead 90 indictments for, under statutes 90 statutes of New York on the subject 91 Texas , 91 Iowa .' 91 Massachusetts 91 Illinois 91 ALCOHOL, its uses and effects 33 psychological effects 34 ALCOLOLISM, defined 85 forms of insanity caused by 35 symptoms similar to quininism 36 delirium in general 37 legal relations of 38 AMENTIA. (See Unsoundness of Mind ; Insanity.) C. CIVIL LIABILITY, of medical men for malpractice 100-107 malpractice ; various kinds of 100 liability for, in general 101 INDEX. ii81 CIVIL JjlABlLlTY— Continued. sec. skill required of physician or surgeon 102 ordinary skill required 102 not the highest skill 102 care and skill required, illustrated 102 highest degree not required 103 implied duty of 104 general principles applicable to dentists 105 under statutes 105 in case of impropriety 106 proof of malpractice 107 matters in defense , . 108 in case of contributory negligence 109 punishment for the crime no defense 110 the measure of damag-es ; rule Ill COMMUNICATIONS PROTECTED. (See Privileged Communication. ) generally when made to a professional person by client or patient 66-72 by statutes 70 in case of surgeons 72 COMPENSATION, . contract for services 112 may be express or implied 112 when express 112 implied 112 common presumptions relating to 113 amount of 113 for services rendered at request of a third party. . 114 in case of intrusive and voluntary services 115 measure of the value of 116 282 INDEX. COMPENSATION— Cow^w^^e^?. sec. in case of judgment for services 117 generally bar to action for malpractice 117 statutes regulating 118 requiring diploma 118 certificate 118 diploma, how proved 119 CRIMINAL LIABILITY, for negligence or misconduct 92, 93 statutory provisions on the subject 92 general liability at common law 93 for practicing without license 94-96 provisions of statutes on the subject 94 penalties imposed 95 in case of intoxication 96 for misconduct of attorneys 97 attorneys, duty of, to the court 98 suspension of 98, 99 D. DAMAGES, matters in defense or mitigation of 108 in case of contributory negligence 109 the measure of 110, 111 DELIRIUM TREMENS, cause of ' . . . . 39 symptoms of . . . . ^ 40 general characteristics of 40 hallucinations of 40 delusions of 40 INDEX. 283 DELIRIUM TKEMEJ^^S— Continued. sec. legal relations of 41 excuse in criminal cases , 58 DEMENTIA. (See Insanity.) distinguished from amentia 20 legal relations of 21 in case of wills 21 DENTISTS. (See Criminal Liability.) civil and criminal liability, the same as surgeons.. 105 DIPLOMA. (See Criminal Liability.) general provisions of the statutes requiring 94 criminal liability for practicing without 95 requirements of statutes relating to 95 DREAMING, illusions and delusions common to 59 legal relations of 60 DRUNKENNESS. (See Insaitity ; Alcoholism.) legal responsibility in case of 56, 57 E. EXPERTS. (See Expert Testimony.) opinions of medical, as to sanity 5 on hypothetical cases 5 general doctrine in respect to 5 rule where it rests upon personal examination, 6 when facts should be stated 6 governmental, recommended 7 general consideration of 7 284 INDEX. 'EXPBRT^— Continued. sec. opinion of non-experts 8 wlien proper 8 distinction between, and non-experts 9 non-experts g-enerally confined to facts 9 EXPERT TESTIMONY. (See Evidence ; Experts.) in general 3 opinions of medical men 3 scientific men '. 3 in other cases 3 as to value, etc 3 not allowed as to matters of common knowl- edge 3 when allowed as evidence 3 unsatisfactory character of 4 as to sanity 4 cause of death 4 general consideration of 4 conflict of opinions in important cases 4 opinions as to sanity 5 on hypothetical cases 5 value of 5 cases illustrating 5 what it depends upon 5 where it rests upon personal examination .... 6 medical, should be appointed by government .... 7 reasons stated , 7 opinions of non-experts, when proper 8 distinction between expert and common witnesses.. 9 non-experts cannot give an opinion upon hypotheti- cal case 9 cases illustrating 9 in criminal cases 9 INDEX. 285 I. INSANITY, (iee Unsoundness of Mind.) sec. varieties of 10 defined and described 11 instances of , 11 amentia ; what is ementia , 12 imbecility defined 13 cretinism 14 idiocy 15 imbecility 16 as a civil and criminal defense 17, 18 g-eneral moral imbeciles 19 dementia disting-uished from amentia 20 degrees of 20 senile 20 illusti-ation of 20 legal relations of 21 in case of wills 21 mania defined 23 general 23 character of 23 intellectual 24 partial or monomania 25 delusions and hallucinations 26 moral and effective 27 morbid impulses 27 homicidal 28 as a defense , 28 kleptomanic, a propensity to stea 29 pyromania, a x^i'opensity to burn 31 as a defense not favored 29, 32 delirium in general 37 286 INDEX. INBANITY— Continued. sec. legal relations of 38 delirium tremens 39 symptoms* of ■ 40 legal relation of. 41 civil acts of persons subject to 42 in case of wills 43 conduct of the testator 44 test of capacity to manage business 45 to contract , 48 burden of proof , , 46 general presumptions 47 liability for torts .... 49 as a defense against crime 50 insane delusions as a defense 51 irresistible impulse , 51 McNaugh ton's case 51 common sources of , 52 test of capacity 53 impulsive mania 54 defense 55 responsibility in case of drunkeness 56 drunkenness as a mitigation 57 delirium tremens as an excuse ^^ 58 delirium 59 illusions and delusions 59 dreaming, legal relations of 60 somnambulism, legal relations of 61, 62 statutory provisions relating to mental unsound- ness 63 construction of statutes 64 rules suggested on examination 65 INDEX. 287 IMBECILES, SBC. in general , 16 civil and criminal liability of 17 not generally liable for crimes 18 moral T. 19 IMBECILITY. (See Insanity ; Unsoundness of Mind. ) wliat is 16 an excuse in criminal cases 18 INFANTICIDE. (See Abortion ; Fceticidb.) distinction between, and foeticide 87 evidence of life subsequent to birth 88 modes of destroying- a child after birth 89 L. LICENSE, OR DIPLOMA. (See Criminal Liability.) practice without, prohibited 94 a crime 95 M. MANIA. (See Insanity.) in general 21 defined 22 general 23 intellectual 24 partial, or monomania 25 delusions and hallucinations 26 moral and effective 27 morbid impulses 27 homicidal 29 kleptomania 32 288 INDEX. MALPRACTICE. (See Criminal Liability ; Civil Liability.) sec. civil liability for 100-107 burden of proof of 107 MENTAL CONDITION. (See Insanity.) rules for determining" 65 MEDICAL ETHICS, code of, in New York 120 general rules .• 120 MEDICAL WITNESSES. (See Witnesses.) compulsory attendance of 1 by subpoena 1 fees of 1 excuse for non-attendance 1 oath of 2 test of competence of. 2 religious belief of. 2 statutes regulating subject 2 0. OATHS. (See Witnesses.) religious belief required 2 generally unnecessary 2 P. PROTECTED COMMUNICATIONS. (See Privileged Communications. ) PRIVILEGED COMMUNICATIONS, at common law between attorney and client 66 under statutes 67 INDEX. 289 PRIVILEGED COMMUNICATIONS— Continued. sec. protection of, made to priest or clerg-yman 68 may be waived constrnction of statutes on the subject 69 general rule applied by statute to other professions, 69 applicable to physicians and surgeons 70 construction of the statutes 70 applicable to all professions 71 illustration of, in case of physicians and sur- geons 72 8. SOMNAMBULISM, common manifestations of 61 legal relations of 62 STATUTORY PROVISION. (See Insanity.) on the subject of insanity 64 u. UNSOUNDNESS OF MIND. (See Insanity.) varieties of ; 10 defined and described 11 cases illustrating the subject 11 amentia , 12 imbecility 13 cretinism 14 idiocy , 15 imbecility 16 liability of imbeciles 17 for crimes 18 of moral imbeciles 19 290 INDEX. UNSOUNDNESS OF MIND— Continued. sec. dementia distingfuished from amentia 20 senile 20 legal relations of 21 in cases of wills 21 mania defined 22 general 23 character of 23 intellectual 24 partial 25 delusions and hallucinationa 26 moral and effective 27 homicidal 28 kleptomania 29 pyi'omania, or propensity ^to burn 31 not favored as defenses 32 delirium in general 37 legal relation of 38 delirium tremens 39 symptoms of 40 characteristics of 40 legal relations of. «= 41 civil actions of persons of 42 in case of wills 43 in case of testators 44 conduct of 44 test of capacity to manage business 45 conduct 45 doctrine as to the burden of proof 46 general presumptions 47 test of capacity to contract 48 liability for torts 49 as a defense to a criminal charge 50 INDEX. 291 UNSOUNDNESS OF MmD— Continued. sec. insane delusions 51 irresistible imj)ulses 51 common sources and manifestations of 52 test of capacity for criminal responsibility 53 rmcontrollable impulse 54 defense on the ground of 55 in case of di-unkenness 56 drunkenness as a mitigation of criminal acts 57 delirium tremens as an excuse 58 dreaming-, illusions common to 59 legal relations of 60 somnambulism, manifestations of 61 legal relations of 62 statutoi'y provisions relating to 63 construction of 64 • rules suggested on examination for 65 WITNESSES. (See Medical Witnesses ; Experts.) compulsory attendance of 1 by subpoena 1 fees of. 1 excuse of, for non-attendance 1 the oath 2 test of competence of 2 religious belief of 2 statutes relating to 2 WILLS, When voidable for incompetence of testator .... 21, 43 Date Due '■2-7-5 •) \*^'S' > k