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MEDICO-LEGAL REPORTS-TECHNICAL TERMS.

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cases for professional purposes, to use exaggerated language. Thus it may be observed in the description of an ordinary post-mortem examination, the lining membrane of the stomach is described as being "intensely" inflamed, or some part is "considerably" injected, or a cavity is "enormously" distended. Expressions thus loosely employed, convey to the legal mind a widely different meaning from that intended by the reporter. They create also, if withdrawn or modified, great difficulty in evidence, and at the same time they place the witness in an undesirable position before the court. On the other hand, if retained, they may render the facts insusceptible of explanation upon any theory of natural disease. Such descriptions obviously imply a comparison with similar conditions in numerous other dead bodies; but what is the standard by which they are really measured, and what opportunity has the witness had of creating such a standard from his own experience? In general it will be found that such expressions have been used, without proper consideration, from a habit acquired by the writer in reporting cases for the information of medical men only. Let him who is inclined to use them, bear in mind that barristers look much more closely to the strict meaning of words than medical men, and that they are always disposed to distrust the judgment of one who cannot speak or write without resorting to the use of the superlative degree.

The free use of technical terms in drawing up reports should be avoided. Putting aside those cases in which a medical man believes that he is displaying his erudition by the selection and use of such terms, there can be no doubt that the greater number of medical practitioners fall into this practice from mere habit. They write as if they were addressing the report to some medical society, instead of a coroner and jury who have never in their reading or experience met with such terms, and to whom therefore they are unintelligible. In a report, which was submitted to the author for explanation, on the appearances in the body of a man who had suffered from chronic insanity, the following passage occurred :-"The only morbid appearance in the brain was an atheromatous deposit in the Pons Varolii, near the situation of the locus niger." In another document the reporter stated, for the information of a coroner's jury, that the "integuments of the cranium were reflected, and the calvarium was exposed." If a reporter will use such terms as these or others of a similar kind, such as "parietes of the abdomen," "epigastrium," "hypertrophy of the liver," when it would require no more trouble to put what he means in plain English, he must be prepared to have his meaning perverted or wholly misunderstood. Setting aside the jurors, it may be observed that educated persons, such as coroners and magistrates, do not commonly include professional terms within the range of their studies. There are but few of them who understand the difference between perineum and peritoneum, or the meaning of the words hemispheres of the brain, pia mater, puncta cruenta, corpora quadrigemina, centrum ovale, etc. They are not likely to know the difference between the cardia and pylorus, nor the nature or situation of the duodenum, jejunum, ileum, or cæcum, and are as ready to consider them to be parts of the liver or urinary bladder as of the intestines. On one occasion, a judge asked for an explanation of the meaning of the term "alimentary canal;" on another he was entirely ignorant as to the meaning of "verdigris." A slight consideration will show to any medical practitioner, that refined professional language is wholly misplaced in a report which is intended to inform and convince the minds of ordinary men upon plain matters of fact.

The last point which calls for comment in reference to medical reports,

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MEDICO-LEGAL REPORTS.

is the loose manner in which facts, comments on facts, and hearsay statements are sometimes found blended. If a reporter takes care to separate facts from comment, his report is admissible, and may be read at the inquest or trial as evidence. The facts are for the jury-the comments upon the facts, introduced by the reporter, may or may not be correct and are not evidence. Their correctness or relevancy to the case will be elicited in the cross-examination. As a rule, nothing should be entered in a report which is not connected with the subject of inquiry, nor except it has actually fallen under the observation of the reporter. The introduction of statements made by others, or of circumstances which have come to his knowledge through public rumor, should be carefully avoided.

Upon the medical report, and such evidence as may be required to explain it, an accused person may be committed, either by a coroner or magistrate, for trial at the Assizes. In the first stage of the proceedings, under these circumstances, the medical witness goes before the grand jury, and there, after the administration of an oath, he is required to make a general statement of what he knows of the matter. Such questions are put as may be necessary to elucidate the cause of death; and on the finding of a true bill, the accused is placed upon his trial before one of the judges of assize. According to the variable circumstances attending such cases, the medical evidence is called for at an early or late stage of the proceedings. When it is at all doubtful whether the cause of death was owing to any criminal act, it is called for at the commencement of the case in order to lay a foundation for further inquiry.

It is necessary that a medical witness should remember that copies of his report and depositions, either before a coroner or magistrate, are usually placed in the hands of counsel as well as of the judge, and that his evidence as it is given at the trial, is compared word for word with that which has already been put on record. There is reason to believe that this is not generally known to members of the medical profession, and thus it happens that either from failure of memory, want of accurate observation, or carelessness in giving preliminary evidence, medical witnesses have laid themselves open to severe censure, either by stating matters differently at the trial, or by giving a different complexion to the facts. Any serious deviations from what is on record will of course tell unfavorably for the witness, supply ample materials for a severe cross-examination, and form an excellent ground of defence for the prisoner. The witness's weakness is the prisoner's opportunity, and of course counsel for the defence will not lose the occasion of impressing upon the jury that a man who can on oath give two different accounts of the same transaction, is not to be believed on either.

[Dying declarations may be defined as statements of material facts concerning the cause and circumstances of homicide, made by the victim under the solemn belief of impending death, the effect of which on the mind is regarded as equivalent to the sanctity of an oath.

They are substitutes for sworn testimony, and must be such narrative statements as a witness might give on the stand, if living: 3 Russell on Crimes (9th Am. Ed.), 250; Wharton, Criminal Evidence (9th Ed.), § 276; Roscoe, Crim. Ev. (10th Ed.), 34; Greenleaf on Evidence (14th Ed.), § 158.

1. Dying declarations are admissible only in cases of homicide, where the death of the deceased is the subject of the charge, and the circumstances of the death are the subject of such declarations: Reynolds v. State, 68 Ala. 502; Hill v. State, 41 Ga. 484; Montgomery v State, 80 Ind. 281; Wright v. State, 41 Texas, 246; Hackett v. People, 54 Bar.

DYING DECLARATIONS.

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(N. Y.) 370; Hudson v. State, 3 Coldw. (Tenn.) 355; 3 Russell on Crimes (5th Ed.), 354.

2. The declarations must be made not merely in articulo mortis, but under the sense of impending death, without expectation or hope of recovery: Reynolds v. State, 68 Ala. 502; People v. Hodgson, 55 Cal. 72; State v. Darrand, 5 Oregon, 216; Dunn v. State, 2 Ark. 229; Hay v. State, 40 Maryland, 633; State v. Blackburn, 80 N. C. 474; 1 Greenleaf on Evidence (14th Ed.), 158; Tracy v. People, 97 Ill. 101; People v. Gray, 61 Cal. 164.

3. Dying declarations are admissible, even though others may not have thought the person making them would die: People v. Simpson, 48 Mich. 474; R. v. Mosly, 1 Mood C. C. 97; R. v. Peel, 2 F. & F. 21.

But not if the victim has any hope of recovery, however slight: 3 Russell on Crimes (9th Am. Ed.), 252.

Hope of recovery afterwards abandoned makes the dying declarations admissible: Swall v. Com. of Pa., 91 Pa. State, 304; Yong v. Com. (Ky.), 6 Bush, 317; State v. McEvoy, 9 S. C. 208; Mockabee v. Com., 75 Ky. 380; R. v. State, 12 Cox C. C. 108; State v. Kilgore, 70 Mo. 546; R. v. Hubbard, 14 Cox C. C. 505.

It is not essential, however, that the consciousness of impending death should be expressed by the dying man himself; it may be collected from the circumstances of the case, the nature of the wounds, or from expressions used by the victim: Com. v. Murray, 2 Ark. 41; Com. v. Williams, Ib. 69; State v. Gallick, 7 Clark (Iowa), 287; State v. Nash, Ib. 347; People v. Lee, 17 Cal. 76; People v. Ybarra, Ib. 166; Kilpatrick v. Commonwealth, 7 Casey, 198.

4. The dying declarations may be made by signs, by writing, or in any other manner of communication: Com. v. Casey, 11 Cush. 417; Jones v. State, 71 Ind. 66; R. v. Reddingfield, 14 Cox C. C. 341.

It is not necessary that the examination of the deceased should be conducted after any formal manner.

It is no objection that the declarations were obtained by pressing and earnest solicitations, or in answer to leading questions.

The jury pass upon the effect of the statements and their real value: 1 Russell on Crimes (5th Ed.), 360; Com. v. Casey, 11 Cushing, 417; R. v. Osman, 15 Cox C. C. 1; R. v. Woodcock, 2 Leach, 561; State v. Wilson, 24 Kansas, 189.

5. It does not matter if considerable time clapses after the declarations were made, if they were uttered under a sense of impending death, and without hope of recovery: 3 Russell on Crimes (5th Ed.), 355, 556; 1 Phillips's Ev. (10th Ed.), 245; Roscoe's Crim. Ev. (10th Ed.), 57; R. v. Bernadotti, 11 Cox C. C. 316.

6. Dying declarations must be confined strictly to the act of killing, and to the facts and circumstances relating to and attending it, which form a part of the res gesta.

They are inadmissible in relation to former or other transactions, not relating to the killing, or disconnected with the death of the victim: Reynolds v. State, 68 Ala. 502; Uroe v. State, 20 Ohio St. 460; West v. State, 7 Texas Appeals, 150; State v. Wood, 53 Vt. 560; State v. Draper, 65 Mo. 335.

The true test of the relevancy of the declarations is, as to whether the deceased could have testified to them as a witness in the cause, if living. They must be statements of actual facts, and not be mere expressions of opinion, or matters of belief: Shaw v. People, 3 Hun (N. Y.), 272; State v. Williamson, 67 N. C. 12; Reynolds v. State, 68 Ala. 502;

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McPherson v. State, 22 Ga. 478; People v. Wasson, 66 Cal. 538; People v. Taylor, 59 Cal. 640.

7. Before dying declarations are received in evidence it should be proved that they were actually made in expectation of impending death, and without hope of recovery. This may be shown by the nature of the injury, by what the injured person said, or by what the physicians and attendants said in his hearing, by the state of his mind, and by the facts surrounding the act.

It is not essential that the injured person should have stated, that the declarations were made in expectation of death, or that any one in his presence should have stated that his death was impending, or must follow: People v. Simpson, 48 Mich. 474; Ward v. State, 78 Ala. 441; State v. Patterson, 48 Vt. 308.

8. The question of the admissibility of the declarations is a judicial one, and is to be determined by the court from all the circumstances of the

case.

The province of the court is to pass upon the admissibility of the declarations. Their weight and effect are to be determined by the jury alone: Campbell v. State, 38 Ark. 509; Walker v. State, 37 Texas, 366; People v. Maine, 16 N. Y. 113.

9. Dying declarations may be given in evidence as well in favor of the prisoner on the trial as against him: Moon v. State, 11 Ala. 764; R. v. Scaife, 1 M. & Rob. 551; 3 Russell on Crimes (5th Ed.), 361, n.

10. Where a child is of intelligent mind, and fully comprehends the nature and effect of an oath, his declarations made under a belief of impending death are admissible: R. v. Pike, 3 C. & P. 598; R. v. Perkins, 2 Moo. C. & C. 135; 9 C. & P. 395; Wharton, Cr. Ev. (9th Ed.), § 290. 11. The deceased must be shown to have been in such a state of mind, at the time the declarations were made or signed, as to have had a full and clear understanding of the document he signed or of the declaration made: Winfield v. State, 15 Neb. 484; Mitchell v. State, 71 Ga. 128; McHugh v. State, 31 Ala. 317.

12. The general rule of evidence applies to all cases alike, whether the defence be insanity, self-defence, or an alibi, as to dying declarations.

Dying declarations are regarded by the law as secondary evidence, and will be received and treated by the judges as such: Boyle v. State, 105 Ind. 469; s. c. 55 Am. Rep. 218; State v. Vansent, 80 Mo. 67; Lambert v. State, 23 Miss. 322; People v. Knapp, 1 Edm. Select Cases (N. Y.), 177. 13. If the deceased would be incompetent as a witness, if living, for any cause, his declarations could not be received_

a. If convicted of an infamous crime:

b. If an insane person:

c. If incompetent for any reason: 1 Greenleaf on Ev. (14th Ed.), § 157; Nesbit v. State, 43 Ga. 238; Walker v. State, 39 Ark. 220.

As to insanity: Bolin v. State, 9 Lea (Tenn.), 516; Donelly v. State, 2 Putch. (N. J.), 463; State v. Ah Lee, 8 Oregon, 314.]

CORONERS' INQUESTS.

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CHAPTER II.

CORONERS' INQUESTS.-TRIALS.—SUBPOENAS.-MEDICAL FEES.-DUTIES OF MEDICAL WIT NESSES.-MEDICAL SECRETS.-QUOTATIONS FROM BOOKS.-PRESENCE IN COURT.-TECHNI CAL TERMS.-LICENSE OF COUNSEL.-RULES FOR THE DELIVERY of evidence.-EXPERTS, EXPERT TESTIMONY AND OPINION EVIDENCE.

Coroners' Inquests. The proceedings at coroners' inquests are treated too lightly by medical men. The ignorant and uneducated class of persons who often constitute the jury, as well as the circumstances under which the inquiry takes place, are not calculated to inspire great respect for these initiatory proceedings; but still by law and custom coroners' inquisitions are, and have been for ages in this country, the only tribunals for inquiring into and determining the cause of death in cases of suspected violence; and they are therefore deserving of more attention than is usually shown to them by medical witnesses. As a rule, in all inquests which are likely to end in a committal of the accused person, a medical man who is giving his evidence before a coroner in the room of a small country inn or in a village school-room, is virtually delivering it before a judge of assize; and this fact alone, if not a respect for the court, should induce him to give his evidence guardedly, and with a due consideration to the serious results to which it may ultimately lead. The Coroners' Act, 1887 (50 and 51 Vict. c. 71, s. 1), directs that "where a coroner is informed that the dead body of a person is lying within his jurisdiction, and there is reasonable cause to suspect that such person has died either a violent or unnatural death, or has died a sudden death of which the cause is unknown, or that such person has died in prison, or in such place or under such circumstances as to require an inquest in pursuance of any Act, the coroner, whether the cause of death arose within his jurisdiction or not, shall, as soon as practicable, issue his warrrant" for an inquest; and the Lunacy Act, 1890 (53 Vict. c. 5, s. 84), directs that "every coroner shall, upon receiving notice of the death of a lunatic within his district, if he considers that any reasonable suspicion attends the cause and circumstances of the death, summon a jury to inquire into the same." The information upon which a coroner generally acts is-1. Notice from a beadle, or other officer of the parish (whose zeal is sometimes stimulated by a fee or salary), of any death from sudden or supposed unusual causes. 2. Notice from a medical man who may have attended the deceased, and who communicates his suspicion that the cause of death was not natural. 3. Notice from a registrar of deaths that no cause has been assigned in a particular case, or that there had been a rapid death after a short illness. The conclusion to which experience leads in reference to these inquiries is, that the system affords no certainty for the detection of crime; that it affords no protection to those who are wrongly charged with crime; and, lastly, that in some cases it screens a criminal by a verdict based upon an imperfect inquiry, in which the important medical facts are either not understood or are misinterpreted by the jury. No preliminary test of ability or capacity is required of the coroner, although the Coroners' Act, 1887, states that he shall be a fit person."

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