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that there is no line of distinction better defined in the constitution of the courts of criminal jurisdiction than that which separates the province of the court from that of the jury. Ad questionem juris respondeant judices, ad questionem facti respondeant juratores, is the law maxim which defines the line of separation. An intelligent and conscientious jury will look to the court, in the trial of the capital case, with confidence and reliance, for instruction and guidance as to the law of the case, and all things exclusively within his province. In addition to their obligation to accept the law as he pronounces it, they naturally trust to his superior knowledge and his larger experience. Gordon v. People,

33 N. Y. 501.

Logically considered, the trial of a criminal case is an effort to complete a final syllogism, having for one premise, matter of law; for the other, matter of fact; and for the conclusion, the resulting proposition of guilty or not guilty. It is the duty of the judge to supply the jury with material for the major premise of this syllogism; and it is the duty of the jury to collect from the evidence the minor premise, compare the two, draw the conclusion, and declare it in their verdict. Habersham v. State, 56 Ga. 61.

CHAPTER XVI.

SCIENTIFIC BOOKS IN EVIDENCE.

95. Species of Evidence not Favored.
96. Not Read in Argument to Jury.
97. Partial Review of Authorities.
98. Views of Mr. Moak.

99. Exception Noted.

95. Species of Evidence not Favored.-Although the courts are not uniform in their holdings upon the admissibility in evidence of medical and scientific books, the great weight of authority is to the effect that they cannot be admitted to prove the declarations or opinions which they contain. This view proceeds upon the theory that the authors did not write under oath, and that their grounds of belief and processes of reasoning cannot be tested by cross-examination. But while the books are not admissible, an expert witness is not confined wholly to his personal experience, but his opinions formed in part from the reading of treatises prepared by persons of acknowledged ability may be given in evidence. So, also, may a witness refresh his recollection by reference to standard authors; but the judgment or opinion which he gives must be his own, and not merely that of the author.

Dicta are to be found in the reports of the courts of several of the states which, disconnected with the context, would seem to support the proposition that counsel may be permitted to read from medical works of established credit in the profession "as part of his argument." But in one only of the cases, so far as we have been able to find, was it decided that this practice was proper, such decision being necessary to the conclusion reached by the court.

In Yoe v. People, 49 Ill. 412, it was said that where the attorney for the people, against the objection of the prisoner, read copious extracts from medical works, the court (without special request on the part of the prisoner) should have instructed the jury that such books are not evidence, but theories simply of medical men. Even if we should accept this as law, the judg

ment in the present case must be reversed, since the court below did not so instruct the jury. In Yoe v. People, the reading of such books by the attorney for the people (in the absence of the instruction mentioned) was held to be error and the judgment was reversed. In our view the court came to the proper conclusion,—that error had occurred. People v. Wheeler, 60 Cal. 581, 44 Am. Rep. 70.

The weight of current authority is decidedly against the admission of scientific books in evidence before a jury, although in some states they are admissible. 2 Greenl. Ev. § 440, and note; Whart. Ev. § 665; Rogers, Expert Testimony, §§ 168, 169, et seq., and cases cited in notes. And the weight of current authority is, also, against allowing such treatises to be read from, to contradict an expert, generally. Com. v. Sturtivant, 117 Mass. 122, 19 Am. Rep. 401; Davis v. State, 38 Md. 15; State v. O'Brien, 7 R. I. 336. Where, however, an expert assumes to base his opinion upon the work of a particular author, that work may be read in evidence to contradict him. This was, in effect, the ruling in Connecticut Mut. L. Ins. Co. v. Ellis, 89 Ill. 516, and it was expressly so ruled in Pinney v. Cahill, 48 Mich. 584; Ripon v. Bittel, 30 Wis. 614, and Huffman v. Click, 77 N. C. 55. See also Marshall v. Brown, 50 Mich. 148; Rogers, Expert Testimony, 181.

Where a witness says a thing or a theory is so because a book says so, and the book, on being produced, is discovered to say directly to the contrary, there is a direct contradiction which anybody can understand. But where a witness simply gives his opinion as to the proper treatment of a given disease or injury, and a book is produced recommending a different treatment, at most the repugnance is not of fact, but of theory; and any number of additional books expressing different theories, would obviously be quite as competent as the first, but since the books are not admissible as original cases in such evidence in such cases, it must follow that they are not admissible on cross-examination where their introduction is not for the direct contradiction of something asserted by the witness, but simply to prove a contrary theory. Bloomington v. Shrock, 110 Ill. 219, 51 Am. Rep. 679. In Ripon v. Bittel, 30 Wis. 614, the question was on the admission of surgical treatise in evidence. The court said that it was urged that they were improperly admitted, and should only

have been allowed to be read in argument, and that "such perhaps may be the general rule." But their admission was approved. This therefore is not an authority on the point in question.

§ 96. Not Read in Argument to Jury.-In Com. v. Wilson, 1 Gray, 337, Shaw, Ch. J., held that scientific books cannot be read in argument to the jury. He said: "Facts or opinions on the subject of insanity, as on any other subject, cannot be laid before the jury except by the testimony under oath of persons skilled in such matters. Whether stated in the language of the court, or of the counsel in a former case, or cited from the works of legal or medical writers, they are still statements of fact, and must be proved on oath. The opinion of a lawyer on such a question of fact is entitled to no more weight than that of any other person."

§ 97. Partial View of Authorities.-This was reiterated by the same judge, in Ashworth v. Kittridge, 12 Cush. 193, 59 Am. Dec. 178. He there said: "Where books are thus offered, they are in effect used as evidence, and the substantial objection is that they are statements wanting the sanction of an oath; and the statement thus proposed is made by one not present and not liable to cross-examination."

In People v. Anderson, 44 Cal. 65, while the practice was considered as improper, it was held not to be a reversible error, because it was a matter within the discretion of the trial court, and unreviewable on appeal except for an apparent abuse of discretion. People v. Treadwell, 69 Cal. 226.

And in Reg. v. Taylor, 13 Cox, C. C. 77, it was held: "Cases cited in books on medical jurisprudence are not admissible even to form part of an address to the jury." Counsel for defense, in addressing the jury, proposed to read from Taylor's Medical Jurisprudence. Brett, J., said: "This is no evidence in a court of justice. It is a mere statement by a medical man of hearsay facts of cases at which he was in all probability not present."

To the same effect are the American cases, in which the question is fully considered and decided. In State v. O'Brien, 7 R. I. 338, the court said: "The book offered to be read to the jury was not admissible as evidence. No evidence on the nature of parol testimony could properly pass to them, except under the sanction of an oath; and upon this ground books of science are

excluded, notwithstanding the opinions of scientific men that they are books of authority and valuable as treatises. Scientific men are permitted to give their opinions as experts, because given under oath, but the books which they write containing them are, for want of such oath, excluded." People v. Wheeler, 60 Cal. 581, 44 Am. Rep. 70.

Medical books are not addressed to common readers, but require particular knowledge to understand them. Every one knows the inability of ordinary persons to understand or discriminate between symptoms or groups of symptoms, which cannot always be described to those who have not seen them, and which with slight changes and combinations mean something very different from what they mean in other cases. The cases must be very rare in which any but an educated physician could understand detached passages at all, or know how much credit was due to either the author in general or to particular parts of his book. Scientific men are supposed to be able from their study and experience to give the general results accepted by the scientific world, and the extent of their knowledge is tested by their personal examination. But the continued changes of view brought about by new discoveries in most matters of science, and the necessary assumption of scientific writers of some technical knowl edge in their readers, render the use of such works before juries -especially in detached portions and selected passages-not only misleading but dangerous. The weight of authority is against their admission. Such books may be read to discredit a witness who has testified that his views were supported by such authority. Pinney v. Cahill, 48 Mich. 584. Or to test the extent of an "expert's" knowledge on cross-examination. Connecticut. Ins. Co. v. Ellis, 89 Ill. 516. But see generally, Darby v. Ouseley, 1 Hurlst. & N. 12; Terry v. Ashton, 34 L. T. 97; Ashworth v. Kittridge, 12 Cush. 193; Com. v. Brown, 121 Mass. 69; Carter v. State, 2 Ind. 617; Gehrke v. State, 13 Tex. 568; Collier v. Simpson, 5 Car. & P. 73; Com. v. Sturtivant, 117 Mass. 122; Brodhead v. Wiltsee, 35 Iowa, 429; Harris v. Panama R. Co. 3 Bosw. 7: People v. Hall, 48 Mich. 482.

§ 98. Views of Mr. Moak.-From a valuable article in the Albany Law Journal, of Oct. 8, 1881, I extract the following as illustrative of the present attitude of the decisions as regards the reading of scientific books to the jury.

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