JURIES AND PHYSICIANS • ON QUESTIONS OF INSANITY. UY H. S. GUERNSEY, ESQ., OF THE NEW YOUK BAR. NEW YORK: J. R. McDIVITT & COMPANY, PUBLISHERS, LAW-BOOKSELLERS AND IMPORTERS, No. 81 Nassau Street. JURIES AND PHYSICIANS ON QUESTIONS OF INSANITY. HY R. S. GUERNSEY, ESQ., OF THK NEW YOKK BAR. NEW YORK: R. McDIVITT & COMPANY, PUBLISHERS, LAW-BOOKSELLERS AND IMPORTERS, No. 81 Nassau Street. JURIES AND PHYSICIANS ON QUESTIONS OF INSANITY* by R. S. GUERNSEY, ESQ., OF THE NEW YORK BAB. In relation to trials in courts of law, when the defence of insanity is interposed, the question has been frequently dis- cussed, or we may say urged, by physicians, as to the propriety and promotion of the ends of justice and humanity of having physicians unit/ to pass upon the question instead of a common jury, as in other cases. In this discussion jurists have taken very little or no part, feeling satisfied, perhaps, that the law, as it now stands in England and America, in regard to such trial*, is in a better form to ascertain tho truth and carry out the design of all human laws—the protection of society—justice to all. In a late issue of the Journal of Mental Science, Dr. Henry Maudsley, the well-known author, has an article which was republished in the August, 1872, number of the Popular Science Monthly, that fairly presents the view taken by physi- cians on this very important subject. * Read before the Medico-Legal Society of New York City, November 14th, 1872. 2 He says: “ Tiie ground wliieli medical men should firmly and con- “ sistently take in regard to insanity is, that it is a ’physical “ disease; that they alone are competent to decide upon its “ presence or absence ; and that it is quite as absurd for “ lawyers or the general public to give their opinion on the “ subject in a doubtful case as it would be for them to do so in “ a case of /every The reasons for the law as it stands on this question are too little known among all classes of community. As the law now is and has been for centuries, it allows and calls in the help of experts to aid in its own due administration. This is required in all questions arising in which there is sup- posed to be a peculiar knowledge or skill in any particular vocation, in any science, or art or matter requiring superior knowledge. This rule is applied to questions arising in which the medical profession are supposed to have superior knowledge, and insanity is one of these questions upon which physicians are allowed to testify as to their opinion of the case under cer- tain circumstances. The principle of allowing experts to testify as to their opinion established the maxim that “ Every person should be believed in his own art.” The opinion of a witness is in no case evidence to be con- sidered by a court or jury, except when the premises upon which he founds his conclusions cannot be understood by the court or jury without a study or knowledge on the special sub- ject, or without the aid of the knowledge of persons whose skill is superior to their own. In order to be competent to testify as an expert, which means qualified to give an opinion in courts of justice on a statement of facts presented, an extra knowledge of the particular science, skill, trade, or business, or other matters requiring special knowledge must be shown. A witness of this character is not confined to the general rule, that he must state facts only, and leave the conclusions to be drawn from these facts to be determined by a court or jury, under oath he can give his opinion. These opinions or conclu- sions of judgment which make up such opinions of experts are the same in substance as the verdict of a jury or judgment of a court, which is nothing more than the opinion of such 3 jury or court as to what is established by the facts in the case. This conclusion or opinion, as is that of an expert, is given under the sanction of an oath. There is this difference, how- ever, in the two cases; the court or jury is under oath while they are making up their opinion upon the facts in the case, and these facts upon which the opinion is predicated are also submitted to the minds of the counsel and parties. The facts were also given by the common witness under oath, upon which the jury or court makes up an opinion as to the credibility of the witness as well as of the weight of his statements. A juryman can have no private opinion, so far as his verdict is concerned. The oath he takes is “to try the issues joined between the parties and a true verdict give, according to the evidence.” All he can do is to apply his general knowledge in weighing and applying the facts or professional opinions as they are presented to him by the several witnesses. The ex- pert, on the other hand, comes to the results constituting his opinion, which is to be received in evidence, from his own private study, observation and reflection, and though the facts upon which his opinion is based may be called for by the counsel, yet from the very nature of the case it is not to be expected that the jury or court will understand them. The opinion of an expert is the private judgment of the witness given under oath. Such testimony is regarded as of great im- portance, but from its peculiarity and the crude shape under which it may come before the court or jury, it is to be received with great caution. As the same kinds of guards cannot be thrown around the formation of the opinions of an expert as are brought to bear upon a jury, and the opinions of experts cannot be subject to the severe scrutiny that other evidence undergoes, this kind of evidence is not of the clear and posi- tive character or of the value of that of facts. The general rule of law, as expounded by the courts, as regards the testi- mony of experts, is plaiuly expressed in the language of the court in the case of Brehm vs. Great Western Railroad Com- pany, in N. Y. Supreme Court (34 Barber, page 256) as fol- lows : “ Great respect should be paid to the opinion of such a class “ of witnesses, but they are no more controlling than those of 4 “ any other body of men when speaking upon subjects icliich lie “ ivithin the range of common observation and experience In the case of the People vs. Bodine, in N. Y. Court of Er- rors (1 Denio, p. 281), the Court held that the opinion of a physician is not admissible upon a question respecting which unprofessional men can as well draw conclusions. Thus, where a corpse was found partially burned and certain portions of the body covered with loose clothing were not burned, the opinion of a medical man that the person must have been dead be- fore the fire broke out, as otherwise the covering would have been disturbed, was held inadmissible testimony. In the case of Wilson vs. People (2 Parker’s New York Crim- inal Reports, p. G19) the Court held that the question whether a wound was caused by a blunt instrument or not is not a question for scientific opinion, and a surgeon could not be al- lowed to give his opinion on that point. The N. Y. Court of Appeals, in Kennedy vs. People (5 Ab- bott, N. S., p. 147), held that the opinions of the medical wit- nesses as to the position of the body when struck, inferred from the nature of the wound they had examined, were not admis- sible as evidence. According to the rule above stated and illustrated, should the question of sanity or insanity of a person be passed upon exclusively by physicians ? This question may best be an- swered by inquiring into the standard by which the subject is to be measured. This standard must be the average man, and hence what we call common sense—that is, a due regard to the usual institutions and habits of mankind. It is now undisputed that the brain is the seat of the mind, and that insanity is re- garded as emanating from the brain, and hence may be caused by a physical disease affecting that organ. It is, of course, oftentimes very difficult to decide in any given case whether any marked peculiarity is the result of a very active and one- sided development of the brain or of actual disease. The gen- eral principles on which all decisions of this question must be based are : That when any feeling, passion, emotion, or even a special aptitude, becomes absolutely ungovernable, so as to make its subject regardless of his own interests or of the well- being of his friends—when, as it were, it absorbs the whole 5 being so as to blunt the reason and conscience, and urges on to a manner of life and to special deeds that are repugnant to the average institutions of mankind—then we have reason to suspect the existence of insanity. Although the average senti- ment and experience of mankiud may be an indefinite standard by which to test the sanity of an individual, it is the same standard by which physicians are to judge of it, and the same as that by which they judge that any internal organ of the body is diseased. How is it that a physician can ascertain whether his patient is suffering from dyspepsia or not ? Ob- viously only by comparing the symptoms that the patient ex- hibits and the feelings of which he complains with the symp- toms and feelings experienced by the average of persons who are free from dyspepsia. In precisely the same way he be- comes informed of the existence of disease in all organs of the body that are hidden from actual inspection or physical exami- nation. The brain is enclosed by a bony covering, and cannot be inspected during life, except in some cases of injury. Dis- eases affecting the brain can, therefore, only be studied through the general effects, symptoms and comparisons with other persons. The law presumes every man to know the consequences of his own acts, and is therefore responsible for them. The questions to be decided in trials where the defence is in- sanity are: (1.) Was the accused insane at the time of the commission of the offence 1 (2.) Was the insanity to such a degree as to render the ac- cused irresponsible for the particular act ? (3.) Is the evidence sufficient upon which to acquit the ac- cused on the ground of insanity ? These questions are so blended that it is impossible to sepa- rate them without taking the case entirely from the jury. The first one has little or no relevancy apart from the second, and the second stands upon the third, and all are to be measured, whether by physicians or jury, by the same standard—the com- mon sense of and experience among men. In the case of the People vs. Lake (12 N. Y., 358), in New York Court of Appeals, the court say : “ Upon principle it may be doubted whether strictly medical 6 “ witnesses should ever give an opinion upon the general ques- “ tion of the sanity or insanity of a prisoner, as that is a ques- “ tion for the jury. It is in a sense testifying to the very point “ the jury must decide—the general merits of the case, espe- cially upon a preliminary inquest to try the fact of insanity ” (Many English and American authorities are cited to sustain that position). In criminal cases, in order to absolve the party from guilt, a higher degree of insanity must be shown than would be suffi- cient to discharge him from the obligations of his contracts. In the trial of Abner Rogers for murder, in Massachusetts, Chief-Justice Shaw stated the rule to be, that “ a man is not to “ be excused from responsibility if he has capacity and reason “ sufficient to enable him to distinguish 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 crimi- “ nal, and will subject him to punishment. In order to be “ responsible he must have sufficient power of memory to recol- “ lect the relation in which he stands to others, and in which “ others stand to him—dhat the act he is doing is contrary to “ the plain dictates of justice and right, injurious toothers, and “ a violation of the dictates of duty. On the contrary, although “ he may be laboring under partial insanity, if he still under- “ stands the nature and character of his act and its conse- “ quences—if he has a knowledge that it is wrong and criminal, “ and a mental power sufficient to apply that knowedge 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. “ If, then, it is proved to the satisfaction of the jury that the “ mind of the accused was in a diseased and unsound state, “ the question will be whether this disease existed to so high a “ degree that for the time being it overwhelmed the reason, “ conscience and judgment, and whether the prisoner in com- “ mitting the homicide acted upon an irresistible and uncon- “ trollable impulse ; if so, then the act was not the act of a volun- “ tary agent, but the involuntary act of the body, without the “ concurrence of a mind directing it ” (2 Greenleaf’s Evidence, “§ 372.) 7 Tho only insanity that the law, as above stated, recognizes as an excuso for crime lias been termed “intellectual insanity” (Taylor’s Med. Jurisp.). In McNagliten’s case (10 Clark