[Reprinted from The Philadelphia Medical Journal, February 18, 1899.] 
JUDICIAL METHODS,—MEDICO-LEGAL TESTIMONY,— 
THE ZELNER CASE. 
HORATIO C. WOOD, M.D., 
Probably every one who has mingled extensively 
with what may be called the upper middle classes in 
England and the Continent of Europe must have been 
impressed with the fact of their general belief that the 
greatest blot upon American civilization is the extraor- 
dinary number of homicides in the United States. 
That this feeling is well founded cannot be gainsaid. 
It is one of the evils of our system of government that 
the United States authorities of necessity take little 
interest in the question of crime, because criminal acts 
come under the jurisdiction of the individual States. 
Few of our individual State governments have reached 
that degree of civilization which makes a government 
take an intelligent, broad view of general questions; 
and so we have practically in the United States no 
official statistics in regard to homicides. The Chicago 
Tribune attempts to supply the deficiencies of govern- 
ment in this respect, and although it is not probable 
that the statistics which it gathers together are entirely 
accurate, they are the best we have, and are sufficiently 
near the truth to show the general drift of affairs. 
of Philadelphia. 
According to these statistics, there were, in the 5 
years ending with 1898, 48,312 homicides in this coun- 
try, an average of a little under 10,000 a year. It may 
well be that there is some duplication in the gathering 
of the statistics by the Tribune, but it is certain that 
there are many murderswhich never..come.-to..the 2 
knowledge of the Tribune statistician, so that it is 
probable that 10,000 is not above the annual number 
of murders in the country. 
Hangings being comparatively few, and a matter of 
official record, the statistics given by the Tribune are 
probably nearly accurate. There were, according to 
these statistics, 628 hangings in the 5 years; in other 
words, the executions in these 5 years amounted to a 
little over 1% of the total number of homicides of all 
grades. 
The causes for the enormous annual slaughter 
amongst us are various, but that one of the efficient 
causes is the failure of our juridical system seems to 
me beyond cavil. Probably three-fourths of murderers 
go unpunished, and each man who plans murder or 
kills without premeditation hopes to be one of the great 
majority that escape the consequences of their acts. 
The legal machinery provided by the law for the con- 
viction of the murderer is composed of a district at- 
torney or prosecuting legal officer, a grand jury, a petit 
jury, and judges, besides detectives, expert witnesses, 
etc. It is apparent that for the proof of the murder 
and the determination of the causes of death medical 
testimony is essential, and that, whatever may be the 
faults of medical testimony as given in the United 
States, the processes of the law cannot be carried out 
without it. It has become fashionable to abuse the 
medical expert, and, indeed, the whole medical pro- 
fession, on account of expert testimony given in our 
courts. There is undoubtedly great reason for com- 
plaint, but the abuse should be directed not toward 
the medical profession but toward the present system 
of trial and the legal and legislative professions that 
have made it what it is. The medical profession in the 
United States comprises within its ranks every kind of 
man, from the criminal to the individual of highest 3 
character, from the semi-imbecile to the man of extra- 
ordinary intellectual power. It probably does not differ 
essentially in its personnel from the average educated 
classes of the whole community, but in so far as it does 
differ it is distinctly superior rather than inferior, the 
whole tendency of medical education and the stimulat- 
ing force of medical esprit de corps being toward the ele- 
vation of the character of the individual. The existing 
scheme or plan of expert testimony, which is the out- 
growth of legislation and not of any acts of the medi- 
cal profession, either in its solidarity or its individu- 
ality, puts the greatest possible pressure upon the 
individual doctor to give inaccurate testimony, and 
affords the greatest possible latitude to the defendant, 
through his lawyers, to hunt up the ignorant and 
pliable and to avail himself of individual idiosyncrasies 
or dishonesties. From doctor to doctor, with a large 
fee in hand, the counsel goes, until at last a man is 
found who is willing to give the opinion that is wished. 
Of course, a fee is paid for an opinion rendered, whether 
that opinion be favorable or unfavorable to the de- 
sires of the lawyer, and by the acceptance of the fee 
the mouth of the physician consulted is absolutely 
sealed ; so that the public never knows that the lawyer 
has consulted, it may be, a dozen doctors and received 
a dozen adverse reports before he has found one opinion 
that has suited his purpose, or one man who will bend 
to the lust of gold. Under these circumstances the 
question offers itself to every self-respecting member 
of the profession—“ Shall or shall I not allow myself 
to be called into court ? ” As, however, the expert is 
an absolute necessity, and as the refusal of the honest 
and capable would leave the field even more open 
than it is at present to the dishonest and incapable, 
I cannot see that members of the profession are justi- 
fied in refusing to testify concerning subjects within 4 
their immediate knowledge. There should be some 
way, however, by which the courts should make more 
distinction than they do at present between the true 
and the false experts. How honesty is to be probed it 
is difficult to say; but would it not be possible to have 
men licensed to practise as experts in the courts after 
examination, precisely as men are licensed before the 
courts to practise at the bar? 
While, however, allowing the evils of expert testi- 
mony in criminal trials, I want to assert my opinion 
that it is no worse than the other features of our pres- 
ent system. I heard it once said in a public assembly, 
by one of Philadelphia’s most famous lawyers, quoting 
the words of a famous English jurist, that there was no 
greater mistake than the supposition that the jury-sys- 
tem was conceived for the purpose of doing justice ; 
that it was after all only a system, which by replacing 
the ordeal of battle should prevent men from flying at 
one another’s throats, and which should also in a mea- 
sure protect the rights of individuals against those in 
superior stations. 
On the face of it there can be nothing more absurd 
than the leaving of questions of sanity, or of chem- 
istry or other abstruse sciences, to 12 unlearned men. 
The constitution of the jury must be an embodiment 
of the prejudices of the community out of which it is 
formed. In a frontier settlement, where public opinion 
justifies the shooting of a man who has insulted the 
shooter, a jury can hardly be expected to convict one 
who murders upon what public opinion believes to he 
sufficient provocation. We have heard it stated by 
eminent counsel that in the State of Pennsylvania no 
man has ever been executed for even the most deliber- 
ately planned and premeditated murder of a man who 
has invaded his household-circle. I have known a 
man arm himself, travel some hundreds of miles to 5 
kill an individual such as just alluded to, and the jury 
acquit on the ground of instantaneous insanity. For 
less justifiable and often extremely recondite motives 
the deciding 12 sometimes reach conclusions most 
illogical. In the Meyer case, not long since tried in 
New York City, a conspiracy was entered into in Chi- 
cago to defraud life-insurance companies. It involved 
impersonation and taking out of policies in Chicago, 
the subsequent hiring of a fiat in New York City, and 
the daily administration of poisonous doses, first of 
tartar emetic, afterward of arsenic, for some weeks, and 
when death resulted the attempt to secure the insur- 
ance-moneys. Yet the jury brought in a verdict of un- 
premeditated murder. But it would be an endless task 
to cite individual cases of unwarranted verdicts given 
by juries. While this article has been in proof the 
daily press has discussed several verdicts, which, ac- 
cording to the press itself, were wilful departures from 
the right. 
Perhaps an even more serious obstacle to justice than 
the ignorance, the illogical mentality, and the prejudices 
of jurors, is the so-called process of “ fixing the jury.” 
That this exists in this city (Philadelphia) I have heard 
asserted by authorities who were most experienced in 
the practice of our criminal courts; and the recent 
introduction and passage by the State Senate of an Act 
which it is affirmed in the daily press and upon the 
floor of the Legislature is practically to render “ fixing ” 
of a jury less difficult, has led to public assertions by 
responsible men. Thus State Senator Weller, as re- 
ported in the Philadelphia Public Ledger, said : 
“Too often attempts are made by abhorrent means to fix 
the jurors or influence them in behalf of the accused, espe- 
cially in our large cities. The inducements to work in be- 
half of the person charged are often very potent. In our 
large cities there exist regularly arranged fraternities of pro- 
fessional jury fixers, bound together by secret oath, whose 6 
exertions are always put forth in behalf of the defendant, 
from whom, or his friends, they get their means of liveli- 
hood.” 
We are so accustomed to the position in which the 
law places the judge in a murder-case that its anomal- 
ous character fails to be perceived. Probably as a long- 
continuing result of the bloody assizes of England 
(when at the order of judges English blood flowed like 
water) if the life of a prisoner is imperiled, the law and 
the custom, which is almost more constraining than law, 
practically instructs the judge to favor the accused in 
his rulings—instructions which are often fortified by 
the enforced absence of the murdered person and the 
presence of the alleged murderer, especially if it so be 
that the latter be a female of prepossessing appearance. 
Under these circumstances the law further proceeds 
to make the decisions of the judge that are against 
the prisoner open to revision by the superior court, 
but declares that the decisions that are in favor of the 
prisoner shall be final; so that, however outrageous 
they may be, they cannot be revoked by any superior 
tribunal. The law puts it in the power of a single 
judge, through ignorance or prejudice, or worse motive, 
practically to free the prisoner; and holds the judge 
responsible only to a public opinion, which is usually 
paying no attention to the matter. The Zelner case, 
recently tried in Philadelphia, shows that the posses- 
sion of this power by the judges is not merely a dead 
theory, but a living, active factor of our criminal 
juridical system; since, in that case, the presiding 
judge assumed the whole responsibility, practically 
taking the decision out of the hands of the jury and 
setting free the accused. 
When it is remembered that the extraordinary oppor- 
tunities offered for the defendant by the jury trial are 
to be taken advantage of by men of the highest mental 7 
acumen and technical skill, who with single eye struggle 
in the criminal courts for the purpose of acquitting 
prisoners, it seems a wonder that every criminal does 
not escape through the various openings, and that the 
convictions are so frequent as they are. 
So far, then, as concerns expert testimony in our 
courts, I desire to make the claim that it is only part 
and parcel of a juridical system which has been de- 
veloped under circumstances essentially different from 
those now existing, and that with all its faults it is 
neither better nor worse than other similarly integrant 
portions of that system, and that its serious reformation 
or change is probably impossible without a change in 
the whole method of trial; to drop it out of the jury 
trial would be simply to make the latter more of a farce 
than it is at present. It is interesting to note that at 
least one State has begun to break away from that 
archaic fetichism which has so long led Anglo-Saxon 
legal and legislative minds to worship the jury-system, 
and that in Maryland a murderer may be tried at his 
own option by a bench of judges instead of by a jury. 
The writer had the privilege to act in one such trial as 
expert, and the revolution in the manners and methods 
of the court-room were a revelation ; no contention of 
what was or was not evidence, no attempt to introduce 
material to bewilder the juror, no speeches to inflame 
prejudice or soften the sympathies; nothing but a 
straightforward common-sense procedure, which in a 
single day finished very satisfactorily a difficult case 
that under the older methods would have involved the 
court for nearly a week and ended in a verdict the 
character of which no man could predict. 
Under existing circumstances judicial decisions that 
are unusual become a matter of public interest, and espe- 
cially of interest to the medical profession when they 
are connected with the giving of expert testimony. 8 
Further, the only check that there is upon the medical 
expert, over and beyond the control of his individual 
conscience, is his feeling of responsibility to the general 
medical profession. 
It is evident that if medical testimony reaches not 
beyond the confines of the court-room, the feeling 
of responsibility to the profession on the part of the 
giver holds no sway; and therefore when medical testi- 
mony is unusual it is a matter of public interest that it 
be known to the general profession. 
It is over 30 years since I was engaged as expert in 
my first case of alleged poisoning, the notorious 
Schoeppe case, in which I had the pleasure of hearing 
the medical expert say that “ the woman must have 
died of compound poisoning, because he had taken 
from a drug-store a little of every poison which was in 
it and given it to a hawk, which died with the same 
symptoms the woman had shown.” During the whole of 
this long experience there has been no trial in which 
statements of the experts and the methods of the court 
have seemed more worthy of record than in the Zelner 
case, recently tried in Philadelphia. With this much of 
apology I shall proceed to give a succinct account of 
this case, using an official copy of the stenographic 
notes as the basis of the article. 
Case.—According to the testimony of his friend and 
long-time physician, Dr. Wm. A. Burns, Mr. Zelner was a 
man of about 60 years of age, very robust and free from 
history of past illness. He was taken sick suddenly in 
the night of April 12, 1897. The chief evidence con- 
cerning his illness was that of j)olice-officer John H. 
Hoffman, who stated that Mrs. Zelner came to him 
about 5 o’clock in the morning, on the street, saying 
that Mr. Zelner “ had a stroke;” that he then went into 
Mr. Zelner’s room, and that Mr. Zelner appeared to be 
in saying): “‘I have got cramp in my legs.’ We took the covers off 
him and wo rubbed bis logs for quite a while. He kept cry- 
ing ‘ Whoo, whoo, my, whoo, whoo, my,’just about that way. 
“Q. Convulsive and rigid? 
“A. Yes. He said, ‘ 1 think I am dying.’ i said,‘No, 
lieub, you are not dying; you have got cramps, I suppose.’ 
1 Whoo, whoo,’ he says, ‘ such pains.’ I said to his wife, who 
came upstairs, ‘ Go and get some hot cloths; probably that 
will relieve him.’ She brought the cloths up. We laid 
them on Ids legs, and he says, ‘ Whoo, I think I am dying.’ 
I said,1 No, you are not dying ; you are frightened, that is all; 
you have got great pain.’ We put these cloths on, and 
while we were at it he turned his head over towards the 
right, towards Eleventh Street, and he says, ‘ Dying ’; he 
straightened out and was dead. [Witness here threw his 
head iqnvards and backwards, imitating actions of a man 
who dies in a tetanic spasm.]” 
Cross-examination of Mr. Hoffman failed to elicit 
anything of importance, unless it was that he had not 
observed lividity of the face, risus sardonicus, and , cer- 
tain other of the minute symptoms usually present in 
strychnia poisoning. The time of observation was very 
short; to use the words of the witness, “He [Mr. 
Zelner] did not live long enough after I got there to 
complain of much.” 
Dr. Henry W. Cattell, coroner’s physician, testified 
that he had made two autopsies on the body of 
Reuben Zelner, one before and one after burial, and 
had found no cause of death; some congestion of the 
brain and a little increase 'of the cerebral fluids being, 
however, noted; that the body was that of a man 
weighing about 150 lbs., and that he (Dr. Cattell) 
had taken about 20 lbs. of the soft tissues and 
put them in the hands of the chemists, being careful 
to choose a great variety of places from which to select 
portions so as to have samples of the whole body. He 
selected the stomach, a portion of the intestines, a por- 
tion of the liver, one kidney, a large piece from the 
muscles of the region of the thighs, another piece from 
the muscles of the shoulders and the arm, and a portion 10 
of the brain; the whole representing one-sixth of the 
weight of the soft parts, calculating the hones at 30 lbs. 
The chemical examinations for the Commonwealth 
of the portions of the body selected by Dr. Cattell were 
made independently of each other, by Dr. John 
Marshall, Professor of Chemistry in the Department of 
Medicine of the University of Pennsylvania, and by Mr. 
William C. Robinson, Jr., Chemist to the Philadelphia 
Board of Health. At the time the chemical examina- 
tion was being made Dr. Marshall was in entire 
ignorance of Mr. Robinson having been engaged to 
make a chemical examination, and likewise Mr. Robin- 
son was in entire ignorance of Dr. Marshall having been 
engaged to make an examination. 
Dr. Marshall produced in Court the strychnine that 
he bad obtained in the body, saying of it (page 148): 
“I am satisfied that the substance.which I have here, and 
which I have tested, is strychnine and nothing else.” 
The evidences relied upon by the chemists as proof 
that the substance finally obtained from the material sub- 
mitted for examination was strychnine were as follows : 
Dr. Marshall’s Coxclusioxs : 
(1) The crystalline form of the colorless residue. 
(2) The intensely bitter taste. 
(3) The response to the color-test with sulphuric acid and 
potassium bichromate. 
(4) The physiologic test, i.e., the production of spasmodic 
muscular contractions after the injection of a dilute aqueous 
solution of the residue into the backs of frogs. 
Mr. Robinson’s Conclusions. 
(1) The crystalline form of the colorless residue. 
(2) The intensely bitter taste of the residue. 
(3) The response to the color-test with sulphuric acid and 
potassium bichromate. 
(4) The production of characteristic crystals of strychnine 
chromate upon the addition of potassium chromate to a 
solution of the crystalline residue obtained from the material 
examined. 11 
The amount of tissue operated upon by Dr. Marshall 
was about 2 lbs. of liver, 6 lbs. of muscle, 5 lbs. of intes- 
tines, and 1J lbs. of brain. These tissues were examined 
separately, and from the liver was recovered strychnine 
equivalent to 0.0217 grain strychnine sulphate; from the 
muscle, strychnine equivalent to 0.0079 grain strych- 
nine sulphate, equivalent in the aggregate to 0.0296, 
equal to grain strychnine sulphate; from the intestines, 
strychnine equivalent to 0.0236 grain strychnine sulphate 
which, added to the 0.0296 grain strychnine sulphate of 
the liver and muscle, would equal 0.0532 grain strychnine 
sulphate, or y grain strychnine sulphate. The 
of strychnine recovered from the brain was insufficient 
to be weighed, but was quite sufficient in quantity to 
permit of the application of the tests as to taste, the 
color-test with sulphuric acid and potassium bichro- 
mate, and also the physiologic test. 
Mr. Robinson recovered from the contents of the 
stomach 0.23 grain strychnine, equivalent to 0.2947 grain 
strychnine sulphate, or J grain strychnine sulphate. 
From portions of the kidney, liver, and brain, which 
were examined together, Mr. Robinson recovered strych- 
nine equivalent to o.lo67grain strychnine sulphate, and 
from the muscle, strychnine equivalent to 0.1153 grain 
strychnine sulphate, a total of 0.222 grain strychnine 
sulphate, or 4 grain strychnine sulphate. 
Considering only the alkaloid that was absorbed, 
namely, that recovered from portions of the liver, mus- 
cle, kidney, and brain, by Dr. Marshall and Mr. Robin- 
son, there was recovered 0.0296 grain plus 0.0222 grain 
strychnine sulphate, or in the aggregate J grain strych- 
nine sulphate. This, then, was the amount of absorbed 
alkaloid calculated as strychnine sulphate recovered from 
the twenty wounds of tissues examined by the chemists. 
The quantity of unabsorbed alkaloid recovered from the 
intestines was equivalent to 0.0236 grain strychnine sul- 12 
phate, and from the contents of the stomach was equiva- 
lent to 0.2947 grain strychnine sulphate, making the 
quantity of unabsorbed alkaloid recovered equivalent 
to 0.3479 grain strychnine sulphate. 
After the conclusion of the other expert testimony I 
was put upon the stand. In answer to the direct ques- 
tion, I said (page 209) : 
“My opinion is that the death (Reuben Zelner) was due 
to strychnine-poisoning. The cause of death was strychnia.” 
In answer to another question, I said (pp. 209-210); 
“ The minimum toxic dose of strychnia that has taken life 
in the adult is from I to I grain. According to the testimony 
here given, £ grain of strychnia was obtained from the body 
of the deceased, and was obtained from only a portion of the 
soft tissues, which were so scattei-ed and so selected that it 
is a practical certainty that only a portion of the strychnia 
that was in the body was obtained by the chemists. So that 
there was present, without doubt, more than the minimum 
fatal dose of strychnia in the body of Mr. Zelner.” 
Also, in regard to the cumulative effect of strychnia, 
(page 210): 
“ My experience is that no evidence of the accumulation 
of strychnia can ever be obtained. On the other hand, it 
usually loses its influence, so that when used continuously 
with good effect, we have to give it in ascending or slightly 
increasing doses. There are some authorities, especially 
some of the Germans, who believe that strychnia accumu- 
lates. As the result of very wide study and enormous ex- 
perience and much reading, I do not believe that this 
occurs.” 
Further, in reply to questions asked, I stated with 
details the differences between the symptoms of tyro- 
toxicon-poisoning and those of strychnia-poisoning, 
and in answer to the following direct question gave the 
appended answer: 
Page 212, (Official stenographic report.) 
“ Q. Referring you again to the symptoms as described by 
Sergeant Hoffman, to the actual finding of a toxical dose of 
strychnine in this body, and to the negative results of the 13 
post-mortem examination, can you say that death was due 
here to strychnia-poisoning, and exclude tetanus and tyro- 
toxicon ? 
“A. I don’t think the symptoms resemble tyrotoxicon- 
poisoning; not according to all experience does it resemble 
it at all. When the question comes between tetanus and 
strychnia-poisoning, the symptoms are more consistent with 
those of ordinary strychnia-poisoning than they are with 
tetanus-poisoning, in their greater abruptness and greater 
rapidity. There are no post-mortem lesions, either for 
strychnia or in tetanus, which are characteristic, leaving out, 
of course, the question of the cultivation of the fluids and 
the finding of the bacillus. As the symptoms were consistent 
with those of strychnia-poisoning, and more consistent with 
those of strychnia-poisoning than any other disease, as 
tetanus, and as the post-mortem lesions were consistent with 
strychnia-poisoning, and as a fatal amount of strychnia, ora 
sufficient amount to cause death, was found in the body of 
the deceased, I crn’t get away from the conviction that the 
case was one of strychnia-poisoning.” 
With the guilt or innocence of the prisoner at the 
bar the expert has really nothing to do, and so I shall 
say in this article nothing whatever concerning the 
testimony given at the trial for the purpose of connect- 
ing the prisoner with the alleged poisoning. Probably 
no case of strychnia-poisoning in the world’s medico- 
legal annals has been better demonstrated than in 
the present instance. Dr. Marshall produced in the 
court-room, in several glass dishes, a quantity of 
crystalline strychnine, equivalent toT*¥ grain of strych- 
nine-sulphate. If our legal methods of trial were 
constructed for the purpose simply of finding out the 
truth in accordance with the dictates of common sense, 
these crystalline residues would have been referred to 
a third chemist, who in the presence of the chemists of 
the prosecution and the defence would have either con- 
firmed or overthrown the statement that these residues 
were pure strychnine. Under the asgis of the law, how- 
ever, very properly from their point of view, the coun- 
sels of the defendant proceeded to refer the testimony 
and not the residues to experts, or persons willing to 14 
appear as experts. Dr. Hobart A. Hare was consulted 
by the attorneys for the defence, but gave the positive 
opinion that the case was one of strychnine-poisoning 
and consequently he was not called upon to testify. 
Of the experts who were willing to appear upon the 
stand, Dr. George H. Meeker, Professor of Chemistry in 
the Medico-Chirurgical College, impugned the testi- 
mony of the chemists; while Dr. J. V. Shoemaker at- 
tacked that of the medical expert. The testimony o( 
these gentlemen is, of course, too long to be quoted in 
a journal article, and under the circumstances a pro- 
longed analysis of the testimony is hardly called for. 
Dr. Meeker said of the alkaloidal residues that Dr. Mar- 
shall and Mr. Robinson had sworn to be pure strych- 
nine (Official Testimony, pp. 381-882): 
u I say that it is pot a justified conclusion to say that it is 
all strychnine. I will go further in that and say that it is 
not a necessary conclusion that there is any strychnine there at 
all. My reason for saying that is this : Alkaloids are divided 
according to their genesis—the sources from which they are 
obtained—conveniently into two classes, termed the vegeto- 
alkaloids and the animal alkaloids. Among the vegetable 
alkaloids, of which strychnine of course is one, being obtained 
from the Strychnos nux vomica—among these vegetable 
alkaloids there is one alkaloid, which, according to some 
authorities gives the same tests as strychnine. This alkaloid 
is the alkaloid aspidosperrniue.” 
Later in his cross-examination Dr. Meeker named 
pellagrosine as an animal alkaloid (ptomains) that gave 
the strychnine color-reactions. 
Dr. Meeker went still further than this in his testi- 
mony at least giving the impression that there are no 
known tests to distinguish quinine in such an alkaloidal 
residue as was obtained by Dr. Marshall and Mr. Rob- 
inson. 
He said, see 0. T., p. 405, in answer to a question from 
the district attorney : 
“A. To discover in this alkaloidal residue that it was 
partly comnosed of quinine. I can’t outline any satisfactory 
test. 15 
“Q. You cannot? 
“A. I cannot. 
P. 406: 
“ Q. Before passing away from the present point of inquiry, 
I want you to tell me ‘ yes,’ or ‘no,’ whether there are tests 
liy which the presence or absence of quinine can be disclosed 
to the chemist. I want an answer ‘ yes ’or ‘ no.’ 
“A. I can’t answer differently from what I did before.” 
The examination of Dr. Shoemaker, through no fault 
at all of his, was proceeded with in a manner that, if it 
be imitated, must in itself destroy the value of expert 
testimony in any case. The opinion of Dr. Shoemaker 
that the case was not made out to be one of strychnine- 
poisoning, appeared, according to his own statements 
on the stand, to be based upon the consideration of the 
whole testimony ; for in answer to the question of the 
district attorney, he said (pp. 612-613): 
“Q. Are you aware that it has been testified that T of 
a, grain of strychnine was found in the stomach of this man ? 
A. I read that testimony, and then I read what Dr. 
Meeker said, or rather I heard Dr. Meeker take into ques- 
tion the accuracy of this test and the accuracy of the other 
tests. In fact, I observed him making this demonstration, 
point:ng out that possibly there might be some quinine in 
combination with the strychnine. 
“Q. Is that what affects your judgment ? 
“A. Is that what affects my judgment ? 
Q. Yes. In what way ? Do you first assume to pass 
upon the two kinds of testimony and . determine which is 
right and which is wrong, and then formulate your opinion 
based upon the result? 
“A. I am not formulating an opinion.” 
Further, in another place (p. 617), Dr. Shoemaker 
said in reply to a question by the district attorney : 
“Q. I am asking you one point at a time. What influence 
upon your judgment would the finding in the stomach of 
jYff of a grain of strychnia have ? 
“A. I would want to be certain that strychnia was found. 
“Q. But when you come here to testify upon this question 
you must assume that the evidence you have read is true. 
“A. But I don’t assume that.” 16 
It is plain that when there is conflict of chemical 
testimony if the ex pert gives medical testimony upon the 
whole case he must take upon himself the function of the 
jury, because he must assume, as the basis of his opin- 
ion, that one set of alleged facts is true and the other 
false—that one chemist is right and the other wrong. 
It is further evident that so long as this is allowed 
in the courts there can never be anything but 
confusion. Dr. X, in a case like the present, will 
assume that the chemist who said there is strychnine 
present was correct; he will conclude that the death was 
due to strychnine. Dr. Y will assume that what the 
chemist who denied the existence of strychnine said is 
true; to him the death was not by poisoning. So soon 
as there are antagonistic assertions and denials of al- 
leged facts the expert opinions should evidently be 
given upon at least two hypothetical questions, one 
question being framed in accordance with one alleged 
set of facts of the case, the other in accordance with the 
other allegations. Which of the contradictory state- 
ments as to facts is proved by the testimony to be true 
it certainly is the province of the jury, not of the expert, 
to determine; and the application to the case in hand 
of the opinion of the expert should stand or fall as the 
jury finds the hypothetical question is or is not in 
accord with what it believes to be the facts of the case. 
The opinion of the expert should always be correct, but 
may or may not be applicable to the case. 
Besides the main question of whether or not Mr. 
Zelner’s death was due to strychnine, Dr. Shoemaker 
was called to prove that a man might be taking strych- 
nine in ordinary therapeutic doses when suddenly toxic 
and even fatal symptoms might occur. On this point 
he said (Examination in Chief, p. 609): 
“A. I believe that strychnia is very slowly eliminated 
from the body. As to whether it is destroyed within, lam 17 
unable to say. My impression is it is stored up, and often it 
will burst suddenly upon the system and give rise to this 
toxic effect.” 
“Q. Have you had a case of fatal poisoning from the ac- 
cumulation of strychnine administered medicinally ? 
“A. I have not, sir. I know of a man 
(Objected to). 
“Q- (Question repeated). 
“A. I have sud I have not, hut I have seen the toxic 
action of strychnine from what, in my experience and belief, 
was its cumulative effect in the system. 
“Q. It didn’t cause death ? 
“A. It didn’t cause death, hut probably it might have 
caused death. 
In his cross-examination he said (p. 621) : 
In cross-examination the district attorney attempted, 
among other things, to make Dr. Shoemaker acknowl- 
edge that the finding of \ grain of strychnine in the 
stomach would show that more than the medicinal dose 
of strychnine had been recently taken by the subject. 
His success is indicated by the following excerpts from 
the official record, page 625 : 
“Q. I want to know, sir, whether the fact that strychnia 
was found in the stomach here wouldn’t indicate to you, as 
a reasonable man and as a physician, that strychnia had been 
recently administered, and only a portion of it had been 
absorbed into the system. Isn’t that so? 
“A. Wouldn’t 1 assume ? Under no circumstances. 
Q. Wouldn’t it indicate that to your mind? 
“A. That would depend upon the surrounding circum- 
stances, sir, and the condition of the patient.” 
Page 626 : 
“Q- Wouldn’t that be the natural thought that would 
come from such a condition as that ? 
“A. It would be if I had prejudged the condition and 
wanted to come to the conclusion you want me to come to. 
“Q. Wouldn’t it be the fact, unless there was some excep- 
tional circumstances existing? 
“A. Why should there be some exceptional circum- 
stances existing ? 
“Q. Answer my question first. Wouldn’t that be the 
fact, unless there were some exceptional circumstances ex- 
isting ? 
“A. I should want to take into consideration the wh ole 
condition before I would agree with you on that point. 18 
“ Q- What would you require to take into consideration 
in order to answer that simple question? 
“ A. I would want to know if this patient had been upon 
strychnine, who had been administering, whether he had been 
taking strychnine himself, and the quantity of strychnine he 
had been taking.” 
“Q. Wouldn’t the finding of grain in the stomach, not 
taken into the system, indicate to you that more than a 
medicinal dose had been administered to that man? 
Page 627: 
“ A. It would not, because as much as that has been admin- 
istered to some individuals.” 
The next point in the district attorney’s inquiry was an 
attempt on his part to have Dr. Shoemaker trace the dis- 
tribution of poison through the system by the circula- 
tion after the absorption of the poison. As this piece 
of testimony seems to me worthy to rank among the 
curiosities of medico-legal literature I give it in full. 
Dr. Shoemaker’s Testimony. 
Page63l: 
“ Q. When the blood goes charged with its load to he car 
ried through the system from the digestive organs, where 
does it carry it first ? 
“A. Carried it through the system by the circulation. 
“Q. The system is the whole body. I ask you what part 
does it carry it to first, if you know. If you don’t know, say 
so frankly. 
“A. If I don’t know ? 
“ Q,. You don’t know. 
“A. You wanted me to say I didn’t. I t >ld you it was 
returned to the heart and then distributed by the circulation. 
“Q. Where? 
“A. It is taken up by the lymphatics and lacteals, and it 
is distributed and carried into the circulation, and carried to 
the different parts of the body. I don’t assume it goes to 
one particular spot, and neither do you. 
“Q. Can’t you tell where it goes first? 
“A. I don’t assume where it goes first. 
“ Q. Do you know ? 
“A. I have told you what I know. 
“Q. Answer me directly. Do you know where it goes to 
first ? 
“A. I told you it came back to the heart and from the 
heart, and from the heart it is distributed to the different 
organs. 
“Q. Comes from where to the heart? 19 
Page 632 : 
“A. It is taken up by the lacteals and lymphatics and 
carried into the circulation, and from the circulation it is 
distributed into the different organs. 
“Q. You can’t tell me, then, where it goes to first, in the 
course of circulation ? 
“A. I tried to tell you. 
“Q. No; you simply gave me the general system. You 
said llt goes back to the heart.’ Of course it goes back to 
the heart, and it comes back from the heart. 
“A. When does it reach the stomach by the circulation ? 
“ Q. From the heart to the stomach, how many,points 
does it pass ? 
“A. It reaches the stomach by the circulation. 
“ Q. I ask you how it does that ? 
“A. It is distributed by the coeliac plexus. It is back of 
the stomach ; supplies the stomach. I’ll tell you, if you 
want to know. 
“ Q. What vein is it that feeds the liver ? 
“ A. The portal vein. 
“Q. Where does it come from ? 
“A. It is given off the vena cava. 
“Q. Where? 
“A. From the vena cava. 
“Q. That is what? 
“A. That is a part of the portal circulation ; part of the 
veins. 
Page 633 : 
“Q. What is that ? 
“A. I told you it was given off the vena cava. That is 
part of the portal circulation. 
“Q. Won’t you describe in plain English what that is, so 
that a layman can understand it ? 
“A. In the first place, we have what is called the arterial 
circulation. Then we have what is called the venous circu- 
lation, and from the venous circulation we have the distribu- 
tion of the blood through the veins, and from the venous 
circulation we have the portal vein going to the liver. 
“ Q. You cannot tell, then, whether there is an even dis- 
tribution through the body or not ? 
“A. Can you tell me? 
“Q. I am not an expert like you, Doctor, and a great man. 
“A. Well, you want to put an answer in my mouth. 
“Q. I will ask you this question. Can you or can you 
not tell whether there is an even distribution through the 
circulation, of strychnine poison ? 
“ A. I wouldn’t undertake to say.” 20 
So far as the question of whether the death of Mr. 
Zelner was due to strychnine or not, when the defence 
rested its case, the situation was, that the prosecution 
claimed to have proven by its witnesses, (1) that there 
was in the body of Mr. Zelner more than a fatal dose 
of strychnine: J grain of strychnine (calculated as 
sulphate) in the stomach : \ grain in one-fifth of the 
soft tissues; (2) that the death had been sudden, with 
symptoms that were consistent with strychnine-poison- 
ing, without cause having been found at the autopsy ; 
(8) that the death was due to strychnine; whilst the 
defence, through its experts, claimed that the substance 
produced in court as strychnine by the chemists was not 
proved by them to be strychnine, but might be a mixture 
of quinine and strychnine, or even contain no strychnine 
whatever, being simply aspidosperrnine or an animal 
alkaloid, because these substances would respond like 
strychnine to the tests relied upon by the Common- 
wealth’s chemists, and that there was no proof that the 
death of Mr. Zelner was caused by strychnine. 
In rebuttal the district attorney attempted to show 
by Dr. Marshall, (1) that it was possible to recognize 
quinine if it had been present in the alleged strychnine, 
and that it was not present; (2) that the statement of Dr. 
Meeker that aspidosperrnine gives reactions like those 
of strychnine is not correct; Dr. Marshall had the 
aspidosperrnine in court, and proposed to demonstrate 
the difference before the court and the jury. It is some- 
what questionable whether such demonstration ought to 
be allowed in a court of justice, but as Dr. Meeker had 
been permitted to demonstrate that the color-reaction 
would occur in a mixture of strychnine and quinine as 
well as with pure strychnine no objection would seem to 
hold against a counter-demonstration by Dr. Marshall; 
in fact, no objection was made to such demonstration 
because the court refused to allow the rebuttal testi- 21 
mony before the district attorney had gone that far 
with Dr. Marshall. Whether the district attorney 
could or could not have gotten his rebutting testi- 
mony in evidence by putting it in some different 
form I am not lawyer enough to know; but evidently 
he thought the attempt useless, because he made no 
further effort. The following excerpt is from the offi- 
cial record ; 
Examination in rebuttal of Dr. Marshall by the 
district attorney. 
“ Q. You have been sworn and testified at length in lids mat- 
ter. I want t'> direct your attention to one or two particular 
points. Mr. Meeker was examined, and gave some illustra- 
tions which -were intended to show that quinine might be 
present in these tests which you made with the alkaloidal 
residue that was pronounced by you to be strychnine, and 
that in that way the question of the weight which you had 
given would be attacked. What have you to say as to the 
presence of quinine in the alkaloidal residue. 
“ (Objected to by Mr. Stevenson.) 
“ Mr. Graham. I propose to show that there was no 
quinine in the alkaloidal residue. I propose now, in the in- 
terests of truth and justice, to show before this jury by a 
test that there was no quinine in that residue. That removes 
the criticism absolutely, and it is in reply to the criticism 
made by Mr. Meeker. 
“ (Objection sustained.) 
“Q. Have you any knowledge of aspidospermine ? 
“A. I have. 
“Q. Was there any of this alkaloid in the residue which 
you found ? 
“ (Objected to by Mr. Stevenson. Objection sustained.) 
“(No cross-examination.)” 
Pages 643, 644 : 
The allegations that quinine when mixed with 
strychnine can not be recognized in an alkaloidal 
residue; that strychnine is liable to accumulate in the 
stomach or system and produce a sudden fatal outburst 
of symptoms; that aspidospermine gives the same 
color-reaction with sulphuric acid and potassium bi- 
chromate as strychnine; that the portal vein arises out 
of the vena cava—are equally correct, none of them 
being true; nevertheless, rebuttal was not permitted. 22 
It must be evident to every thinking expert that if 
the method of procedure and rulings that were followed 
in this case are to be followed in the future in the 
Philadelphia courts, it will be impossible, except under 
the rarest circumstances, to give that demonstration of 
death by poisoning which should be the basis of con- 
viction for murder by poisons. It will always be pos- 
sible for defending lawyers to find some one who, 
through ignorance, inadvertence, love of lucre, or other 
reason, will deny the simplest facts of toxicologic 
science. As stated by the district attorney in the course 
of the case, the law does not allow the contradiction of 
such statements by books ; if, therefore, it be not allow- 
able to rebut such allegations as those given in the 
present case, how is the truth to be made out? It is 
impossible for any chemist in the primary evidence to 
foresee and guard against all lines of attack by incor- 
rect statements to be made by the defence. If the val- 
idity of the tests relied upon by the chemist for the 
recognition of a certain alkaloid is called in question 
by the defence, which asserts that another alkaloid 
will respond to the same test, the Commonwealth must 
have the right to show that this is incorrect, or the truth 
cannot be established. 
The present difficulties surrounding medical expert 
testimony are great, but if the alternately loose and 
strict rulings given in the Zelner case are to be the 
pattern for the future, these difficulties have to my 
thinking become insuperable and another long step has 
been taken to the reductio ad absurdum of trial by jury.