professional standing of the medical college at which he studied. The witness may be asked if the death of the patient could be attributed to the unskilfulness or negligence of the defendant, and he may give his opinion upon the properties and effect of the medicine or other means employed, or may state the customary and proper practice in similar cases.

§ 194. Non-expert evidence upon a person's physical condition. A witness who, though he is not an expert, has had adequate opportunities for observation, may testify to all facts within his knowledge concerning the physical condition of a person, where such facts do not presuppose the possession of any special scientific or medical experience or training on his part; as, for example, to the fact that a person's leg was broken, or that he was unconscious on a certain date. So the evidence of a non-expert witness is admissible, though it may consist merely of an opinion, that a person seemed to be in good health or suffering from illness, as to the extent of the illness, or that a person who had been ill had grown better or worse.10 But where a witness has testified that a

6

Leighton v. Sargent, 11 Fost. (N. Fed. Rep. 75; People v. Millard, 53 H.) 120. Mich. 63.

2 Wright v. Hardy, 22 Wis. 348.

3 Barber v. Merriam, 11 Allen, 322; Mertz v. Detweiler, 8 W. & S. (Pa.) 376.

Twombly v. Leach, 11 Cush. (Mass.) 405; Doyle v. Eye & Ear Infirmary, 80 N. Y. 601. Cf. Link v. Sheldon, 18 N. Y. S. 815; Gates v. Fleischer, 67 Wis. 504; 30 N. W. Rep. 674.

5 Fox v. Penin. W. L. & Color Works, 92 Mich. 243; Rawls v. Am. Mut. L. Ins. Co., 27 N. Y. 282; Rash v. State, 61 Ala. 89; Smalley v. Appleton, 70 Wis. 349; 25 N. W. Rep. 729; Navarro v. State, 24 Tex. App. 578; Com. v. Sturtivant, 117 Mass. 122; B. & O. Turn. Co. v. Cassell, 66 Md. 419; Higbie v. Guardian L. I. Co., 52 N. Y. 603; Tierney v. Railroad Co., 24 Am. L. Reg. 669; Baltimore & O. R. Co. v. Rambo, 59

6 Montgomery v. Scott, 34 Wis. 338.

7 Chicago City R. R. Co. v. Van Vleck (Ill., 1893), 32 N. E. Rep. 262; Pennsylvania Co. v. Newmeyer, 129 Ind. 401; 28 N. E. Rep. 860.

8 Chicago City Ry. Co. v. Van Vleck (Ill., 1893), 32 N. E. Rep. 462; Lawson v. Conaway, 37 W. Va. 159; Doyle v. Manhattan Ry. Co., 59 Hun, 625; Baltimore & O. R. R. Co. v. Rambo, 59 Fed. Rep. 75; Hardy v. Merrill, 56 N. H. 227; United Breth. M. A. I. Co. v. O'Hara, 120 Pa. St. 256; Wilkinson v. Moseley, 30 Ala. 562; Barker v. Coleman, 35 Ala. 221; Evans v. People, 12 Mich. 27; Elliott v. Van Buren, 33 Mich. 49. 9 Heddles v. Chicago & N. W. R. Co., 46 N. W. Rep. 115; 71 Wis. 288. 10 Louisville, etc. Co. v. Wood, 12 N. E. Rep. 572; King v. Second Ave.

person never had any trouble with his hearing, he will not be permitted to give an opinion that the person's sight and hearing are ordinary in character.1

Where the symptoms of a disease are such that they are perceptible and recognizable by a person of ordinary knowlelge, a non-expert witness may testify, after stating the facts, that certain symptoms manifested themselves. But no witness except an expert should be permitted to give an opinion (except perhaps where the symptoms are indicative of a disease to the most casual inspection) as to the specific medical character of a disease or injury from which a person is suffering.1

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§ 195. Chemists as experts - Poisons.- Chemists and toxicologists are frequently called as expert witnesses. Thus, a chemist who is properly qualified may testify to the result of an analysis of the contents of the stomach or other bodily organs, made to ascertain the presence of poison. But a physician, though he may give an opinion that death resulted from the administration of a certain poison, or may describe the symptoms which are present when poison has been given,7 R. Co., 26 N. Y. S. 973. A non- 3 Duntzy v. Van Buren, 5 Hun, expert witness may give his opinion 648; Owens v. Kansas City, 95 Mo. upon the nature of an injury where 169. he has adequate knowledge of the circumstances. Goshen v. England, 21 N. E. Rep. 977; 119 Ind. 368.

1 Barrelle v. Penn. Ry. Co., 4 N. Y. S. 127. "Any witness of ordinary intelligence may be able to state that a sick or wounded person has grown worse, or has improved, without being able to give an accurate description of his condition. Undoubtedly the facts on which the conclusion rests may be asked for on cross-examination; but the opinion is not incompetent merely because the witness cannot state the ground on which it rests, although the failure to do so may, perhaps, weaken its probative force." Louisville, etc. R. Co. v. Wood, 12 N. E. Rep. 572.

2 See cases cited supra.

4 Where the defendant is sued to recover the value of a bust which he refuses to accept, claiming that it is not a good likeness, a witness who has for many years been well acquainted with the person whose bust is in dispute may testify upon the question of resemblance or likeness. Schwartz v. Wood, 21 N. Y. S. 1053; 67 Hun, 638.

5 State v. Bowman, 78 N. C. 509; Hass v. Marshall (Pa., 1888), 14 Atl. Rep. 421; State v. Cook, 17 Kan. 394; State v. Slagle, 83 N. C. 630; State v. Hinkle, 6 Iowa, 380; Joe v. State, 6 Fla. 591.

6 Mitchell v. State, 58 Ala. 418.

7 State v. Terrell, 12 Rich. (S. C.) 321; Polk v. State, 36 Ark. 117; People v. Robinson, 2 Park. Cr. Cas. 236.

will not be permitted to state the result of a chemical analysis, unless it is shown that he is experienced in chemical research.1 So the identity of the subject analyzed with that involved in the case, and the fact that it has not been tampered with, must be shown.2 The expert testimony of a chemist is admissible upon the effect of poisons 3 and noxious gases, to show that one man can safely inhale more gas than another; that certain particular gases are the result of a certain process; " as to the ingredients and nature of writing or other inks; to the safety of oil lamps, or to the quality of milk.9

§ 196. Expert evidence where sexual crimes have been committed Abortion.-A physician may testify, after an examination of the person, that there has been actual penetration in a prosecution for rape,10 and may give an opinion upon the question whether sexual intercourse was possible," and whether pregnancy would be likely to ensue where a rape was committed.12 So expert testimony is admissible to show the physical strength and condition of the prosecuting witness in a prosecution for rape where her ability to resist

1 State v. Cook, 17 Kan. 394. Contra, Siebert v. People, 32 N. E. Rep. 431.

9 Com. v. Holt, 146 Mass. 38. A witness to be qualified to testify to the nature and quality of food or

2 State v. Cook, 17 Kan. 394; State drink need not always be a profesv. Hinkle, 6 Iowa, 380. sional chemist or analyst. If the

3 Fox v. Penin. W. L. Co., 92 Mich. witness possess adequate knowledge 243. of the articles in question, his tes

4 Lincoln v. Taunton Co., 9 Allen timony is not incompetent becanse (Mass.), 122. he has not submitted them to a chem

5 Birmingham F. & N. Co. v. Gross ical analysis. So a farmer or dairy(Ark., 1893), 12 S. Rep. 36.

6 Citizens' G. L. Co. v. O'Brien, 118 Ill. 174; Turner v. Black Warrior, 1 McCall, 181. Cf. Emerson v. Lowell G. L. Co., 6 Allen (Mass.), 146.

7 Sheldon v. Warner, 45 Mich. 638; Goodyear v. Vosburgh, 63 Barb. (N. Y.) 154; In re Monroe's Estate, 23 Abb. N. C. 83; 5 N. Y. S. 552; People v. Brotherton, 47 Cal. 388; Ellingwood v. Brogg, 52 N. H. 448; Clark v. Bruce, 12 Hun, 271; Allen v. Hunter, 6 McLean, 303.

8 Bierce v. Stocking, 11 Gray, 174.

man may testify whether milk was diluted and whether it tasted like milk and water. Lane v. Wilcox, 55 Barb. (N. Y.) 615. And an habitual drinker of beer may be allowed to state that a certain liquor was lager beer. Com. v. Moinehan, 140 Mass. 463; 1 N. E. Rep. 59.

10 State v. Smith, 4 Phill. (N. C.) 302; Woodin v. People, 1 Park. C. C. (N. Y.) 464. Cf. Com. v. Lynes, 142 Mass. 577.

11 People v. Clark, 33 Mich. 112.
12 Young v. Johnson, 123 N. Y. 226.

the prisoner is in issue.1 A physician may testify to the time required to commit an abortion; 2 that an abortion has been performed, and that certain drugs or instruments which have been found in the possession of the accused were adapted to produce an abortion. So a physician may be asked if, under certain circumstances, any traces of an abortion would remain after one had been committed or attempted."

§ 197. Expert evidence upon insanity. According to the weight of authority, a non-expert witness who has had adequate means of becoming acquainted with the mental state of a person whose sanity is in issue may give his opinion upon the sanity or insanity of the individual. In doing so, however, he will be required to state all the facts and circumstances within his knowledge bearing on the question and on which his opinion is based. The opinion of a non

professional witness as to insanity upon facts related to him by others is not admissible. But where he has knowledge of the circumstances, where he has seen the actions of the person and conversed with him, the law considers it a matter easily within the mental capacity of any ordinary man to distinguish and characterize the mental condition or the appearance and conduct of an insane person. The influence which his opinions may have upon the jury will depend on the intelligence he shows on his examination and upon his opportunities for acquiring the knowledge upon which he bases his conclusion. So his experience and personal acquaintance with the alleged lunatic, his freedom from bias or interest, the absence of any finely-spun theories from his mental conception of the whole matter, the fullness of the facts on which his opinion is based, and the accuracy with which he recollects these facts, are all elements to be regarded in estimating the worth of his evidence. The person whose insanity is involved may have been so deranged, his mental unsoundness may have been so palpably apparent from his actions, that an ordinary person possessing but slight powers of observation may be as well fitted to express an opinion as the most skilful and learned expert. Here the insanity is a fact, and the testimony of the witness, though in form an expression of opinion, yet if when giving it he narrates the minor facts from which it is deduced, and after showing that he has personally known the party for a long time, he details the furious acts and gestures, the foolish and incoherent conversations, or the wild and unnatural conduct of the party, there can be small objection to his testifying to the further fact which any man would infer from them, i. e., that the party was insane. But as to

N. Y. 544; 30 N. E. Rep. 725; Fayette v. Chesterville, 77 Me. 28; Hickman v. State, 38 Tex. 191; State v. Geddis, 42 Iowa, 268.

1 Cf. Armstrong v. State, 30 Fla. 170; McLeod v. State, 31 Tex. Crim. Rep. 331.

2"The opinion of a non-professional witness as to the mental condition of a person, in connection with a statement of the facts and circum

stances within his personal knowledge upon which that opinion is formed, is competent evidence. In a substantial sense, and for every purpose essential to a safe conclusion, the mental condition of an individual as sane or insane is a fact, and the expressed opinion of one who had adequate opportunities to observe his conduct and appearance is but the statement of a fact. Insanity is a