FIELD'S

MEDICO-LEGAL GUIDE,

FOR

DOCTORS AND LAWYERS.

CHAPTER I.

MEDICAL WITNESSES.

§ 1. Compulsory attendance.

A physician or surgeon may be required to appear and testify in courts or before judicial or other officers, either as an ordinary witness or as an expert, and either orally or by deposition, in the same way as a non-professional person, that is, upon due service of a subpoena upon him, commanding him to do so. In various states the party thus served with a subpoena may, at the time of service, if it be in a civil case, demand fees in advance, usually fixed by statute,

as for one day's attendance and mileage; and a failure to pay him such sum would usually constitute an excuse for non-attendance. Witness fees are fixed by statutes in the various states, and the amount may vary in different courts in the same state. And usually in the various states expert witnesses are allowed more than common witnesses for attendance, which amount is generally fixed by statutes. When a subpœna

has been duly served, and the fees advanced when demanded, if the witness is entitled to advance fees, it is the duty of the person thus served to obey the command of the writ, and a failure to do so without some reasonable cause,- such as physical infirmity or some accident which rendered it impossible, would be a contempt of court, and subject the offender to fine or imprisonment or both. On these subjects it may be necessary to consult the local statutes, or some lawyer, for information where it is important: See 1 Greenl. on Ev., §§ 309, 310; Best on Ev. (Morg. Am. ed.). § 125; 3 Field's Lawyers' Briefs, §§ 297, 335; 1 Phil. on Ev. 116; Field's Fed. Courts, § 225; Rev. Stat. U. S., §§ 848,

870.

§ 2. The oath-religious belief.

Passing all questions relating to the compe. tency of witnesses in general, we will consider briefly the oath, affirmation or asseveration required of the witness, by which he promises to tell the truth in reference to matters under consideration and to which he is called to testify.

It was affirmed by Lord Coke, who represented the bigotry of the age in which he lived, that an infidel could not be a witness, which would exclude Jews, Mohammedans and all pagans, and in fact all who were not Christians: 7 Co. 17; Puffendorf, b. 4, c. 2, § 4; Best on Ev. (Morg. Am. ed.), § 134. A former test of the qualification of a person to take an oath was that he believe in a God who will punish false swearing in a future life. But these tests have generally been discarded by custom or abolished by statute.

The form of administering the oath may be varied to conform to the religious belief of the individual, so as to make it binding upon his conscience; and it may be administered by any ceremony calculated to accomplish the object.

A Jew may be sworn upon the Pentateuch or Old Testament (with his head covered); a Mo

hammedan on the Koran; a Gentoo by touching with his hand the foot of a Brahmin or priest of his religion; a Brahmin by touching the hand of another such priest; a Chinaman by breaking a China saucer; a Christian by laying his hand upon the New Testament while a familiar formula is repeated.

In various states, under statutes, it is sufficient for the witness merely to hold up a hand while the usual formula is being repeated by the proper officer. And in most of the states he may merely declare or affirm, if he elects so to do, the proper officer in the presence of the witness merely stating that the witness does so declare or affirm that he will tell the truth, to which the witness assents orally or by a nod of the head: See Bouv. L. D., Oath; Best on Ev. (Morg. Am. ed.), § 163; 1 Greenl. on Ev. (7th ed.), § 328; Tyler on Oaths, 15; 1 Whart. C. L. (7th ed.). §§ 795-799; 3 Field's Lawyers' Briefs (sub. Evidence), § 302.

The objection to the competency of witnesses who have no religious belief is removed in England and in most of the states by statutory enactments: 1 Whart. on Ev., § 395.

CHAPTER II.

MEDICAL EXPERT TESTIMONY.

§ 3. In general; opinions of medical men.

Expert witnesses are those who are admitted to testify from a peculiar knowledge of some art or science, a knowledge of which is requisite or of value in settling the point at issue: Bouv. Law. Dic., Experts. They are persons professionally conversant with the practice, science, skill, or trade in question: Best on Ev., § 346; Strickel on Ev. 408.

On this subject Mr. Greenleaf observes: “On questions of science, skill or trade, or others of a like kind, persons of skill, sometimes called experts, may not only testify to facts, but are permitted to give their opinions in evidence. Thus the opinions of medical men are constantly admitted as to the cause of disease or death, or the consequences of wounds, or as to the sane or insane state of a person's mind, as collected from a number of circumstances, and as to other subjects of professional skill. And such opinions