MEDICAL EVIDENCE. Testimony given by physicians or surgeons in their profes sional capacity as experts, or derived from the statements of writers of medical or sur gical works.
This kind of evidence was first recognized by Charles V. of Germany, and incorporated in the "Caroline Code," framed at Ratisbon in 1532, where in it was ordained that the opinion of medical men —at first surgeons only—should be received in cases of death by violent or unnatural means, when sus picion existed of a criminal agency. The publi cation of this code encouraged the members of the medical profession to renewed activity, tending greatly to advance their science and the cause of justice generally. Many hooks soon appeared on the subject of medical jurisprudence, and the im portance of medical evidence was more fully under stood. Elwell, Malp. & Med. Ev. 285.
The evidence of the medical witness is strictly that of an expert ; Elwell, Malp. & Med. Ev. 275; 1 Phill. Ev. 780; 1 Whart. Ev.
In the case of Com. v. Rogers, 7 Mete. (Mass.) 505, 41 Am. Dec. 458, Shaw, C. J., presiding, the court held that the proper question to be put to the professional witness was: "If the symptoms and indications testified to by other witnesses are proved, and if the jury are satisfied of the truth of them, whether in his [the witness's] opinion the party was insane, and what the nature and char acter of that insanity ; and what state did they in dicate, and what he would expect would be the con duct of such a person in any supposed Circum stance." Under this ruling •the medical witness
passes upon the condition of the person whose condi tion is at issue. To do it correctly he must hear all the evidence that the jury hears; he must judge as to the the evidence of others, and make an application of the facts that legally and prop erly hear upon the case to it, and reject all others ; In short, be Is judge and jury in the case. Sinoe the trial of Rogers, a different rule has been adopt ed by the courts in Massachusetts. In the case of the United States v. MeGlue, reported in 1 Curt. 1, Fed. Cas. No. 15,679, Mr. Justice Curtis instructed the jury that medical experts "were not allowed to give opinions In the case."