PRACTICAL TESTS IN EVIDENCE. VII.
By Irving Browne.
' I ^HE latest instance of an experiment, or -*rather of the exhibition of the human body in court, which has come to my notice, was on the criminal trial in the city of New York a few weeks ago, before Recorder Smyth, of Dr. Parkhurst's detective, where the judge ordered the defendant to rise in court to enable a witness to identify him. The judge claimed that his counsel interfered to prevent his obeying, and thereupon fined counsel for contempt. In Osborne v. City of Detroit, U. S. Cir cuit Court, E. D. Michigan, Oct. 25, 1886, 32 Fed. Rep. 36, an action for injuries oc casioned by a defective sidewalk, where the plaintiff claimed to be paralyzed by the fall, and it was held not error to permit her medical attendant who had not been sworn, to demonstrate her loss of feeling to the »jury by thrusting a pin into the side which plaintiff claimed to be paralyzed. The court said : —
nizes no oaths to be administered upon the witnessstand except the ordinary oath to tell the truth, or to interpret correctly from one language to another. The pin by which the experiment was performed was exhibited to the jury. There was nothing which tended to show trickery on the part of the doctor in failing to insert the pin as he was re quested to do, nor was there any cross-examination attempted from the witness upon this point. Coun sel was certainly at liberty to examine the pin, and to ascertain whether in fact it was inserted in the flesh, and having failed to exercise this privilege, it is now too late to raise the objection that the exhibition was incompetent. It is certainly com petent for the plaintiff to appear before the jury; and if she had lost an arm or a leg by reason of the accident, they could hardly fail to notice it. By parity of reasoning, it would seem that she was at liberty to exhibit her wounds if she chose to do so, as is frequently the case where an ankle has been sprained or broken, a wrist fractured, or any maiming has occurred. I know of no objection to her showing the extent of the paralysis which had supervened by reason of the accident, and evidence that her right side was insensible to pain certainly tended to show this paralyzed condition."
"Objection was made to this upon the ground that the doctor was not sworn as to the instrument he was using, nor was the plaintiff sworn to behave naturally while she was being experimented upon. It is argued that both the doctor and the plaintiff might have wholly deceived the court and jury without laying themselves open to a charge of perjury, and that plaintiff was not even asked' to swear whether the instrument hurt her when it was used on the left side, or did net hurt her when used on the right side; in short, that there was no sworn testimony or evidence in the whole per formance, and no practical way of detecting any trickery which might have been practised. We know, however, of no oatli which could be admin istered to the doctor or the witness touching this exhibition. So far as we are aware, the law rcco-'-
Height of man.-— When I was preparing that rhymed version of " The Giant Brakeman" (Hunter v. Railroad Co., 116 N. Y. 115, 3 Green Bag, 543), in which the plain tiff contended that, sitting on the top of a freight-car, he struck with his head the roof of a tunnel four feet eight inches above the top of the car, and it was left to the jury to say, by looking at him, whether this was pos sible, and they said it was, it occurred to me that it would have been a shrewd move on the part of the defendant's counsel to offer to have him measured as he sat in court. This, I am informed, was done on the new trial, and he proved to be one inch shorter than the average. But he rose to the oc
EXPERIMENTS (continued). — UPON LIVING HUMAN BODIES.
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