Burlington weekly free press. [volume] (Burlington, Vt.) 1866-1928, 1881-04-22


whatever you decide that the truth requires
iou to testify to. Every question admits Of
| definite answer. You may be obliged to |
say you don't know :; that is definite. Many |
questions will not admit of a categorical re- |
ply or of positive demonstration in reply; |
but all can have clear and definite treatment,
which will give to the jury the precise ill.,
that is TO be given.
4. Don't employ technical phraseology- 1t |
is, of course, accurate and proper in its |
place but it is useless 10 employ 1t where it |
cannot be understood.
4 Remember that it is the witnesses duty
to tell the whole truth" When you have
answered the questions put, which may be
framed SO as 10 call out but part
of the truth, add, as there is always oppor-
tun:tY to do,-whatever explanation is need
cd to present the whole truth on the point.
By observing these rules, any physician of
respectable attainments can testify upon a
subject which he understands, and acquit
himself creditably end without fear that his
testimony will be impugned-
ZEAL ISsANIrY.
The question of insanity comes into
courts OF law in four ways. LIST, as de-
fence to criminal prosecution. I'd, in Its
effect on civil contracts. Sd, in its relation
to the judicial power Of placing insane persons
under guardianship, and 4th, in reference to
the disposition of property by will. This
last point, he said he should consider in con-
necton with another branch of the general
subject. The most important of these di-
visions is the first. Under our modern sys-
TEN of law, insanity, existing in sufficient
degree, is defence against all criminal
prosecutions. small or great, a criminal mo-
tive being requisite in order to make any
act criminal offence. 1t is, however, so
seldom used as n defence for small offences
and so often in cases Of homicide, that it has
come, especially in this country, to be con-
sidercd tho special defence for murder. As
such i, has been abused to scandalous ey-
tent. Many persons who have been acquit-
ted of murder on the score of insanity,
are now walking free, whose insanity was
first heard of when they committed the
crime and who have showed no signs of
it since. The lecturer laid at the door Of the
medical profession large share Of the re-
spunsibiity forthe mischief that has followed
the abuse OF this defence. Though other
tests of insanity may be and are admit
ted on evidence, the medical testimony in
such cases is commonly decisive. 1t is
difficult 10 define insanity with precision.
There are all degrees of mental alteration.
perfectly sound mind, is, perhaps, as rare as
u perfectly symmetrlcalbody. How are we
to define the stage or degree which may be
properly called insanity:
| Insanity is divided into cOngenital, and
| that which occurs after development of the
mental faculties. This second class may be
subdividcd into mania and dementla, that
is into arrangement of existing faculties and
| loss Of facultie5 which previously existed.
! AL .. ihesc may be total or partial. In
| violent and pronounced cases no legal
questions arise, such questions being con-
| fined practically to cases of congenital i'm
becili,y and partial mania.
The courts have laid down certain rules
for guidance as regards the degree of
insanity which should exempt person from
criminal prosecution.
As stated by Chief Justice Shaw of Mas
sachusetts, in every case there is to be q
presumption of sanity till the contrary ap-
| pears and then the mental disease must
exist 10 degree which obliterates the capac-
ity TO distinguish between right and wrong
in reference 10 the particular act in question.
II he is sane enough to understand the ma
ture of the act partial insanity should not
exempt aman from punishment. An eminent
New York Judge has said substantially the
the true test lies in the word polrer. The
question is if the man had the power to dis
tinguish the right and adhere to it, and to
avoid the wrong.
These distinctions show a great change
since the case of Bellingham, who shot q
Prime Minister of England in 1912, and was
hung as murderer and his body dissectet
within eight days after the act. There is nc
doubt that Bellingham was insane. But TIT
eminent English lawyer Romilly argued ant
Lord Chancellor Eldon held that though hi
was mai his madness was of a species which
could not he allowed to exempt man from
criminal responsibility Only complete mani
acy was then n sufficient defence. There hai
been large progress on the side OF mercy t
tine individual, since then; but looking at TIT
protection of society and seeing how this
humane rule has been abused and misappliet
we see that there is something TO be said 10
the old Iule. Such abuse has even weak
encd the defence of insanity in cases wher
it could properly apply.
PATENT AND MISUNDERSTANDING
In brief introduction, Mr.. Phelps men
toned the fact that confidential communica
tions made by patient to a physician ar
not protected from disclosure in courts o
Justice, when the physician is called as
witness, though he thought they ought t
be, and he hoped in time would be, hell
as sacred rs communications between ellen
and lawyer. While the present rule remains
it is therefore wise for the physician not I
invite any confidential disclosures not mad
necessary by professional duty, and when o.
the stand To he careful not TO lead the wa,
to inquiry from counsel, concerning know
edge gained by such disclosures.
Recurring TO the subject of Insanity, as
defense against criminal prosecution, tn
lecturer alluded to cases of insanity got up Il
nm excuse for murder There are two theorle:
Of this kind Of insanity. One is that there maj
he a partial moral insanity as they call II
affecting the conduct of the criminal, not onl,
as to the particular act, but as to acts Oh ina
class, and causing an uncontrOllaDie lHPuis
lo assassination. The other is that there is
kind of emotional insanity" which seem
10 be confined to cases of murder, and whicl
is a sudden insanity which attacks a maj
and lasts Only long enough for HIM to XII
some one and is founded on his intense de
sire to ID the deed. The lecturer argue'
forciblv and at length that these theories ar
rs much opposed 10 common sense ms to com
mon Justice Disease, he remarked, doe
not come and leave mind or body, IN tina
sudden way He alluded TO cases OF mur
dereTs acquitted on the score of emotions
insanity. where Insanity consisted simply Il
intense desire to destroy their victims an
expressed The hope that if any OF his nearer
should ever I've led to testify in court, IN
way to sustain either of these specious thee
ries they would add that their views OF th
subject were not learned nj the University @
Vermont.
INs,.Ifi FURTHER CONSIDERED.
Taking M the subject of insanity rs affect
inr civil contracts, Mr. Phelps said that
person recognized as of unsound mind VIII b
relieved from the perfOrma nce OF 'execu
tory" contracts that is, OF contracts nc
completed In regard TO contracts alread
performed. courts will not extend relief, eN
cent in cases where ii is shown that the pei
son WAS ol unsound mind when he entere
the contract and that the other party theret
knew. or at least ought 10 have known, tina
he was moi in condition Of mental capacity
Contracts of a simple and equitable nature
and with no advantage taken of either party
l will commonly be sustained by the courts
The LEGAL rule as TO this is that IN order
sci aside a contract otherwise regular, the mer
tai imbecility or arrangement must be sucha
4 to deprive the person of the power OF exercls
inv ordinary indsmeni and must have been $
manifested that 1t should have put the othc
Marty on his guard Yet sometimes insanlt
EXISTS in such subtitle form that it Is Din
I cult to obtain from the insane person, espt
& cially if he perceives the purpose OF counse
distinct evidence of il. A case is relate
when u lawyer, having an insane person o
,riaJ IN all nnssihla WAYS In lIrpc