SCIENTIFIC PROOF AND RELATIONS OF LAW AND MEDICINE
Authors: Hubert W. Smith
Journal: Annals of Internal Medicine (1943)

Article1 April 1943SCIENTIFIC PROOF AND RELATIONS OF LAW AND MEDICINEHUBERT W. SMITHHUBERT W. SMITHAuthor, Article, and Disclosure Informationhttps://doi.org/10.7326/0003-4819-18-4-450 SectionsAboutPDF ToolsAdd to favoritesDownload CitationsTrack CitationsPermissions ShareFacebookTwitterLinkedInRedditEmail ExcerptThe anvil of the law has always resounded to the striking iron of science. Some tough metal has been beaten out there, sometimes into curious shapes, and few members of the populace can have failed to hear the reverberating blows or to see the cascading sparks which fly from those impacts. Despite all this, there is a cloud of uncertainty, an obscuration of terms, a lack of sharp definition which tend to invest vital aspects of law-science correlations with a curious mystery.One of the fair sex who had attained to the pinnacle of 15th Vice-President of the American International...1 Transactions of the American International Medico-Legal Congress of 1893 (1893) 11 Medico-Legal Journal 162. Google Scholar2 Address before New York Academy of Medicine, Bull. New York Acad. Med., 1929, v, 581. Google Scholar3 The present paper introduces a Symposium Series on "Scientific Proof and Relations of Law and Medicine." As I proceed, I shall draw attention to studies prepared by fellow authors. An asterisk will be used immediately preceding each reference to a symposium article. Google Scholar4 To borrow a homely phrase of the Texas rancher, our ideal in Scientific Proof is "to build the fence horse high, pig tight and bull strong." The primary ideal of Scientific Proof is to eliminate error and to secure truth by these means: (1) The use of all appropriate methods of corroboration, with accent on diverse sources and types of evidence; (2) The eventual grading of all types of evidence according to relative probative value; (3) Development of usable criteria and safeguards in respect to each type of evidence; (4) Promotion of complete understanding among courts, lawyers and experts of the pitfalls and potential errors of each species of evidence in order to enable wise cross-examination; (5) Development of appropriate legal mechanisms and modes of trial; (6) Repression of preconceptions and psychological predilections in the trial process and accentuation of the logical and scientific aspects of evidence. See Smith, H. W., Components of Proof in Legal Proceedings, (Feb. 1942) 51 Yale L. J. 537. Google Scholar5 On occasion he may derive his opinion from examinations first made in the course of preparing himself to testify in court. Still again, under our practice, if he is properly qualified, he may express an expert opinion on the basis of hypothetical questions put to him by counsel, even though he has no personal knowledge of the case. Google Scholar6 Chafee *, Privileged Communications: Is Justice Served or Obstructed by Closing the Doctor's Mouth on the Witness Stand? ANN. INT. MED., 1943, xviii, 606, 53 Yale L. J. (April 1943) —. Google Scholar7 LaddGibson *, Legal-Medical Aspects of Blood Tests to Determine Intoxication, ANN. INT. MED., 1943, xviii, 564, 29 Va. L. Rev. (April 1943) —. Google Scholar8 *Morgan, Suggested Remedy for Obstructions to Expert Testimony by Rules of Evidence, 2 Clinics (April 1943) 1627, 20 U. of Chi. L. Rev. (April '43) —. See, also, Chafee, supra, note 6, and Ladd and Gibson, supra, note 7. Google Scholar9 In the Tuckerman will contest, tried before Judge McKim in Suffolk Probate Court (Mass.), attorney Robert M. Morse put to Dr. Jelley, a psychiatrist, what is reputed to be the longest hypothetical question on record. It concerned the mental condition of the testator, contained twenty thousand words and required three hours to propound. The witness answered: "I don't know." (April 1907) 5 Ohio L. Rep. 45. Google Scholar10 This device would permit a much closer surveillance of the excessiveness or inadequacy of monetary awards. The present appellate practice of determining whether the judicial conscience is "shocked," by looking to see what other courts have upheld in supposedly similar cases at other times and places involves several undesirable factors. It is not possible to make "book comparison" of any but the simplest injuries. Google Scholar11 Due process clauses, properly construed, require only a fair and regular mode of procedure and trial, and this need not be by jury. Abolition of grand jury indictment in criminal cases does not violate the due process clause of the Federal Constitution (Art. XIV: "Nor shall any State deprive any person of life, liberty or property without due process of law"), if the substitute procedure of prosecution on information is designed to give the accused a fair hearing. Hurtado v. People of California, 110 U.S. 516 (1884). As to whether jury trial can be validly dispensed with in the trial proper of a criminal case, however serious the offense, see McGovney, Cases on Constitutional Law, (2d ed.) (1935), n. on p. 568. Most state constitutions have specific provisions which operate to preserve the right to trial by jury in cases in which it existed at common law. Google Scholar12 Austin & N.W.R.R. v. Cluck, 97 Tex. 172, 77 S.W. 403 (1903). This is not because a defendant has no right to the evidence, says the court, but because no legal sanction exists for compelling plaintiff to submit; silence of English common law is inferentially against such a jurisdiction, Texas statutes or constitution do not confer it, and a trial court cannot acquire it by implication from necessity. The spirit of the constitutional guarantee against unreasonable search would be violated. Google Scholar13 U. S. Code Ann., Title 28, section 723c: Federal Rules of Civil Procedure for the District Courts of the United States. Preparation authorized: Act of June 19, 1934, c. 651, 48 Stat. 1064; put into effect Sept. 16, 1938. Google Scholar14 Acts and Resolves of Massachusetts, 1921, ch. 415; Ann. Laws of Mass. (1942), C. 123, section 100 A. (The so-called "Briggs" law.) Google Scholar15 Overholser, The Briggs Law of Massachusetts: A Review and an Appraisal, (1934-35) 25 J. Crim. L. & Crimin. 859-883. Google Scholar16 Even if initially he has ruled the witness competent, the trial judge may reverse his ruling in the course of trial and intercept further questions when the trend of testimony shows the alleged expert to be incompetent. Carbonneau v. Lachance, 307 Mass. 153, 29 N.E. (2d) 696 (1940). Google Scholar17 *Solomon, H. C., and Smith, H. W., Traumatic Neuroses in Court, 99 Am. J. Psychiat. (May-June 1943), —, 29 Va. L. Rev. (April 1943) —. Google Scholar18 BrahdyKahn *, Clinical Approach to Alleged Traumatic Disease, ANN. INT. MED., 1943, xviii, 491, 23 B. U. L. Rev. (April 1943) —. *Moritz, The Mechanisms of Head Injury, Ann. Surg., 1943, cxvii, —, 23 B. U. L. Rev. (April 1943) —. *Denny-Brown, Factors of Importance in Head Injury, A General Survey, Clinics, 1943, ii, 1405, 29 Va. L. Rev. (April 1943) —. *Munro, The Late Effects of Craniocerebral Injuries, A Consideration of the Criteria Necessary to Evaluate the Possible Causes, Ann. Surg., 1943, cxvii, —, 23 B. U. L. Rev. (April 1943) —. *Ebaugh and Brosin, Traumatic Psychoses, ANN. INT. MED., 1943, xviii, 666. *Solomon and Smith, supra, note 17. *Marble, The Physician and the Workmen's Compensation Law, Clinics, 1943, ii, 1441. Not in a law journal. *Schwartz, Problems of Proof in Claims for Recovery for Dermatitis, ANN. INT. MED., 1943, xviii, 500, 41 Mich. L. Rev. (April 1943) —. *Aldrich, Forensic Aspects of Burns with Special Reference to Appraisal of Terminal Disability, 29 Va. L. Rev. (April 1943) —. *Ober, Some Practical Criteria for Use in Forensic Orthopedic Cases, Clinics, 1943, ii, 1476, 15 Rocky Mt. L. Rev. (April '43) —. *Homans, Circulatory Deficiency in the Extremities in Relation to Medico-Legal Problems, ANN. INT. MED., 1943, xviii, 518, 21 N. C. L. Rev. (April 1943) —. *Pollock, Examination of Motor and Sensory Function as Related to Opinion Evidence, Clinics, 1943, ii, 1424, 53 Yale L. J. (April 1943) —. *Wolff, The Pain Threshold in Man, 99 Am. J. Psychiat. (March-April 1943) —. *Joslin, The Relation of Trauma to Diabetes, Ann. Surg., 1943, cxvii, —, 15 Rocky Mt. L. Rev. (April 1943) —. *Hertig and Sheldon, Minimum Criteria Required to Prove Prima Facie Case of Traumatic Abortion or Miscarriage, 117 Ann. Surg. (April 1943) —. *Bennett, Medical Criteria Which Govern Relations of Trauma to Joint Disease, Clinics, 1943, ii, 1448. *Warren, Minimal Criteria Required to Prove Causation of Traumatic or Occupational Neoplasms (Cancer), Ann. Surg., 1943, cxvii, —, 20 U. Chi. L. Rev. (April 1943) —. *Merritt and Solomon, Relation of Trauma to Syphilis of the Nervous System, Ann. Surg., 1943, cxvii, —, 23 B. U. L. Rev. (April 1943) —. *Cobb and Smith, Relation of Emotions to Injury and Disease, Medicine, (May 1943), —, —, — Harv. L. Rev. (Summer 1943). Google Scholar19 The House of Lords had debated the subject of insanity as a defense to murder (March 6 and 18, 1843; see Hansard's Debates, vol. 67, pp. 288, 714); this led to a resolution to call upon the Judges for an advisory opinion, an extremely rare practice in English law, but not without precedent. The judges were required to frame their answers to specific questions, without benefit of argument by counsel, without hearing medical testimony and with but a short time for deliberation. Surely no more profound precedent was ever laid down in a law court on a flimsier foundation. It is to the credit of the judges that they were skeptical about their assignment. Mr. Justice Maule (one of the judges) said, 10 Clark & Finnelly, 203, at 204: "I feel great difficulty in answering the questions put by your Lordships on this occasion:—First, because they do not appear to arise out of and are not put with reference to a particular case, or for a particular purpose, which might explain or limit the generality of their terms, so that full answers to them ought to be applicable to every possible state of facts, not inconsistent with those assumed in the questions: this difficulty is the greater, from the practical experience both of the bar and the Court being confined to questions arising out of the facts of particular cases:—Secondly, because I have heard no argument at your Lordships' bar or elsewhere, on the subject of these questions; the want of which I feel the more, the greater are the number and extent of questions which might be raised in argument:—and Thirdly, from a fear of which I cannot divest myself, that as these questions relate to matters of criminal law of great importance and frequent occurrence, the answers to them by the Judges may embarrass the administration of justice, when they are cited in criminal trials. . . . I shall proceed to give such answers as I can, after the very short time which I have had to consider the questions, and under the difficulties I have mentioned; fearing that my answers may be as little satisfactory to others as they are to myself." Google Scholar20 McNaghten's Case (House of Lords) 10 Clark and Fin. 200 (1843). Google Scholar21 Sampson The reader may suppose that the psychopathic personality had not then been recognized as a psychiatric entity, but medical men in England as early as 1829 had demarcated the condition from irresponsibility or insanity due to disease. , in his Criminal Jurisprudence in Relation to Mental Organization, London (1841) at p. 7 had said: "In the Richmond Lunatic Asylum, Dublin, Mr. GEORGE COMBE saw a patient, in 1829, who had been confined for ten years. He exhibited a total want of moral feeling and principle, yet possessed considerable intelligence, ingenuity, and plausibility. He had been a scourge to his family from childhood—had been turned out of the army as an incorrigible villain—had attempted the life of a soldier—had been repeatedly flogged—and had since attempted the life of his father. Respecting this man, Dr. CRAWFORD, Substitute Physician at the Asylum, made the following remarks. 'He never was different from what he now is; he has never evinced the slightest mental incoherence on any one point, nor any kind of hallucination. It is one of those cases where there is great difficulty in drawing the line between extreme moral depravity and insanity, and in deciding at what point an individual should cease to be considered as a responsible moral agent, and amenable to the laws. The governors and medical gentlemen of the Asylum have often had doubts whether they were justified in keeping him as a lunatic, thinking him a more fit subject for a bridewell. He appears, however, so totally callous with regard to every moral principle and feeling, so thoroughly unconscious of ever having done any thing wrong, so completely destitute of all sense of shame or remorse, when reproved for his vices or crimes, and has proved himself so utterly incorrigible throughout life, that it is almost certain that any jury before whom he might be brought, would satisfy their doubts by returning him insane, which in such a case is the most humane line to pursue. He was dismissed several times from the asylum, and sent there for the last time for attempting to poison his father; and it seems fit he should be kept there for life as a moral lunatic: but there has never been the least symptom of diseased action of the brain, which is the general concomitant of what is usually understood as insanity. This, I consider, might with propriety be made the foundation for a division of lunatics into two great classes,—those who were insane from original constitution, and never were otherwise; and those who have been insane at some period of life from diseased action of the brain, either permanent or intermittent.'" Benjamin Rush, father of American mental science, was one of the first to point out that disorders of the moral sentiments may be congenital and equivalent to partial imbecility, and he suggested that "moral imbecility" better described such cases than did the term "moral insanity." Rush, Medical Inquiries and Observations Upon the Diseases of the Mind, Phila. (1812). Google Scholar22 Glueck , Mental Disorders and the Criminal Law (1925). Google Scholar23 Hale , The History of the Pleas of the Crown (1736). Google Scholar24 In Roman law we find evidence that scientific issues were referred to expert referees for decision. See Dig. 25.4.1 pr. where the case was as follows: [Rutilius Severus declared that his wife, who had divorced him, was pregnant. This she denied. Rutilius wanted to claim the child when it was born. Apparently his wife did not want him to do so and for that reason denied that she was pregnant.] "Rutilius Severus seems to desire a new thing in applying for a custodian for his wife, who divorced herself from him and alleges that she is not pregnant; and so nobody will wonder if we also suggest a new counsel and remedy. Therefore if he persists in the same demand it is most convenient to choose the house of a most respectable woman in which Domitia shall come, and there three midwives of proven skill and honesty, who will be selected by you, shall inspect her. And if indeed all or two shall report that she appears to be pregnant, then the woman shall be persuaded that she accept the custody as if she herself had demanded it. But if she does not give birth the husband may know that it pertains to his odium and reputation that not undeservedly he may seem to have attempted this as some kind of an insult to the woman. But if all or most report her not to be gravid (pregnant) there will be no cause for custody." Rescript of the Emperors Marcus Aurelius and Lucius Verus to Valerius Priscianus, urban prefect (161-169 A.D.). In the time of Gordian (238-244 A.D.) we find this provision: "To soldiers once dismissed for cause, readmission on the ground of recovery of better health is not customary since they are not carelessly dismissed but only those who are found to have acquired a defect according to the report of physicians and also on the diligent investigation of a competent judge." C. Just. 12.36.6. It was further provided that in case doubts arose as to the authenticity of deeds, it should be necessary to compare the handwriting of the subscribers. Nov. 73.7 pr. (A.D. 538). References to use of experts in the Roman legal texts can be found in Wetzell, System des Ordentlichen Civilprocesses (1878) 528, n. 11. In Canon Law it has long been customary for the judge in matrimonial cases involving alleged impotency or non-consummation of the marriage, to establish the facts by ordering bodily inspection of one or both parties by court-appointed experts. See Gasparri, Codex Juris Canonici (1918 ed.). Canon 1792: "The service of experts must be employed whenever the law or the judge demands their interrogation and opinion for the purpose of establishing some fact or determining the true nature of the thing." [This canon apparently originated in the Decretals of Pope Gregory IX (1145-1241). The Decretals were drawn up between 1230-1234 A.D.] The early common law provided a writ for a jury of matrons de ventre inspiciendo in proper matrimonial causes (Bracton, De Leg. lib. ii fol. 69). Indeed, throughout the fourteenth century in London, courts used special juries of experts drawn from a particular trade to hear causes involving trade disputes. See, Riley, Memorials of London and London Life in the 13th, 14th and 15th Centuries (1868). In 1345, an English court, in an appeal of mayhem, called London surgeons to help them determine whether a wound was fresh. Anonymous, Lib. Ass. 28 pl. 5 (28 Edw. III). These facts are the more significant when we realize that the jurors originally heard no witnesses and were themselves free to go about investigating the facts both before and during trial. It was not until the middle of the 15th century that it became customary to summons witnesses. It was not until after 1600 that the direct and influential use of experts began to succumb to the present evidentiary restrictions, with the result that scientific proof became merely advisory to the lay jury, and reduced to the status of open competition with lay testimony. The foregoing English cases, and others, are mentioned in Hand, Historical and Practical Considerations Regarding Expert Testimony, (1901) 15 Harv. L. Rev. 40. Any trend forward, anachronistically, must be a trend backward, to the more direct mechanisms which the law had prior to 1600. Google Scholar25 Proal , Passion and Criminality, published by Charles Carrington, 13 Faubourg, Montmartre, Paris. Google Scholar26 Singh, History of the Defense of Drunkenness in English Criminal Law, (1933) 49 L. Qu. Rev. 528. For American decisions see E. V. R., Intoxication in Mitigation of Homicide, (Sept. 1941) 2 Qu. J. Alcohol 396. Google Scholar27 Regina v. Davis (Northeastern Circuit, Newcastle-upon-Tyne), 14 Cox C. C. 563 (1881). Trial before Justice Stephen, the same Sir James Stephen famous for his "History of the Criminal Law" (1883). Google Scholar28 Frequently these cases involve such "automatism" as to deprive the actor of knowledge of "the nature and quality of his act," or the mental state is such that experts do not hesitate to say that the accused was unable "to distinguish right from wrong." Opinions of the higher English courts have not yet covered irresistible impulse, as a third category, in a satisfactory or definitive way. Yet we cannot overlook the fact that in 1924 the House of Lords defeated Lord Darling's "Criminal Responsibility (Trials) Bill" intended to establish irresistible impulse due to mental disease as an additional legal defense. Google Scholar29 Report from the Select Committee on Capital Punishment, House of Commons (1929-30) 36. Printed by H. M. Stationery Office (1931). Google Scholar30 Before 1800 in England, an acquittal on the ground of insanity would enable the defendant to go free without any protection for society. The "Criminal Lunatics Act" of 1800, in England, provided that a jury, in acquitting a defendant accused of felony, must make it clear whether their action were taken because they found the accused person was insane at the time he committed the act. If so, the defendant was committed to an asylum and detained "during His Majesty's pleasure." The special form of verdict, "guilty, but insane" was specified by the "Trial of Lunatics Act" (1883) s. 2. Google Scholar31 7 Edw. 7, c. 23. Google Scholar32 Exercised in Rex v. Holt (Crim. App.), 15 Cr. App. R. 10 (1920). Google Scholar33 As in Rex v. William Hopper (Crim. App), 11 Cr. App. R. 136 (1915). Defense: accident; jury verdict: murder; substituted verdict entered on appeal: manslaughter, with sentence reduced to four years' penal servitude. In Rex v. Beard (Crim. App.), 14 Cr. App. R. 110 (1919), D while intoxicated raped a girl and apparently strangled her to death by accident. Jury verdict of murder, reduced on appeal to manslaughter because of error in trial court's charge. Google Scholar34 As in Rex v. Lumb (Crim. App.), 7 Cr. App. R. 263 (1912); Rex v. Boss (Crim. App.), 16 Cr. App. R. 71 (1921). Google Scholar35 47 & 48 Vict., c. 64. Google Scholar36 In master-servant cases, Workmen's Compensation Laws have substituted "injury from accident arising in the course of employment" as the basis of liability in lieu of the employer's negligence. In the field of Domestic Relations, many states now permit divorce where the two spouses live apart for a statutory period, without regard to any fault of either. Still other jurisdictions have provided by statute that continuing insanity of one spouse arising after the marriage ceremony is ground for divorce. As insurance against the perils of life becomes a social function, fault as a risk-fixing device will be much eroded, if not destroyed. If, as and when that phase is reached, we may still expect as a matter of social policy, that one who wilfully injures himself will be debarred from recovering compensation. Google Scholar37 Capital punishment in such cases is inappropriate, but as the psychopathic personality is not technically insane under McNaghten's rules, executive clemency is necessary to change the death penalty to life imprisonment. Governor Ritchie of Maryland saved Herman W. Duker, a psychopathic murderer, from capital punishment by such last-minute intervention. Ulman, A Judge Takes the Stand (1936), Appendix, p. 273. A more recent case, in Massachusetts, was that of Woodward, a psychopathic juvenile, who killed a young girl by slow torture, and escaped the supreme penalty, after conviction of murder, only by last minute commutation of his sentence to life imprisonment. Google Scholar38 Thom See , Irresponsibility of Juvenile Delinquents, Am. Jr. Psychiat., 1942, xcix, 330. CrossrefGoogle Scholar39 For prolonged studies along this line, from which the authors derive a formula of "predictive factors" intended to guide juvenile courts, see Sheldon and Eleanor Glueck, Juvenile Delinquents Grown Up (1940). (Based on statistical studies of 10 year records of 1,000 cases.) Google Scholar40 Fink See , Causes of Crime. Biological Theories in the United States, 1800-1915 (1938). Google Scholar41 Dr. Francis Joseph Gall (1758-1828) has been described as the founder of criminal anthropology. His discoveries in the anatomy of the brain won the highest praise of both Bischoff and Cuvier, but it was his bad fortune to be remembered principally for his rapidly discredited theories of phrenology. Cesare Lombroso had attained to a position of eminence by the end of the last century through his anthropological investigations of criminals. He described various anomalies in the brains of criminals, but he failed to control his studies, and did not realize that brains of normal, law-abiding citizens show similar anomalies. Virchow predicted that his work would one day fall into low esteem as compared with the broad general contributions of Gall. Dr. C. B. Griffiths, Charles Goring, and other English prison medical officers systematically measured 3,000 subjects under direction of Professor Karl Pearson, using certain controls. In their published results in 1913 they said: ". . . Our inevitable conclusion must be that there is no such thing as a physical criminal type." Interest in the anthropological approach more broadly conceived has been freshly stimulated by the careful researches of Dr. Earnest A. Hooton, Professor of Anthropology at Harvard. Phillipe Pinel (1745-1826) attacked problems of criminality from the vantage point of an alienist, as did Esquirol (1722-1840) the French psychiatrist. The latter produced in 1838 his well-known treatise, "On Mental Diseases in Their Medical, Hygienic, and Legal Relations." Maudsley and Mercier in England continued to study the relation of crime to insanity, and in America we have had several hundred studies devoted to the relation of mental defect to criminality. Some investigators have studied the I.Q.'s of prison populations, others have combined such psychometric methods with detailed medical examination and psychiatric diagnosis. Google Scholar42 For an excellent study of this type, see Branham, The Classification and Treatment of the Defective Delinquent, (1926) 17 J. Crim. L. & Crim. 183. For an important earlier study, see Glueck, Bernard, A Study of 608 Admissions to Sing Sing Prison, (1918) 2 Mental Hygiene 85. Rockefeller Foundation has carried out important surveys of prisoners in various institutions of the several states. Google Scholar43 A model study in this regard is the critical analysis by Dr. W. Norwood East of the main and subsidiary causes of attempted suicide, based on his personal examination and investigation of one thousand consecutive cases admitted to Brixton prison, in England. Dr. East found the major causes and motivations of attempted suicide to be as follows: 1. Alcoholic impulse with amnesia (141); 2. Alcoholic impulse—memory retained (171); 3. Post-alcoholic depression (31); 4. Out of work (112); 5. Destitution (64); 6. Domestic trouble (120); 7. Ulterior purpose (61); 8. Fear of imprisonment or on arrest (41); 9. Business worries (27); 10. Depression from various causes (20); 11. Other causes (shame, mistake under alcohol) (7); 12. Weak-mindedness (46); 13. Neurasthenia (8); 14. Epilepsy (10); 15. Morbid mental states (18); 16. Insanity (123). East, Medical Aspects of Crime (1936), Ch. V, p. 141. Google Scholar44 The table is reproduced from Nolan, Some Characteristics of the Criminal Insane, (May 1920) 5 The State Hospital Quarterly 362. It covers 646 patients, a rather small series, and the table is reprinted to show efforts at correlation of mental defect with type of crime, not as proof of exact relationships. Google Scholar45 Stearns Dr. A. Warren Stearns, during his tenure as psychiatrist of Massachusetts State Prison, made an intensive study of 100 prisoners, 58 of whom had been convicted of manslaughter, 39 of second degree murder and 3 of first degree murder. He found that 20 per cent were drunk when the crime was committed, and that "twenty of the series showed well marked departure from normal mental condition, nine being definitely insane, three feeble-minded, eight presenting personality disorders of so gross a character as to limit their responsibility." , Homicide in Massachusetts, Am. Jr. Psychiat., 1925, iv, 725. See also, *Stearns, Medical and Social Factors in Crime, ANN. INT. MED., 1943, xviii, 599. CrossrefGoogle Scholar46 Elwell found that very few homicides were committed in the asylums of Ohio, or of other states, and drew the conclusion that not one out of a thousand of those who commit murder are actually insane, but become conveniently afflicted with mental disorder for purposes of trial. Elwell, Epilepsy as a Defense for Crime, (1890) 8 Medico-Legal J. 55. It is interesting to note that Dr. Walter Channing, responding to the author's questionnaire, took sharp issue with this opinion and cited experience of the New York courts in support of his contrary belief that an appreciable percentage of homicides are committed by insane persons. Id. at 61. Google Scholar47 Berger H: Ueber das Elektroenkephalogramm das Menschen, Arch. f. Psychiat., 1929, lxxxvii, 527. CrossrefGoogle Scholar48 English cases: Rex v. James Hadfield, 27 Howell's State Trials 1290 (1800). (Psychotic deterioration of epilepsy originally due to war head injury; not guilty by reason of insanity); Rex v. Thomas Bowler, Annual Register, 309 (1812) (convicted); Rex v. John Boss, 16 Cr. App. R. 71 (1921) (conviction affirmed); Rex v. Fryer, 24 Cox C. C. 403 (1915) (guilty but insane); Rex v. Henry Perry, 14 Cr. App. R. 48 (1919) (conviction affirmed; the epileptic state must have been operative at the time of the act in such way as to destroy mental responsibility); Berkeley-Hill and Owen, Post-Epileptic Automatism as a Defence in a Case of Murder, Jr. Royal Army Med. Corps, 1930, lv, 54 (acquitted). American cases: Commonwealth v. Snyder, 224 Pa. 526, 73 Atl. 910 (1909) (conviction affirmed; mere fact that accused was an epileptic creates no presumption of insanity or mental irresponsibility); People v. Barberi, 47 N.Y.S. 168, 12 N.Y.Cr.R. 89, 423 (1896) (trial court charge: epilepsy must have been operative at time of act in such way as to destroy mental responsibility of defendant at time he acted); People v. Magnus, 155 N.Y.S. 1013, 92 Misc. Rep. 80, 34 N.Y.Cr.R. 1 (1915) (conviction reversed because undisputed medical testimony showed act was committed during epileptic seizure); Oborn v. State, 143 Wis. 249, 126 N.W. 737 (1910), 31 L.R.A.(N.S.) 966 (conviction affirmed: mere proof of epilepsy is not proof of insanity). See, also: Olden v. State, 176 Ala. 6, 58 So. 307 (1912); People v. Tucker, 11 Cal.(2d) 271, 78 P.(2d) 1136 (1938); Taylor v. United States, 7 App. (D.C.) 27 (1895); Quattlebaum