which the district attorney on the argument had been permitted to read to the jury certain extracts from "Brown on Insanity." No evidence had been adduced that the book was a standard authority, and on this ground the decision of the Supreme Court was placed. But from the language used by the judge who delivered the opinion, it would appear that had this evidence been forthcoming, it would still have been error in the court below to have allowed the book to be read to the jury. "The expert" said the Supreme Court "is called to assist the jury in reaching a just conclusion; his testimony is necessarily subject to the supervision of the jury. They must determine not only whether the hypothetical case on which his opinion is based is the case before them as established by credible testimony, but must consider the reasons he has given for his opinions, and by his whole testimony test his credibility and the correctness of his judgment. Inasmuch as the circumstances on which the jury are to determine the weight to be given the opinion of an expert are more numerous and complicated than those by reference to which they are to decide on the consideration to be afforded to the statements of a witness with respect to facts and influences involved, if any, which are within the reach of those possessed of no special or scientific acquirements, it follows that it is peculiarly important that a defendant charged with crime should be confronted by the expert witnesses against him, and that they should be cross-examined in his presence. But where the opinions of a writer as to the presence or absence of insanity upon facts more or less analogous to those claimed by the prosecution or defence to be established in the case, are permitted to go to the jury, the writer is not sworn or cross-examined at all. Such evidence is equally objectionable whether introduced by the people or by the defendant. If held admissible the question of insan

ity may be tried not by the testimony, but upon excerpts from works presenting partial views of variant and perhaps contradictory theories. In the case before us, too, there was no evidence that the work from which the district attorney read various sections, was a standard authority in the medical profession, or that the author was an expert."

Ordway v. Hughes, 50 N. H. 159 (1870), a New Hampshire case, indicates that such a practice is not permitted at all in this state. This was an action against a surgeon for malpractice, by which in setting a fractured bone, the lower portion of the fractured bone was pushed up and lapped by the upper portion, thereby causing a shortening of the limb. In opening the case to the jury the plaintiff's counsel offered to exhibit to them an engraving in a medical book, as a chalk, to exhibit his meaning. This the court refused to allow. On appeal the ruling was sustained, the Supreme Court holding that although a chalk or engraving might properly be exhibited to the jury as an illustration, yet it was not proper to exhibit it as taken from a medical book, for this would give it an undue importance in the minds of the jury. Said SARGENT, J., "The engraving that was offered as a chalk taken alone was not objectionable. The witness may use, to illustrate his meaning, and the counsel to illustrate his case, any chalk, whether engraved or more roughly sketched, whether made with a pen, a pencil, a paint brush, a coal or a piece of chalk. If the diagram alone were offered, and offered simply as a chalk, we see no objection to it. But when it was offered, as the case shows this was, as an engraving in a medical book,' that makes it at once improper as evidence, because that gives it an undue importance with the jury. The jury should not know that it was in a medical book, or a law book, or what the book was that contained it. In fact if it was to go to the jury as a chalk, it should

not be in any book, for that simple fact might lead the jury to attach an undue importance to it. If the jury are to be told that the engraving shown them is taken from a medical book or was got up by some distinguished doctor or man of science, it might give it a weight, an authority with the jury, which no mere chalk was designed to have or would have.

This is a matter which must be left to the discretion of the court. An engraving may be as good a chalk as anything, but it should not be attached to or contained in any book, nor should the jury be told from what book it was taken, or that it ever was in any book, and nothing should be said about it only that it is to be used as a sketch or chalk to illustrate the case. Where it is offered as a part of a medical book or as the work of some distinguished man, then the presiding judge should exclude it, is he did in this case very properly. But when separated from everything else and offered by the counsel or a witness simply as a chalk, with nothing said as to whence it came from or who made it, then we see no objection to it on the ground that it was engraved or painted, unless there was something about it that the court could see was calculated to mislead the jury. We think this matter must and ought to be left to the presiding justice to decide, as one of the matters in his discretion. In this case we see no reason why the discretion was not properly exercised." In Illinois the question has hardly been squarely decided. Yoe v. The People, 49 Ill. 411, was a murder case which was tried in 1868. The prosecuting attorney was permitted against the objections of the prisoner to read to the jury copious extracts from medical works, which had not been introduced in evidence, and which had not been proved to be authorities, and to state to the jury that what he had read was authority upon the subject of poisoning by arsenic. The Supreme Court held

this to be improper, but added: “If the state's attorney in such a case, or in any case, read from medical books in his argument to the jury, the court should instruct them that such books are not evidence but theories simply of medical men." In Gale v. Rector, 5 Bradw. 481 (1879), decided in one of the appellate courts in 1879, the question was whether a surgeon had treated the defendant's wife in a proper manner. Upon this question, the defendant's counsel was permitted to read an extract to the jury from Gross on Surgery. This was held to be erroneous.

A leading English case on this subject deserves in this place a review of some length. There it was held that counsel in addressing the jury are allowed to read from or refer to printed books for the purpose of showing the opinions of authors or others on particular subjects. But they cannot do so for the purpose of proving facts: Darby v. Ousely, 1 H. & N. 12 (1856). The action was for a libel contained in an article entitled "A Papal Rebel in Her Majesty's Service." In his address to the jury the defendant's counsel proposed, in order to show the doctrine of the church of Rome with respect to heretics, to read certain canons and decrees of that church, viz.: those of the Councils of Lateran, Arles, Sens and Trent; also a paragraph from a book published by a Roman Catholic priest in 1822, entitled, "Development of the Church of Rome in Ireland;" also to read from histories the excommunication by the Popes of various heretical sovereigns; also to read the bull "In Coena Domini," read every Maundy Thursday at Rome by the Pope; also the oath of a Roman Catholic Bishop, from the Pontificale Romanum, and some of the notes to the Testament published by the Catholic College of Rheims in 1852. The court refused to allow him to read any of these documents, being of opinion that if they were of authority in Catholic

countries, they ought to be proved as foreign law. In moving for a new trial, the counsel said: These documents were not intended to be referred to as evidence, but only as illustrating the doctrines by which the plaintiff acknowledged himself bound. The works of Hume, Paley, Bolingbroke, Bacon, &c., are frequently cited as illustrating certain themes. On the trial of O'Connell in Ireland, in 1843, his counsel read to the jury extracts from newspapers published in 1831, containing accounts of political meetings at Birmingham, &c., and also speeches in Parliament." But POLLOCK, C. B., replied: "In Rex v. Hone, which was tried before Lord ELLENBOROUGH, the defendant cited numerous authors for the purpose of showing that parodies, instead of being a contempt of the thing parodied, were a tribute to its merit. He showed that Luther had parodied the Lord's Prayer, and Addison the Creed. Standard authors may be referred to for such a purpose, or as showing the opinions of eminent men on particular subjects, but not to prove facts." On further consideration, all the judges thought the ruling correct. "No doubt under certain circumstances," said the Chief Baron for the whole court, 66 as in Hone's Case, counsel and defendants have been permitted to refer very largely to printed works. If a question arose as to composition for the purpose of showing that a particular expression was not in reproach, but landatory; or that certain words were not used in an ironical sense; works in prose and verse may be referred to. On the trial of Mr. O'Connell very large quotations were made from books and speeches; so also, in an information against John and Leigh Hunt, for a seditious libel, Lord BROUGHAM quoted several books not in evidence; but when on a subsequent occasion he proposed to read books for the purpose of proving facts, Lord ELLENBOROUGH interrupted him, saying,

that he might refer to particular writers upon general subjects, but that he could not bring forward their statements to prove facts. It could never be supposed that books might be referred to for the purpose of proving the best mode of conducting agriculture. If a landlord complained of a farmer for not properly cultivating his land, he could not refer to books in order to show in what way the land ought to be cultivated, for that must be proved before the jury, who are sworn to try secundum allegata et probata. So in an action on a warranty of a horse, it would not be allowable to refer to works of a veterinary surgeon, in order to show what is unsoundness. In this case, the defendant's counsel proposed to read certain specific canons, not as matters of speculative opinion, but 28 Canons of the Church of Rome, promuigated by authority and sanctioned by the Pope in council. These are matters of fact, and if of any authority, ought to have been proved. The learned counsel was opening a case for the defendant which consisted merely of observations on facts already proved; for he had announced his intention not to call witnesses, and, therefore, could not afterwards be allowed to do so. Then he proposed to read from various histories, the excommunication by the Popes of heretical sovereigns, and also to read the bull In Coena Domini.' The learned judge very properly ruled that he might refer generally to the fact that Popes have excommunicated sovereigns, but that he had no right to read the terms of a specific bull, as that was a matter to be proved. It is the same with respect to the Pontificale Romanum, and the notes to the Rheims Testament. In short, the defendant's counsel wanted to prove certain facts; he opened them as facts, and supposed that because he could find them in certain documents and books, he was relieved from the necessity of calling witnesses to prove them, thereby avoiding a reply."