to read from medical works of established credit in the profession "as part of his argument." But in one only of the cases, so far as we have been able to find, was it decided that this practice was proper, such decision being necessary to the conclusion reached by the Court. In Yoe v. People, 49 Ill. 412, it was said, that where the attorney for The People, against the objection of the prisoner, read copious extracts from medical works, the Court (without special request on the part of the prisoner) should have instructed the jury that such books are not evidence, but theories simply of medical men. Even if we should accept this as law, the judgment in the present case must be reversed, since the Court below did not so instruct the jury. In Yoe v. The People, the reading of such books by the attorney for the People (in the absence of the instruction mentioned) was held to be error, and the judgment was reversed. In our view the Court came to the conclusion proper that error had occurred. But books treating of insanity contain more than abstract speculations or general expositions of the science of medicine as applicable to mental diseases. They contain reported cases and opinions as to the effect to be given to asserted facts in determining the presence or absence of insanity; statements of the views and opinions of their writers, which partake of the nature of facts in the same degree as do the opinions of expert witnesses, who are subject to cross-examination. Harvey v. The State, 40 Ind. 516, was a case in which it was held not to be error for the trial Court to permit counsel to read from a book purporting to be a medical work, the Court, instructing the jury "that the extract was to be regarded not in anywise as evidence," etc. The objections to the practice so clearly pointed out by Chief Justice Shaw and others do not seem to have occurred to the Judges; and the Court, in Harvey v. The State, supposed that any evil which might arise from it would be overcome by the direction to the jury to disregard the extract as evidence. In the case at bar, as we have seen, the Court below did not so instruct the jury. It has been held here that ordinarily a judgment will not be reversed because of the omission of the trial Court to give a certain instruction unless the instruction was requested. But the rule certainly would not be applicable to a case in which counsel should be permitted to state facts not in evidence to a jury, against the objection of the opposite party. (See People v. Taylor, 59 Cal. 640.) Here the District Attorney was permitted to read the opinions of one whose opinions (even if we assume the book to be of recognized authority) were, like the opinions of experts upon the witness stand, in the nature of facts. We do not think Harvey v. The State was well decided; but if it can be considered law, it will not justify an affirmance of the judgment in the case now before us. In Legg v. Drake, 1 Ohio St. 286, the bill of exceptions did not show that the passage from Youatt's work on "Veterinary Surgery," ," which counsel was prevented by the Court from reading to the jury, had any relevancy to the cause on trial. The action of the Court below in refusing to permit it to be read, was sustained for this reason; as if the Supreme Court had said: "Assuming that passages from such works may properly be read, they should at least have some bearing on the issue being tried." What is said in the opinion of the propriety of the practice, is mere dictum (p. 289). The bill of exceptions before us shows, that the sections read by the District Attorney to the jury, from Browne's work, were relevant. He read "various sections thereof, commenting upon and treating of the subject of insanity, and sustaining the prosecution's theory of the case." Moreover, in Legg v. Drake, the Court only said: "Although unlimited license in range and extent is not allowed to counsel, in their addresses to the Court and jury, yet no pertinent and legitimate process of argumentation, within the appropriate time allowed, should be restricted or prohibited. And it is not to be denied, that a pertinent quotation or extract from a work on science or art, as well as from a classical, historical, or other publication, may, by way of argument, or illustration, be not only admissible, but sometimes highly proper. * It would be an abuse of this privilege, however, to make it the pretense of getting improper matter before the jury as evidence in the cause." A pertinent quotation, used by way of illustration, is a very different thing from a report of facts connected with a particular case, and the opinion of an author thereon that 99 they did not indicate or establish insanity; a different thing from the reading the opinion of a medical writer as to the effect of particular facts upon the determination of the question of insanity. Such must be presumed to have been the nature of the matters read by the District Attorney in the present case, since they sustained the prosecution's theory of the case this case. The ruling in Wade v. De Witt (20 Texas, 401) was based upon a similar bill of exceptions to that before the Ohio Court, in Legg v. Drake, and was to the same effect. In City of Ripon v. Bettel (30 Wis. 619), the bill of exceptions did not show for what purpose a certain treatise on surgery had been admitted. Non constat, said the Court, but a medical expert had stated that the treatise sustained his conclusion, and the book was admitted as evidence in the nature of impeaching testimony, to show that the witness was mistaken. Mr. Bishop, in his work on Criminal Procedure, Section 1190, says: "An expert may testify to what he has learned, not merely from personal experience and observation, but also from books, and may give an opinion derived from reading and study alone. But it does not follow that the books themselves are evidence. We have seen that the law of the case should be given to the jury by the Judge and not through law books; because the books state the law abstractly, while the jury are to be instructed upon the rules governing the particular facts. For the like reason it. is the better doctrine that no books of science, or other book of the sort, however high or well attested its authority, should be submitted to the jury. Yet equally in the Judge's charge to the jury, and in the testimony of experts, and even in the arguments of counsel, passages from standard books, explained and applied to the case in controversy, are, under limitations varying in some degree in our different courts, permitted to be read." We need not here pause to inquire whether, in view of the clause in our Constitution which prohibits any charge as to facts, a California Judge would be permitted to determine what books are "standard authorities" in the medical profession; to read from such, and to explain and apply their contents. With respect to the statement that passages from standard books may be read by witnesses, and by them explained and applied, "under limitations varying in some degree," the language employed by the very able writer indicates how difficult he found it to derive any definite rule from the instances where such practice had apparently been permitted. The cases cited by Mr. Bishop are The State v. Sartor, 2 Strobh. 60, and Merkle v. The State, 37 Ala. 139. In the first it was simply held that, although an indictment for obstructing a highway was at common law, it was permissible for the State Solicitor to refer to the public statutes, not to give character to the offense as against the statute, but to show what were public ways. 37 Alabama, 139, is based entirely on Stoudenmeier v. Williamson, 29 Ala. 566, in which the question considered was not whether an expert could read from medical works, but whether such books could themselves be introduced as evidence. In the opinion in the case last named the only English cases cited are Collier v. Simpson, supra, and Attorney General v. The Glass Plate Company, 1 Anstr. 39. -- Of these the first is directly adverse to the proposition that a witness can be allowed to read from scientific treatises; the second-which holds that parol evidence is not admissible to explain the meaning of a word used in an Act of Parliament is admitted to have no bearing upon the question under consideration. It is further admitted by the learned Alabama Judge that Greenleaf (Vol. 1, Sec. 440, note 5) is an authority against the admissibility of the evidence. Neither the Massachusetts nor Rhode Island cases are mentioned. The American decisions by him referred to are Bowman v. Woods, already commented on; Luning v. The State of Wisconsin, 1 Chand. 178, spoken of as "a very loose opinion," and Green v. Cornwell, 1 City Hall Recorder, 14. In the last, which was a trial by jury in the Mayor's Court of New York city, a table from Blunt's Coast Pilot and Bowditch's Navigator was received to prove the condition of the tide at a certain time and place, the presiding Judge saying, "the testimony is of equal validity with the Almanac." But, clearly, Stoudenmeier v. Williamson is not authority to the point that a witness may fortify his opinion as expert by reading from books, since that question was not decided in that case. There an extract from a medical book was itself admitted in evidence, and, as Mr. Bishop says, it is now well settled that the books themselves, or extracts from them, are not admissible as evidence. If the last clause of the above citation from Bishop is to be construed as implying that counsel can read to a jury extracts from medical works, and explain them, the great weight of authority is decidedly against so dangerous a license. In Merkle v. The State (supra) the book read from by the prosecuting attorney was first proved by the testimony of a practicing physician to be a book "recognized by the medical profession as good authority on all subjects therein treated of." The prosecuting attorney did not read from a book, not introduced in evidence nor proved to be authoritative, as was done in the case now before this Court. In Merkle v. The State, the Alameda Court, solely on authority of Stoudenmeier v. Williamson, held that it was proper to receive such a book in evidence. This ruling is in conflict with the established law on the subject, as stated by Mr. Bishop himself. As to the other cases referred to in the note to the clause quoted from Bishop, some have been herein before mentioned and commented upon, others have no relevancy to the immediate question. McMath v. The State, 55 Ga. 303, only holds, that, under the supervision and subject to the correction of the Court, counsel may read from books treating of the law of this country. Our conclusion is that the Court below erred in permitting the District Attorney, in his closing argument to the jury, in the absence of any evidence that the work was of recognized authority in the medical profession, and against the objection of counsel for the defendant, to read from Browne's Medical Jurisprudence of Insanity "various sections treating of the subject of insanity, and sustaining the prosecution's theory of the case." Judgment and order denying new trial reversed, and cause remanded for a new trial. Ross, J., concurred. MCKEE, J., concurring: Books of science or art are prima facie evidence of facts of general notoriety and interest. But the Court below erred in CAL REPS. LX-38 |