Page:The Green Bag (1889–1914), Volume 05.pdf/32

 Practical Tests in Evidence. PRACTICAL TESTS IN EVIDENCE. III.

"D ACE. To determine a question of race, -*-^- however, the jury may look at the person. Jones v. Jones, 45 Md. 151; Garvin v. State, 52 Miss. 207; Warlick v. White, 76 N. C. 175; s. C. 41 Am. Rep. 453. Age. But the jury may not look at an infant for the purpose of determining how oldheis. Ihingeri'. State, 53 Ind. 251. This was an indictment for selling intoxicating liquor to an infant; and the defence was that the seller supposed him to be of age. The infant was well-grown, eighteen years old, and weighed one hundred and seventy-five pounds. The court said : " Doubtless evi dence would have been competent to show the appearance of the witness as to age. But we know of no principle of law that would permit the jury to pass upon the age of the witness by his appearance to them." The contrary was held in Com. v. Evans, 98 Mass. 6. Human Remains. In State v. Weiners, 66 Mo. 13, a murder case, the bones of the deceased were exhibited in court, to explain the relative attitude and position of the deceased and the defendant at the time in question. In Grangers' Life Ins. Co. v. Brown, 57 Miss. 308; s. C. 34 Am. Rep. 446, the insurers asked for an exhumation of the body of the insured for the purpose of showing that he had suffered a fracture of the skull; but this was refused on account of the delay of eighteen months. The court intimated that it might be done in a proper case, but said " it would be a proceeding re pugnant to the best feelings of our nature." The same view was taken in Knowles v. Crampton, 55 Conn. 336, an action for a broken rib, where counsel offered " to show the exact location of the ribs in the human

system by means of a section of a human body." The refusal was held discretionary. But on a recent trial in the Superior Court, at Boston, a skeleton was brought into court and used by the surgical experts to point the plaintiff's bodily injuries in question. The reporter says : " This uncanny object became the butt of irreverent remarks by the lawyers." In McNaier v. Ry. Co. 51 Hun, 644, the court allowed the exhibition of a skull as a diagram, as well as surgical instru ments, to explain the operation necessary to relieve the injury, observing that they could not " inflame the passions of the jury." In Com. v. Brown, 121 Mass. 69. an indictment for procuring death by abortion, injured parts of the woman's body, preserved in spirits, were allowed to be exhibited to point expert testimony. In the celebrated case of Com. v. Webster, for the murder of Dr. Parkman, the artificial teeth of the deceased, identified by the dentist who made them, by fitting them to the plaster mould, were the damnatory evidence. On the celebrated trial of Billings for the murder of his wife, in Saratoga County, New York, in 1880, skulls were produced in court to show the result of experiments in firing at them. CONDUCT OF ARRESTED PERSON. Evidence of the flight of one accused of crime is always competent. In People v. Greenfield, 85 N. Y. 75, evidence was held admissible that the prisoner, accused of murdering his wife, shed no tears on account of her death. Mr. S. C. Huntington argued against this evidence as follows: — '• Do the profoundest sorrow, the strongest and most poignant grief and mental agony, always, with each person, under all circumstances, maniifest themselves by tears? If the question can, in accordance with the laws of the human intellect, its