Text-book of forensic medicine and toxicology

by R. J. M. Buchanan

Justice Darling held this statement was admissible as a dying declaration.

In the case of Rex v. Smith, 65 J.P. 426 (Bruce, J., Central Criminal Court). A magistrate and a doctor visited a dying woman for the purpose of taking her statement. In reply to a question put to her by one of them, she said, “I am aware that I am seriously ill.” The magistrate asked her questions and the doctor wrote down the answers. At the trial the statement was objected to as inadmissible as a dying declaration on two grounds: Firstly, that the statement consists only of answers to questions put to her by the magistrate, and so comes within the ruling of Cave, J., in Reg. v. Mitchell, 17 Cox C.C. 503, that “a declaration should be taken down in the exact words which the person who makes it uses, in order that it may be possible from those words to arrive precisely at what the person meant. When a statement is not the ipsissima verba of the person making it, but is composed of a mixture of questions and answers, there are several objections open to its reception in evidence.... In the first place, the questions may be leading questions, and in the condition of a person making a dying declaration there is always very great danger of leading questions being answered without their force and effect being fully comprehended.”

Secondly, the prosecution had not shown that at the time the woman made the statement she was in expectation of immediate death.

The judge held (1) That the prosecution had not proved that in her own opinion the woman was beyond all hope of recovery, and that therefore the statement was inadmissible; (2) That such a statement—the magistrate asking her questions and the doctor taking down only her answers in writing—was not admissible as a dying declaration.

In the case of Rex v. Holloway, 65 J.P. 712 (Wills, J., Central Criminal Court). The prisoner threw a burning lamp at his stepson and set fire to his stepdaughter, who succumbed to the burns she received. A deposition of the deceased girl was taken down by a magistrate. At the time it was taken it was intended that it should be in accordance with the provisions of the 1867 Act. The accused was present and had full opportunity of cross-examining the witness. The deposition was read over to the girl, and she assented to it, but could not sign it because of the injuries to her hands. The magistrate who took the deposition signed it. It was held that the deposition had been taken in accordance with the provisions of the Indictable Offences Act, 1848, sec. 17, and was admissible though it had not been signed by the girl.

The validity of a dying declaration has been called in question when made by a person who has suffered a severe concussion of the brain, and then recovered his sensibility. It is well known that under such circumstances the recollection of what took place before or after the injury is in many cases very imperfect, and the injured party may thus draw unintentionally upon his imagination for his facts. In Scotland, “the written deposition of a person who is dead is admissible, whether the person were the party injured or not, if he would have been a competent witness. It is not necessary that the deceased believe himself to be dying when he emits the deposition, for his consciousness of approaching death may be inferred from the nature of the wound, or the state of illness or other circumstances of the case. Such depositions are generally taken by a magistrate, but a declaration deliberately made, though without an oath, and taken down ‘by a creditable person,’ is admissible” (Macdonald, Scottish Criminal Law, p. 512).

2. ORAL OR PAROL

A medical man may be called as a common witness, or as an expert witness. In the first case, he has only to state, as any other witness might do, the facts that have fallen under his observation; in the second, he has to interpret the facts he has himself observed, or to give his opinion on facts noticed by others. In stating his opinion, a medical witness must be prepared to back up his opinion by such reasons as may be satisfactory to the understanding of his hearers, “and this is the principal qualification of a medical witness, that he make himself intelligible to ordinary comprehensions.” No man is bound to give any testimony by which he may render himself liable to any criminal prosecution. (See the ruling of Bailie, J., in the case of Mr. George Patmore, tried for the murder of John Scott in a duel.)

At the trial, the witness is first examined by the party who calls him: this is the examination-in-chief. He is then cross-examined by the opposite party; and, lastly, re-examined by the former party, when he is offered the privilege of explaining any discrepancies between his examination-in-chief and cross-examination, but he must not introduce any new matter, for by so doing he renders himself liable to be cross-examined on it.

The Use of Notes.—All notes should contain a plain statement of the facts, and, to render them admissible as evidence, they must be taken at the time, and duly attested. From the notes prepared as before mentioned a witness may refresh his memory, but they are not accepted in its place. A witness may not read his notes as evidence, nor may he refresh his memory by documents not his own and not produced, but he may refresh his memory by looking at a document received from the accused at the time of the offence, and kept by him (Geo. Wilson, jun., Aberdeen, May 1, 1861; 4 Irv. 42).