Practical Tests in Evidence. ¡^ад, , court should be, as a bygone judge described .., Machine put in motion by evidence ' of wit*S> not by the exhibition of experiments."
In Stockwell v. Railroad Co., 43 Iowa, 470, the court declined to set aside the verdict in an action for injury by fire communicated by a locomotive, because on a view of the prem ises by the jury the railroad employes ran a locomotive over the portion of the track in question, in order to show that it could be done without using steam and so without emitting sparks. This was put on the ground that the experiment did no harm; but the court said : — "Why not employ the experiment to reach the truth, the end and aim of all trials at law? ... Sup pose experts should diner as to the effect of the union of two chemical bodies; what objection could exist to an experiment before the jury to determine the true result? Suppose a question arose in a case as to the weight of a gold coin, the witnesses of the parties giving conflicting evidence on the subject. Why not weigh it in the presence of the jury?"
But it seems that the jury, in a murder case, on a question of footprints, may not ex periment out of court in making tracks with an old shoe worn away like the prisoner's (State v. Sanders, 68 Mo. 202; s. c. 30 Am. 782). So in Smith v. St. Paul City Ry. Co., 32 Minn. I, it was held not error for the trial court to refuse to allow the jury to witness experiments with cars upon a railway-track outside the court-room, on the question of the possibility of an alleged collision. The court pronounced the matter one of dis cretion. The same ruling was made in Peo ple v. Sevine (Cal.), where it was held that the trial judge is not bound to stop proceed ings in order to try an experiment in open court as to the length of time it would take a candle to burn down to the point of those discovered in defendant's saloon after a fire, for setting which he is indicted. " It was a matter resting entirely in the discretion of the court. It would probably have admitted similar proof on the part of the defendant, if any had been offered; but the court was not
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bound to stop the proceedings in the court, and try the experiment in open court, as proposed. In Reg. r. Heseltine, 12 Cox Cr. Cas. 404, an indictment for arson, evidence was al lowed of experiments made by members of the fire brigade, out of court, with candles of different lengths, prepared similarly to the candle-ends found in the debris of the fire. In Ulrich v. People, 39 Mich. 245, an in dictment for rape, charged to have been com mitted in a wheat-field, the girl having testi fied that the defendant dragged her over the fence, the defendant's counsel offered evi dence of experiments made in attempting to lift girls over the same fence, in order to con tradict her! The court rather curtly held the exclusion proper. In Com. i>. Twitchell, i Brewster (Penn.), 551, a case of murder by blows with a poker on a skull, the prisoner was not permitted to prove experiments made out of court with other pokers on other skulls. But in the Billings murder case, in Saratoga County, N. Y., in 1880, panes of glass and skulls on which the effect of bul lets had been tried out of court were used in evidence to point the testimony of experts. In a very recent English case at the Bromsgrove Petty Sessions, where a woman was charged with stealing some apples, it was alleged against her that the stems of the fruit " fitted " the trees from which they were said to have been stolen. In State v. Smith, 49 Conn. 376, it was held discretionary to refuse to allow an ex pert to carry out of court and experiment with the pistol of the deceased and that of the defendant, in order to determine which caused the fatal wound in question. And in Polin î>. State, 14 Xeb. 540, it was held that the court did not err in refusing to order the sheriff to discharge some of the car tridges remaining in the defendant's revolver with which the deceased was killed, with a view of its liability to go off at halfcock. The court said the experiment could be just as well tried after the chambers of the revolver had been emptied.
