PRACTICAL TESTS IN EVIDENCE. VIII.
By Irving Browne.
TN regard to -the voluntary exhibition of The court rely on Stokes v. State, 5 Baxt. -•- the person in a civil action for corporeal 619, 30 Am. Rep. 72, which I have hereto injury, the Michigan Court seems alone in fore commented on; and the court say: "The holding, as it holds in Carstens v. Haurel- principle of the decision from which we have man, that it is not permissible. This was a quoted is that it would have been unlawful question of the surgical treatment of a to force the witness to give (or make) evi broken leg of a woman. The trial court dence against himself; and the plan adopted refused to allow her to show the leg to the and permitted accomplished the same result jury. On appeal this was affirmed, partly by indirect means. Thus regarded and con on the ground that the injury occurred sidered, it is difficult to perceive a difference several years' before. It is difficult to see in its hurtful bearing between making the what force there is in that position. If the! offer in the court-room before the jury and maltreatment was apparent after several proving by a credible witness that it had years, so much the worse for the surgeon. been unsuccessfully made outside of the But the court more explicitly observed : court-room." "No inspection after an injury is healed, In Copp v. Commonwealth, 87 Ky. 35, apart from some knowledge of the character an indictment for assault with a knife, the of the injury and the method of treatment, people's attorney put his hands on the face could enable even a medical expert to decide of the prosecuting witness, and said : " Gen upon the merits or demerits of the attending tlemen, look at that scar on his face; is that surgeon. A jury's guessing from such an worth only fifty dollars? " This was objected inspection would be of no value whatever; to, but not rebuked by the court, and was and any needless exposure would have been, held error. The ground seems to have been as the court below properly held, improper, that it was a departure from the statutory if not indecent." I leave the subtle point of direction of " the mode and order in which modesty out of the question, merely saying testimony may be given to the jury." A decision denying the right of the de that one would suppose that if the woman did not object the court need not be squcam-; fendant to compel the plaintiff to submit to ish! But as to the extent of the maltreat a physical examination, which I believe I ment and its effect upon the amount of have not cited, is Kern v. Bridwell, 119 Ind. damages, there can be no doubt that the 220. This was an action of slander in charg exhibition of the limb was proper. It is the ing that the plaintiff was unchaste, and had commonest thing in the world to allow it, and become pregnant and had committed an abortion, and the defendant justified. The I cannot recall another case that denies it. In respect to self-criminating demonstra court said : " We are not cited to any case tion, it was held, in Cooper v. State, 86 Ala. where any court has held such an examina 610, n Am. St. Rep. 84, that the prisoner's tion to be proper, and we think none can be refusal to make footprints, under a promise found. One should not publish and circulate of release if the tracks when made did not slanderous charges against a young unmar exactly correspond with those of the sus ried female, as proven in this case, without pected party, may not be used against him. being able to substantiate them, when called
