Victorian CSI Page 2
4. Hearsay.—This is not admissible as evidence unless it form part of the res gestæ. A medical witness, therefore, though he may state in evidence the words he has heard used in direct reference to the case which forms the subject of inquiry, could not cite a case in support of his opinions if it consisted in part, as it must needs do, of statements made by the patient, his friends, or attendants.
5. Secrets.—The medical man, in the course of his professional attendance, may receive secret information which under ordinary circumstances he would be bound not to divulge. But it should be understood that in a court of justice he may be compelled to divulge these secrets.
It is now no longer necessary to warn the medical man against taking part in duels, even though his object in being present is to save life, and not to destroy it. But if in this, or in any other way, he has acted illegally, he, in common with other witnesses, is not obliged to criminate himself.
6. Wills.—A medical man may be required, on an emergency, to draft the will of a patient, or to witness the instrument. In taking the instructions of the testator, he should limit himself to such inquiries as may enable him to understand his wishes. He should write them in the fewest, simplest, and clearest words on one side of a sheet of paper, append the place and exact date of the transaction, and at the foot of the document (leaving room for two signatures) the following words:—“Signed by the above-named testator, in the presence of us present at the same time, who have hereunto signed our names as witnesses thereto, in the presence of the said testator, and in presence of each other.” The testator and witnesses must attach their signatures in accordance with these words, for the validity of the will depends in the main upon them. Witnesses to a will cannot be beneficiaries under the will.
The medical man should take care to observe the condition, bodily and mental, of the testator; and he would do well to make a note of all the circumstances of the case while they are fresh in his memory. Wills so made have been disputed, and the medical man has been summoned as a witness, and submitted to a searching examination.
* The following dates have an historic interest:—The penal code of the Bishop of Bamberg, proclaimed 1507. A uniform penal code adopted by the Diet of Ratisbon, 1532. “Constitutio Criminalis Caroline,” published 1553. Letters patent, presented to his first physician by Henry IV. of France, empowering him to appoint two surgeons in every city and large town to examine and report on wounded or murdered persons, 1603. Publication at Frankfort of the Methodus Testificandi of Condronchus, 1597, and of the works of Fortunatus Fidelis and Paul Zacchias in 1598 and 1621. First course of lectures on Forensic Medicine by Michaelis at Leipzig about 1650. See Traill’s “Outlines of Medical Jurisprudence.
* These figures are taken from the annual report, entitled “Judicial Statistics” (England and Wales), 1892.
* In a case (Trial of Bedingfield for the murder of Mrs. Rudd, Nov. 1879) Lord Chief Justice Cockburn, by not treating as a dying declaration what other high legal authorities would have considered as a part of the res gestæ, and therefore admissible, shut out an important piece of evidence. “A woman’s scream was heard from the house, and immediately afterwards the deceased was seen coming out with her throat cut, making a statement which, according to the rules of evidence, was not admissible, and in about ten minutes she was dead.” Mr. Pitt-Taylor, in a letter to the Times (Nov. 15, 1879), quotes no less than five legal authorities in favour of his opinion that the statement of the woman Rudd ought to have been admitted as part of the res gestæ.
PART I.
CHAPTER I.
PERSONAL IDENTITY. AGE. SEX.
WHEN called upon to examine the body or remains of some unknown person, we may have first to ascertain the sex and the age, and then to identify the individual by characteristic marks; or these points may have to be considered separately, both in living and in dead persons. The three subjects are here grouped together, and placed in the most convenient order; sex last, from its connection with the subjects of Chapter II.
PERSONAL IDENTITY.
Questions of identity are often raised in courts of law; as when a claim is set up to an inheritance, or a man who has been robbed or assaulted has to identify the thief or the person who has injured him. A witness may also be required to identify an acquaintance; and a jury may be empanelled for the sole purpose of trying the question of the identity of an escaped prisoner. So also as to persons found dead; and in coroners’ inquests the first step taken is to identify the body, or such parts of it as are forthcoming.
The subject of personal identity, then, divides itself into—
I. THE IDENTITY OF THE LIVING. II. THE IDENTITY OF THE DEAD.
I. IDENTITY OF THE LIVING.
The medical man may be required to examine, with a view to identification, alleged deformities or injuries, scars, or discolorations of the skin or hair; and to express an opinion on the changes that may be wrought in stature, face, and person by time, exposure, and hardship. It is also within his province to give evidence on the influence of the like causes on the mind and memory.
In order to give completeness to this subject, some questions will be briefly noticed in which medical evidence is not needed.
In cases of disputed inheritance much stress is laid on family resemblance. The celebrated Douglas Peerage case was decided in favour of the claimant, Archibald Douglas, in consequence of his proved resemblance to Colonel Stewart, his father; the twin brother, Sholto, who died young, having equally resembled Mrs. Stewart, the mother. In this case, Lord Mansfield strongly insisted on this resemblance of child to parent, as well as on the strongly contrasted fact that, in an army one hundred thousand strong, every man may be known from another; if not by feature, size, attitude, and action, by voice, gestures, smile, and expression.
Though these statements generally hold good (and not of men only, but of herds of cattle and flocks of sheep), still there are not wanting instances of persons having no connection by relationship or descent who have yet borne the closest resemblance to each other. Of this mistaken identity, Lord Chief Justice Cockburn, in the Tichborne case, cited, among other illustrations, a case on the Western Circuit, in which two men were tried and convicted for murder. The identity of one of them was sworn to by numerous witnesses; but it was afterwards proved that at the very time of the murder he was undergoing punishment for picking a pocket hundreds of miles away. A most curious case of this kind occurred in 1772, when one Mall, a barber’s apprentice, was tried at the Old Bailey for robbing a Mrs. Ryan. The witnesses swore to his identity, and the whole court thought him guilty; but on referring to the books of the court it appeared that on the day and hour of the robbery he was on his trial at the bar where he then stood for another robbery, in which he was likewise mistaken for the thief.
When the question of identity turns on the changes which time, coupled perhaps with fatigues, hardships, and privations, may work in the personal appearance, it becomes one of unusual difficulty. Cassali, a noble Bolognese, left his country at an early age, and was supposed to have died in battle; but, after thirty years, returned and claimed his property, which his heirs had appropriated. His appearance was so changed that he was imprisoned as an impostor. Zacchias was consulted, and, in his report, expressed his opinion that such a change might have been wrought by age, change of climate, diet, mode of life, and disease, and as Cassali had left home in the bloom of youth, had been exposed to the hardships of a military life, and, if he might be believed, had languished for years in prison, the judges, influenced by this opinion, and by the fact that the heirs could not prove the death of Cassali, decreed the restoration of his estates.
The general question thus submitted to Zacchias assumes a more definite form when, as in the French cases of Baronet and Martin Guerre, a false claimant is confronted with a real one, or alleges his identity with a person long since dead, as in the Tichborne case,* or when, as in this case, the claimant is alleged not only not to be the man he is personating, but some
other person.
In all such cases of disputed identity great importance attaches to the existence, or absence, of such marks as nævi, moles, deformities, scars of previous disease or injury, and tattoo markings. The Tichborne case has also given renewed importance to the effect of lapse of time in changing the stature, form, and features, and in destroying or modifying the memory and habits of thought, as expressed in words spoken or written; and it has shown the importance that may attach to photographs, as the most exact representation possible of the personal appearance at the time when they were taken.
Scars and Tattoo Markings.—1. Scars.—When a claimant presents himself without the marks or scars known to have characterised the individual whom he personates, his case must break down under personal examination; but if these marks or scars are found upon him, they are the strongest possible evidence in his favour, and would, indeed, be conclusive but that they may have been fraudulently imitated, or they may be coincidences which although improbable are not impossible. That such coincidences may happen, is proved by the case, quoted by Beck, of Joseph Parker, tried at New York in 1804, for bigamy. He was mistaken for Thomas Hoag, whom he not merely resembled, but had in common with him a scar on the forehead, a small mark on the neck, and a lisp in his speech; but, unlike Hoag, no scar on the foot. That he was Parker, and not Hoag, was proved to the satisfaction of the jury by an alibi.
Removal and disappearance of scars.—The question of identity has sometimes turned on the possibility of removing scars, upon which some difference of opinion has been expressed. Thus, in a Belgian case that occurred in 1847, M. Vandelaer stated that scars might be removed by time or by artificial means, and the physicians of the prisons of Valvorde and Ghent confirmed this opinion by stating that prisoners are in the habit of effacing scars by applying a salted herring to them. MM. Lebeau and Limanges, on the other hand, contended that scars could not be removed. On this subject Casper states that the length of time during which a scar subsists depends on the depth to which the tissues of the skin have been injured. Scars of superficial injuries which have only affected the epidermis, or scarf skin, and left the true skin intact, may entirely disappear. But we may confidently assert that even the slight wounds caused by bleeding or cupping, if they have penetrated the whole depth of the cutaneous tissues, and, à fortiori, such wounds, injuries, or ulcers as have caused loss of substance, followed by granulation, leave behind them permanent scars.
Scars may, however, fade with the lapse of time; and, on the other hand, owing to their slight vascularity as compared with the surrounding skin, be rendered more distinct by friction, pressure, blows, or irritants. Thus, Devergie states that the white brand-mark of the galley-slave which has apparently disappeared may be rendered visible by slapping the spot with the hand till it reddens.
The belief that the effects of injuries may wholly disappear is probably founded on the very slight marks left by extensive wounds when they heal by what is technically called the “first intention.” Thus, in the case of a maniac who had completely removed the parts of generation, the place of the wound was marked by a faint white line, which a casual observer might overlook; and the severe floggings of former times, which left the back quite raw, are traceable after some years only by fine white lines on the back and sides, and, where the knots had fallen, by little circular pits. In a case in which we were consulted, the entire absence of both kinds of mark enabled us to state with confidence that the man could not have been, as was alleged, very severely flogged (G.).*
The removal of scars has another important bearing on the question of identification. It may happen that an impostor, aware that evidence will be forthcoming that he has certain tattoo or other superficial marks on his person which the man he is personating had not, resorts to heat or strong corrosives, or such agents as the vaccine virus, to erase the marks in question. The substituted marks thus become a very strong presumption of imposition, especially if the person bearing these marks cannot or will not explain the way in which they were produced, or offers some explanation that refutes itself. It will be presently shown that the claimant in the Tichborne case had two such marks on his left arm.
Shape, situation, and depth of scars.—The cause of a scar may often be inferred from its appearance, and the situation in which it is found. Thus, a linear scar, or a round or oval surface scar, on the arm, ankle, or temple, follows bleeding; parallel linear scars on the loins, shoulders, nape of neck, or other fleshy part, would be the result of cupping; a crucial linear scar on any part of the body would indicate a boil treated by incision; two parallel linear scars on the nape of the neck, shoulder, or inner side of the upper arm, would mark a seton; and a depressed, puckered scar on the same parts, an issue; a honeycombed disc near the insertion of the deltoid muscle indicates the operation of vaccination; a white disc with dotted border may follow a boil that has healed without operation; and every form of cicatrix in the neck, on the chest, and elsewhere may follow scrofulous abscesses. Scrofula, small-pox, syphilis, and lupus, in common with injuries by gunshot, burns, and escharotics, may leave behind them scars of every size and form.
Changes in colour of scars.—All scars, without exception, pass through two distinct stages—that of inflammatory redness (the immediate consequence of the injury sustained) and that of brown discoloration. In phlegmonous erysipelas, and after the application of blisters, mustard poultices, and other strong irritants, the skin, which was red during the inflammatory stage, assumes a dark brown or coppery hue. This it retains for months, and even for three or four years. At length, and by degrees, the skin resumes its healthy colour. But sometimes, when the inflammation runs high, the brown discoloration is followed by a third stage, or that of bleaching. Thus we have seen, after the lapse of two years and a half, the spot to which a large blister had been applied defined by a white margin, and white decoloration occupying the whole surface on a level with the surrounding healthy skin (G.). Such surface scars follow the less severe forms of herpes, boils that heal after slight destruction of texture, and even incised wounds and lancet cuts, where the edges have not been brought together, and some slight superficial ulceration has taken place. In those cases in which the inflammation, however produced, is followed by ulceration, and consequent destruction of tissue, and still more where gangrene sets in, the scars are wholly or in part sunk beneath the surface. In these cases, too, the scar passes through the three stages of inflammatory redness, brown discoloration, and bleaching.
The cicatricial tissue is wanting in the characteristics of true skin; it has neither sebaceous nor sweat glands and no hair follicles.
Healing of scars.—This is influenced by many causes, such as age, constitution, and state of health, the situation of the scar on flat, rounded, or hollow surfaces, on parts subject or not subject to motion, and in the direction of muscles or across them.
Distinctness of Scars.—This will depend on the complexion, and the tint of parts adjacent. Thus, scars are less apparent in persons of fair complexion, when the skin approaches in tint to the whiteness of the scar itself, and more distinct over a blue vein or discoloured portion of skin.
Age of Scars.—As has been stated, all scars, whether arising from injury or disease, are first red, then brown, then white and glistening. The redness, as a rule, lasts two, three, or four weeks, during the period of healing; the brown discoloration for several months, or even for a few years; the bleached appearance for the rest of life. But the duration of each stage is subject to great variation, as is seen in some cases of small-pox, where the scars are white and shining at the end of six months, while in others they remain brown even after two or three years. Scrofulous ulcers, too, sometimes leave coloured scars for the whole of life. A scar, then, that retains its inflammatory redness cannot be of long standing; one that has a brown or coppery colour may have existed for months or years; a white glistening scar, quite free from colour, must have been of long standing; but we cannot even guess at its age.
 
; Some scars are parti-coloured, perhaps brown in the central parts, with a white puckered halo; or white in the centre with a brown margin. Thus a scar of ten years’ standing from a boil consisted of a white disc, with a circular margin of brown spots. Sometimes we have an opportunity of comparing a recent scar with one of longer standing due to the same cause, as in a prisoner who had two attacks of herpes, one under the right, the other under the left clavicle. The first, of a few months’ standing, displayed the rash in all its details in dark brown; the second, of many years’ standing, consisted of a group of scattered white cicatrices. Scars made during infancy increase in size with the growth of the body.
Rules for examining scars.—Place the scar, if possible, in the bright light of the sun, and, in the case of small and delicate scars, use a lens. Measure the scar carefully with compasses, and note its exact dimensions. Record the form and colour of the several parts of which it consists. Redden the surrounding skin by blows or friction. Note whether it is on a level with, or sunk beneath, the surrounding surface; and whether it moves with the skin or remains fixed.
2. Tattoo markings.—The presence or absence of these marks may, as in the Tichborne case, prove of the first importance; and the question naturally arises, whether these marks can disappear or be removed. Most tattoo marks are certainly indelible if not interfered with; but that they may in some cases disappear is proved by the observations of Casper, Hutin, and Tardieu; though these authorities differ widely as to the proportion of cases, Casper alleging the high fraction of 1 in 9, Tardieu the much lower one of 1 in 25. Much depends on the kind of colouring matter employed. Cinnabar, blue ink, and common ink create less permanent marks than Indian ink, soot, washing blue, coal-dust, or gunpowder. Skilfully performed tatooing with gunpowder may be pronounced indelible. The difference in the durability of the marks depends on the relative solubility and chemical stability of the colouring matters. When they disappear, the colouring matter is found deposited in the nearest absorbent glands, where it may be found after death. The absorption of the colouring matter is rarely so complete as not to leave some traces behind.