In another well known case, the Judge said to the jury, “It is not the province of the expert to draw inferences of facts from the evidence, but simply to declare his opinion on a known, or hypothetical state of facts, and therefore the counsel on each side have put to the physicians such states of fact as they deem warranted by the evidence, and have taken their opinions thereon. If you consider any of these states of facts put to the medical witnesses are proved, then the opinions thereon are admissible evidence, to be weighed by you, otherwise their opinions are not applicable to the case” [335]. The opinions of both experts and non-experts should have weight according to their opportunities and qualifications for examination of the state of mind of the person whose sanity is in question. First of all will be the family, or the physician who has attended the patient through the disease which is supposed to have disabled his mind; next are those who, without special learning on the subject, have had the best opportunities for judging—the members of his family and those whose intimacy in the family, have given them opportunities of seeing the patient at all times and |128| noticing the alienation of his mind; and last, come those who only occasionally and at intervals have seen him, and whose chances of studying his moods have been small [336]. It has been held, in Massachusetts, that a physician who had not made insanity a special subject, and who, when consulted in such matters, always called in a specialist, is not competent to give an opinion on an hypothetical case put to him, unless he was the person’s attending physician; then his opinion is received, as it is his duty to make himself acquainted with the peculiarities, bodily and mental, of a person who is the subject of his care and advice [337]. And where a physician had for more than thirty years been exclusively treating the insane, he was not permitted to testify, as an expert, to the mental capacity of a person—not previously insane—who was in the last stages of disease [338]. One not an expert may give an opinion, founded on observation, as to whether a person is sane or insane, notwithstanding the general rule, that persons not medical men cannot give their opinions as to the existence, nature or extent of disease in any one. The exception was first introduced in regard to the subscribing witnesses to a will, who were permitted to speak as to the testator’s state of mind; it has now been extended to all cases where the witness’ acquaintance with the party whose sanity is in dispute, or his means of observation, are sufficient to enable him to express his opinion as to the mental condition. The Courts of Massachusetts, Maine, New Hampshire and Texas, however, still adhere to the old rule and admit the evidence of non-experts only in cases of wills [339]. |129| CHAPTER X. DEFAMATION.