It would seem much like threshing over old straw to dwell here on the evils of partisan expert testimony; it is the opprobrium of English and American medical jurisprudence and has formed the text for articles almost without number, for the last forty or fifty years. The evils exist, however, and we have here examples of them. They will continue to exist as long as courts have no standard of qualifications for an expert; as long as anyone with a medical handle to his name can be put forward and be equally acceptable to the court and influential with the jury, whether he knows the rudiments of the subject on which he poses as an expert or not.

This case, however, illustrates a more hopeful phase of the subject; it shows that true experts can be depended upon to give an honest opinion. Out of six selected by the State for their well-known reputation and standing in the profession, who made thorough examinations of the prisoner, it dared only put one on the stand, and his testimony contained admissions that ought to have made it quite as valuable for the defense as for the prosecution. It also illustrates the need of real expert testimony in cases like this where popular prejudice runs high, when an especially prominent and popular individual has been the victim of a homicide. In such a case especially is the truth of Dr. Beard's statement that the only really valuable testimony is expert testimony, made evident. When the whole case revolves upon the question of the sanity or insanity of the accused, a calm scientific opinion is especially needed, and the worth of a witness depends upon his special knowledge of the subject in hand. And as Dr. Beard says insanity is a subject in which the emotions are especially called upon and real experts are very rare.

Another question that is suggested by this trial is that of the right of the prosecution to suppress testimony that may be favorable for the defense. When the counsel for the defense suspected that some of the experts' opinions might not be favorable to the other side, they subpænæd four of the experts who had been engaged to examine the prisoner before the trial. These gentlemen had received no retainers from the prosecution; one of them was excused, and three appeared

on the witness stand in obedience to the subpoena. The fact that they had been first called by the prosecution to examine the prisoner, was sought to be presented to the jury, but this was successfully resisted. Of the two of the six experts not subpænæd by the defense, one, Dr. Spray, appeared for the prosecution; the other, Dr. Clevenger, did not appear on the witness stand at all, his testimony being thus practically suppressed.

Theoretically, in capital cases, the accused is presumed to have all reasonable chances for his life, it is not according to the spirit of the law to deprive him of the benefit of any facts that may indicate or tend to indicate his innocence or his irresponsibility. The duty of the prosecution is supposed to be the simple furtherance of justice for the protection of society, and conviction and subsequent execution in a capital case, secured by the suppression of evidence, either directly or by legal technicalities, can only be properly characterized as a judicial murder.

Fortunately, matters have not gone so far in the case of Prendergast. Though convicted on the testimony of which I have given samples, sentenced to death, his sentence affirmed by the higher court and executive clemency denied, he still lives and is awaiting his trial for insanity.

Since the above was written, the trial for insanity has occurred, and the jury found him sane. The following from the judge's instructions will explain, to a large extent, the result.

After ruling in the trial that the former trial had settled the question of the prisoner's sanity at the time of the killing, and that only facts evidencing the occurrence of insanity since his sentence were admissible, the judge instructed the jury as follows:

"In this proceeding the question simply is, does he understand and appreciate the fact that he has been tried and found guilty of murder? Does he understand the nature of this proceeding?

"Is he so far sane as to be capable of making preparation for death? Or, in a word, is he so far sane that it would not be contrary to humanity to execute him. This is the test and whether he be sane or insane in any other sense it does not concern us to inquire.

"If you believe from the evidence that the prisoner has insane delusions in respect to some subjects, yet if you are further satisfied from the evidence that none of these delusions render him unconscious of his present condition or unfit him for making preparation for death, then you are instructed that such delusions do not constitute such insanity or lunacy as to afford a reason for staying the execution of the sentence of the court."

In other words, if a lunatic has sense enough to know he is ordered to be hanged, he must be hanged. This would leave only absolute dements and idiots to get the benefit of the plea of insanity. The special humanity, too, of making lunatics suffer punishment in proportion as they are capable of being distressed by it is peculiar to say the least.

If these instructions including that, the former verdict made the prisoner sane, are good law, they are certainly indefensible in any moral or medical point of view.

The Annotations are prepared by the following Editors and Assistants : Department of PRACTICE, PLEADING AND EVIDENCE.

Hon. George M. Dallas, Editor. Assistants: Ardemus Stewart, Henry N. Smaltz, John A. McCarthy, William Sanderson Furst. Department of CONSTITUTIONAL LAW.

Prof. Christopher G. Tiedeman, Editor. Assistants: Wm. Draper
Lewis, Wm. Struthers Ellis.

Department of MUNICIPAL COrporations.

Hon. John F. Dillon, LL. D., Editor. Assistant: Mayne R. Longstreth.

Department of EQUITY.

Richard C. McMurtrie, LL. D., Editor. Assistants: Sydney G.
Fisher, John Douglass Brown, Jr., Robert P. Bradford.

Department of TORTS.

Melville M. Bigelow, Esq., Editor. Assistants: Benjamin H.
Lowry, Alex. Durbin Lauer, Patrick C. B. O'Donovan.

DEPARTMENT OF CORPORATIONS.

Angelo T. Freedley, Esq., Editor. Assistants: Lewis Lawrence
Smith, Clinton Rogers Woodruff, Maurice G. Belknap, H.
Bovee Schermerhorn.

Department of CARRIERS AND TRANSPORTATION COMPANIES. Charles F. Beach, Jr., Esq., Editor. Assistants: Lawrence Godkin, Owen Wister, Victor Leovy, Cyrus E. Woods.

Department of Admiralty.

Morton P. Henry, Esq., Editor. Assistant: Horace L. Cheyney. Department of COMMERCIAL LAW.

Frank P. Prichard, Esq., Editor. Assistants: H. Gordon Mc-
Couch, Chas. C. Binney, Chas. C. Townsend, Francis H
Bohlen, Oliver Boyce Judson.

Department of INSURANCE.

George Richards, Esq., Editor. Assistants: George Wharton
Pepper, Luther E. Hewitt, Samuel Kahn Loucheim.

Department of CRIMINAL LAW AND CRIMINAL PRACTICE.
Prof. Geo. S. Graham, Editor. Assistants: E. Clinton Rhoads,
C. Percy Wilcox.

Department of PATENT LAW.

George Harding, Esq., Editor. Assistant: Hector T. Fenton. Department of Property.

Hon. Clement B. Penrose, Editor. Assistants: Alfred Roland
Haig, Wm. A. Davis, Jos. T. Taylor.

Department of MEDICAL JURISPRUDENCE.

Hon. Marshall D. Ewell, LL. D., Editor. Assistants: Thomas
E. D. Bradley, Milton O. Naramore.

Department of WILLS, EXECUTORS AND ADMINISTRATORS.
Hon. Wm. X. Ashman, Editor. Assistants: Howard W. Page,
Charles Wilfred Conard, Joseph Howard Rhoads, William
Henry Loyd, Jr., Edward Brooks, Jr., Samuel D. Matlack.
Department of TRUSTS AND COMBINATIONS IN REstraint of
TRADE.

H. La Barre Jayne, Esq., Editor. Assistants: George S. Patterson,
Charles F. Eggleston,

$65

Under Cal. Pol. Code, 325, which provides that a statute amended in part is not repealed, but the unchanged portions are considered as having been the law from the date of the enactment, and the amended portion as dating from the amendment, the amendment of a statute does not have the effect of repealing it, so that a subsequent amendment of the original statute, without referring to the first amendment, is inoperative and void. The Effect of an Amendment upon the Statute Amended.

I. At common law, amendments of a statute might be of two kinds, either altering the provisions of the amended statute by repcaling or supplying them, or simply changing their application by declaring what construction should be put upon them. In the latter case, there could of course be no question of repeal; but in the former there was often a question whether or not an amendment, which did not in terms repeal the former act, was to be regarded as having that effect. Such would undoubtedly be the case, as a general rule, where an independent statute enacted provisions wholly at variance with another of prior date; and there would seem to be strong reasons why an amendment, equally irreconcilable with the portion of the act amended, should have the same effect. But on the other hand, the very fact that the act was designated as an amendment would seem to point to the fact that it was intended by the legislature to form an integral part of the statute amended, simply taking the place of the provisions which it supplied; and in any case, it could only be a repeal as to the 'Reported in 36 Pac. Rep. 658.