United States v. Howe

26 F. Cas. 394

Opinion

This was an indictment against Arena Howe for the crime of murder.

Dr. Bennett was called as an expert. Being sworu, he refused to testify unless first paid a reasonable compensation for giving the results of his skill and experience to the court and jury. PARKER. District Judge, declined to regard this refusal as a contempt of court, and held that there was a wide distinction between a witness called to depose to a matter of opinion depending on his skill in a particular profession or trade, and a witness -who is called to depose to facts which he saw. When he has facts within his knowledge, the public have a right to those facts, to be used in a court of justice in criminal or civil trials; but that the skill and professional experience of a man are so far his individual capital and property, that he cannot be compelled to bestow them gratuitously upon any party; that neither the public, any more than a private person. have a right to extort services from him in the line of his profession or trade, without adequate compensation; that a physician cannot lawfully be compelled to testify as an expert to matters of medical science against his objection, unless first compensated by a reasonable fee, as for a professional opinion; and his refusal to testify as to matters of medical science without such compensation cannot be punished as a contempt.