DePhue v. State , 44 Ala. 32 ( 1870 )

PETERS, J.

It is said, that it is the duty of the judge who presides, to confine the evidence to the points in issue, that the attention of the jury may not be distracted, nor the public time needlessly wasted. — >1 Phillips Ev. p. 782, and notes; 4th Amer. Ed. Cow. & Hill. Here the issue was the fact of the manslaughter, of which the defendant below was accused.

It is very evident that the unimpeached reputation of the physician, a witness who examined the wound from the effects of which the deceased is supposed to have died, could not have had any more connection with the act of the killing, than the color or age of the doctor could have had with the same facts. Whether a witness, who is a physician, in such a case as this, has a reputation for skill, or the want of it, in his profession, is no part of the issue, unless the capacity of the witness, in his profession, is impeached.

In this case there was no such impeachment. The reputation, in his profession, of a medical witness, can neither prove nor disprove the facts necessary to establish such a homicide as amounts to the crime of manslaughter. Then, the reputation of Dr. Logan, as a physician, was wholly irrelevant, and it was improperly admitted, when it does not appear that his skill or capacity, in his profession, has been assailed. And such was the case here. A physician is an expert, and as such he may be asked questions which develop his capacity, to form a correct judgment upon the experiences of his profession; but his reputation has nothing to do with this ; and it can only be sustained when it is impeached. — 1 Burr. Law Dict. 589; Expert, Broom’s Max. 721, margin; Tullis v. Kidd, 12 Ala. 648.

In criminal cases, the life or liberty of the accused is often most deeply concerned. It is the purpose of the law to guard and protect these with the most sedulous assiduity and certainty. Then, in such cases, no looseness of practice should be encouraged, which, by possibility, might lead to an improper conviction. A doubtful conviction is always an improper conviction. It is better, say the old authorities, that an indefinite number of guilty persons should escape, than that one, who is innocent, should be convicted and punished. — Starkie on Ev., Sharswood’s Notes, pp. 729, 742; Hale, 290.

The wisdom and justice of this humane maxim is always held most sacred by the wisest and best judges. And, we think, it can be best upheld by adhering most strictly to the rule in criminal cases, which excludes all irrelevant testimony.

It is true that a reversal ought not to be allowed, so long as the record shows that the conviction has been certainly correct, and that the jury, upon whose verdict it is founded, were governed by the legal evidence alone, which tended to support it. The mere fact that the court refuses, upon objection, to exclude a part of the testimony delivered before them, is evidence to the jury that such testimony is of some importance, and tends to prove the guilt of the accused. And it justifies them in so considering it, particularly under a general charge which rests the verdict upon all the evidence not excluded from their consideration, as was done in this instance. We could not say that such a practice might not result in an improper conviction. And unless this incontestably appeared, this court could not say that the irrelevant evidence could have had no improper influence upon the verdict.

And although we reverse this cause with hesitancy and reluctance, yet, if such a practice is permitted to stand, it opens the way for a dangerous departure from a primary rule of evidence, which we do not feel willing to encourage or sanction.

The conviction is, therefore, reversed, and the cause remanded for a new trial. And the defendant below, if in' 'custody, will be held in custody until legally discharged.