Mayberry v. State , 107 Ala. 64 ( 1894 )

BRICIvELL, C. J.

The general rule is, that witnesses must testify to facts, and are not permitted to express mere matters of opinion. The rule lias its boundaries and exceptions, which are as well defined as the rule itself. Where a fact cannot be reproduced and made apparent to the jury, a witness may describe the fact according to the effect produced on his mind; or, if from the nature of a particular fact, better evidence is not attainable, the opinion of a witness derived from observation, is admissible. — l Whart. Ev. § 511; Lawson on Expert and Opinion Evidence, 460.

The principal fact to be proved was that at a particular time, the defendant carried a pistol concealed about his person. The fact that he had at that time, in his pocket, something the impression of which bore a resemblance to the impression a pistol would make, was material and relevant — it had a tendency to prove the principal fact. It is difficult to conceive any mode in which this evidential fact could be communicated to the jury, if a witness observing it, could not declare the effect produced on his mind; or if he could not express die opinion that the impression was that of a pistol. The witness was subject to cross-examination, and if a particular description of the impression was deemed necessary, it could have been elicited, and it may be, the weight of the evidence lessened or destroyed ; but of itself the evidence was admissible.

The denial of the defendant that he had a pistol, and the search of his person leading to the discovery of the “horse-shoe magnet” only, was not contemporaneous with ilie principal fact, the carrying of the pistol concealed. That was a fact consummated, if it existed. It is true, that acts or declarations may form parts of the res gestee, though not in point of time exactly coincident with the main fact. But they must appear to stand to the happening ©f the main fact in tlie relation of unpremeditated result, and the idea of deliberate design in doing, or making them must be fairly precluded by the surrounding circumstances.—Gandy v. Humphries, 35 Ala. 617. There is no room for regarding the denial of the defendant, or the search of his person, as standing in the relation of unpremeditated result to the main fact; nor is there in any of the circumstances an exclusion of deliberate design in the utterance of the one, or in the voluntary submission to the other. The time intervening between the happening of the main fact and these occurrences, afforded opportunities for preparation and concoction; and as the evidence presented them', they were, the mere self-serving declarations and conduct of the defendant, which could not be received as evidence for him. — Wliart. Cr. Ev., § 590.'

There is no error in the record, and the judgment must be affirmed.