Dillard v. State , 58 Miss. 368 ( 1880 )

Chalmers, C. J.,

delivered the opinion of the court.

■ There was no error in refusing the change of venue. Six affiants made oath for defendant that such prejudice existed in the county that an impartial trial could not be there had. Twentj'-four persons, by-standers in the court-room, from different portions of the county, testified that they knew of no such prejudice, and that in their opinion an impartial trial could be had in the county. This justified the action of the court. The special venire was drawn, the jury empanelled, the witnesses on both sides sworn and placed under the rule, and the first witness put on the stand and his examination about to be proceeded with, when it was discovered that the minutes of the court did not show any arraignment of, or plea by, the accused. The defendant being then called upon to plead, declined to do so, and “ objected to an arraignment at this time, after the drawing of the special venire and the swearing of the jury.” His objection was overruled, and he excepted. Being then again called upon to plead guilty or not guilty to the indictment preferred against him, he refused to plead, and, standing mute, the court ordered a plea of not guilty to be entered for him, to which also he excepted. His exception was overruled, and the trial proceeded without further objection on this point. If we could consider the defendant’s objections as intended to apply to a trial before the jury then in the box, and as sufficiently advising the court below of that intention, we would be disposed to ignore technicalities as to.the form in which they were presented and to consider the objections as they were intended. The empanelling of the jury before arraignment was of course improper, and would have been fatal to the verdict at common law, but whether so under our statutes (Code 1871, sects. 2759 — 2843) is more doubtful. However this may be, it was certainly the duty of the accused, after the arraignment was had, to object in some way to a trial before the jury already empanelled. But he seems carefully to have abstained from this. All of his objections were to arraignment, and when these were overruled his objections ceased ; nor did he thereafter in any manner give the court to understand that he objected to the trial being then proceeded with. If the court below ruled correctly upon all the objections urged before it, certainly the accused cannot claim a reversal because from those submitted another was not by the court inferred which might possibly have been good, but which was never made. That the court below did rule correctly upon the question of arraignment is too plain for argument. Manifestly, the power to arraign was not lost by the precedent, and therefore improper, empanelling of the jury. So to hold.would lead to the absurd result that the accused could never be arraigned or tried at all. What steps should follow arraignment was a wholly different question. If he objected to anything thereafter done, or proposed to be done, it was essential under our statute that he should have specifically stated his objections before verdict. The language of the statute is explicit: “No person shall be acquitted or discharged in criminal cases before verdict of a jury, for any irregularity in the pleadings or proceedings ; nor shall any verdict or judgment be arrested, reversed, or annulled after the same is rendered, for any defect or omission in any jury, either grand or petit, or for any other defect, either of form or of substance, which might have been taken advantage of before verdict and which shall not have been so taken advantage of.” Code 1871, sect. 2884.

This section is added to, but not changed, by the act of 1878 (Sess. Acts, p. 200), except to be made more stringent. It is true that it was said in Newcomb's Case, 37 Miss. 397, that, notwithstanding this statute, or rather an older and similar one, a defect in an indictment so fatal that no offence was charged might be taken advantage of after verdict, for the obvious reason that, nothing being charged, the conviction was a nullity ; but the question here is of no such character. Except as a matter of the orderly conduct of business and of convenience of trial, au arraignment might as well succeed as precede the empanelling of the jury, and there is no such importance or sanctity about the time when it shall take place as to make a verdict null, despite the statute, where it has taken place at an improper time.

The object of the statute quoted was to defeat what may have been the intention here, namely, to object only to an arraignment, and, this being overruled, to permit the trial to proceed without objection, claiming, of course, an acquittal if the result was favorable, and a reversal if it was not.

There is no force in the point urged that the court below, by calling upon the prisoner to plead “ guilty or not guilty,” debarred him from pleading in abatement. The arraignment was in the usual form, and there was no suggestion that he desired to plead in abatement.

The dying declarations of the deceased were properly admitted in evidence. He had declared that “ he was bound to die” — “ could not get well.” It is doubtful whether this declaration preceded the statement as to the circumstances of the difficulty as testified to by one of the witnesses, but the statement as detailed by that witness is similar to that testified to by other witnesses, who clearly show that the declaration as to the certainty of impending death preceded the account given of the difficulty.

It is objected that the testimony of witnesses was improperly admitted to the effect that, ten hours after the difficulty which resulted in the subsequent death of the deceased, they observed spots of blood upon the horse which deceased was riding at the time he received his wounds.

It is said that when a substance resembling blood is testified to as being found near the scene of combat, or upon the body or weapon of one of the combatants, it cannot be presumed to be blood, but must be proved to be such by actual-examination under a chemical analysis ; and in support of this proposition the authority of Burrill on Circumstantial Evidence, pp. 136, 137, is cited. We understand Mr. Burrill as declaring that, in a case resting upon circumstantial evidence, proof of apparent blood-spots, without chemical analysis, will not warrant a legal presumption that the substance was blood, because of the similarity of stains that may be left by many other substances, but not as declaring that such proof would be incompetent in the absence of analysis. If this latter is his meaning, we decline to adopt it as a rule of evidence. The number of men in this State who are capable of making a chemical analysis of blood is very limited, and to reject on that account all proof of apparent blood-stains as indicia of crime would strike down one of the most potent methods of detecting it.

It is assigned for error that the jury inspected the horse that the deceased was riding on the night of the difficulty, and made experiments with a view of ascertaining whether it was possible for the wounds sustained by him to have been inflicted by a knife in the hands’of a person standing on the ground.

If the record showed that this examination of the horse took place out of the presence of the court and in the absence of the prisoner, it would be fatal to the verdict. 3 Whart. Cr. Law (7th ed.), sects. 3160, 3313, 3314; Benton v. The State, 30 Ark. 328 ; 24 La. An. 46. But the record does not show this. On the contrary, the very meagre entry on the subject in the bill of exceptions seems to indicate that the production of the horse and the test by experiments was a part of the proof offered by the State. As it would have been competent for the court to have permitted this in the presence of the prisoner, we must presume that it was properly done.

The shirt worn by the prisoner at the time of the combat,, which was covered with spots of blood, was produced on the trial, and the prisoner proposed to ask various physicians who were introduced as experts to give their opinions as to the relative positions of the combatants at the time of the difficulty, as indicated by the blood upon the shirt, with a view, as was stated, of showing by the blood-marks that the prisoner was probably prostrate on the ground, and deceased on top of him, when the stains on the shirt were received.

The court refused to admit the testimony, upon the' ground that it was not a matter of science or of technical skill, but one of common experience and common sense, as to which the jury must judge for themselves.

The opinions of witnesses are receivable in evidence in two classes of cases, to wit: First, where experts in a particular science or calling are permitted, with or without acquaintance with the special matter in hand, to state the opinions formed from such acquaintance or from hypothetical statements of facts propounded to them; and, second, where persons not experts are permitted to testify as to the opinions formed by themselves in regard to the common transactions of life, at the time of their occurrence, in consequence of things which cannot be reproduced before the jury. Under the first head would come the familiar cases of opinions of men of science testifying as to the peculiar learning connected therewith, or of the practical man who details the results of long observation in the particular calling to which he has devoted himself. Under the second would fall those instances in which the common observer is permitted to testify as to the direction from which a particular sound seemed to come, or as to the apparent size or weight of a stationary object or the speed of a moving one, as to whether a person appeared to be sick or well, or drunk or sober, or sane or insane, as well as countless other instances, more easily imagined than enumerated.

All such things are more or less matters of opinion ; but because the witness has possessed advantages of observation which cannot be enjoyed by or be reproduced before the jury, and because they relate to matters about which a man of average good sense may, without special training, be safely trusted to form a correct opinion, the law permits that opinion to be given in evidence. But if, as to such matters, the jury can be put in possession of all the facilities for forming a correct opinion that the witness had, they must come to their conclusions unembarrassed by the opinions of others. In the case at bar, the physicians whom it was proposed to examin'e as to their opinions relative to the flow of blood upon the shirt saw the garment exactly as it was when produced before the jury, and had no other facility than the jury for arriving at a correct conclusion in regard to it. Unless, therefore, the inquiry can be regarded as involving some matter of science or technical skill, their opinions were inadmissible in evidence. What is a matter of science and what a matter of common experience is alwai^s a question for the court to decide, and we think that the court below committed no error in holding that the inquiry here related to the latter and not to the former.

Experts in the running of railroad trains have not been permitted to give opinions as to whether the time allowed for a passenger to alight from the train was sufiicient, nor whether the blowing of a whistle under certain circumstances would have been prudent. Keller v. Railroad Co., 2 Abb. Pr. 480; Hill v. Railroad Co., 55 Me. 438.

A physician was not allowed, in Cook v. The State, 24 N. J. L. 843, to give his opinion as to the possibility of a rape having been committed in a particular manner described by a previous witness.

Farmers were not allowed, in Enright v. Railroad Company, 33 Cal. 230, to give opinions as experts as to the sufficiency of a fence to restrain cattle; nor insurance men and. real-estate dealers to testify as to the increased liability to fire in unoccupied buildings. Muloy v. Insurance Co., 2 Gray, 541. See also, to the same general effect, Gavish v. Pacific R. Co., 49 Mo. 274; Connell v. Phœnix Ins. Co., 59 Me. 582 ; Allen v. Stout, 51 N. Y. 668.

The principle of all these cases is that the inquiries related, not to matters of science or technical skill, but to the common affairs of life, as to which the jury must form.their own conclusions from the facts proved. Certainly the matter in hand in this case seems much more clearly one in the consideration of which the hypothetical conjectures of so-called experts should be excluded than in some of the cases cited above. The case of The Commonwealth v. Sturdivant, 117 Mass. 122, was much like the one in hand. There a chemist was permitted to testify as to the probable flow of blood upon a garment, but it was on the ground, not that he was an expert, but because the blood originally on the coat had been in great measure rubbed off before it was produced before the jury, and he was therefore permitted, as any common observer would have been, to state the opinion formed at the time from its original appearance. This was but an illustration of that class of opinions alluded to above as being receivable in evidence, not as deductions from science, but as the suggestions of common sense and common experience from the observation of things which cannot be reproduced before the jury. No such facts existed in this case.

Three witnesses for the State, on reexamination, were allowed, against the objections of the prisoner, to repeat, in contradiction of testimony which had been given for him, certain statements which they had made in their examination in chief. It is urged that they should have been restricted to matter in rebuttal of the proof made by the accused, and should not have been allowed to repeat what they had already testified to in chief.

Undoubtedly the general rule is as stated, and the reintroduction of witnesses for the mere purpose of repeating their testimony should not be allowed; but such matters rest largely in the discretion of the court, and will not, ordinarily, afford ground of reversal. We cannot see that any injustice was done by it in this case.

No improper conduct on the part of the jury during their retirement was shown.

Judgment affirmed.