Majors v. State , 83 Miss. 439 ( 1903 )

Truly, J.,

delivered the opinion of tbe court.

Tbe defendant offered to prove by several witnesses that, in their judgment, tbe stick or board with which it was claimed an assault was attempted to be made by tbe deceased upon tbe defendant was, in tbe bands of tbe deceased, a deadly weapon, capable of producing death or serious bodily injury. To this expression of opinion tbe state-objected, and, tbe objection being sustained, an exception was reserved, and this ruling of tbe court below is assigned as error here. We think tbe action of tbe court correct. Tbe weapon in question was produced before tbe jury, and they were as capable of deciding the question of whether or not it was a deadly weapon, capable of producing death or great bodily injury, as were tbe witnesses themselves. Tbe witnesses were permitted to state tbe size and physical prowess of tbe deceased as compared with tbe defendant, and also tbe condition in which tbe board was at tbe time of the homicide, and from this statement of facts it was for the jury to draw their own conclusions. This is tbe universally established rule of evidence. See Saffold v. State, 76 Miss., 258, 24 So. Rep., 314; Doering v. State, 49 Ind., 56, 19 Am. Rep., 669; State v. Rhoads, 29 Ohio St., 171.

The other assignments of error present nothing demanding consideration.

1Affirmed