Clawson v. State , 96 Neb. 499 ( 1914 )

Letton, J.,

concurring in part.

I think the trial court erred in overruling the objection to the question propounded Dr. Dodson.

“It is necessary in the examination of all such witnesses that questions should be so framed as not to call on the witness for a critical review of the testimony given by the other witnesses, compelling the expert to draw inferences or conclusions of fact from the testimony, or to pass on the credibility of the witnesses, the general rule being that an expert should not be asked a question in such a manner as to cover the very question to be submitted to the jury.” Rogers, Expert Testimony (2d .ed.) sec. 26, p. 61.

“The questions to him must be so shaped as to give him no occasion to mentally draw his own conclusions from the whole evidence or a part thereof, and from the conclusion so drawn express his opinion, or to decide as to the weight of evidence or the credibility of witnesses; and his answers must be such as not to involve any such conclusions so drawn, or any opinion of the expert, as to the weight of the evidence or credibility of the witness.” McMechen v. McMechen, 17 W. Va. 683, 694.

But this error could not be prejudicial to defendant. He testified that he intended and attempted to cut McKenzie with a razor, and the deceased in' attempting to ward off the blow struck his'hand and sent the razor where it cut his throat. Assuming that this theory had been established by the evidence, it would constitute no defense against the charge of which the defendant was convicted. His intention was malicious, and the fact that the assault that he made with the razor with the intention to cut the deceased resulted in a graver injury than he actually contemplated does not excuse him from the result of his unlawful act. 1 Bishop, New Criminal Law (2d ed.) secs. 328-330.

I concur in the opinion in all respects except as to this ruling of the court, and concur in the affirmance of the judgment.

Sedgwick, J. I agree with the concurring opinion of Judge Letton.