Commonwealth v. Campbell

Opinion by

Rice, P. J.,

The defendant was sentenced upon the third count of the indictment, which charged that he maliciously inflicted upon the prosecutrix grievous bodily harm by striking her on the head with a chair, by choking her, by throwing her down violently and otherwise beating, bruising and abusing her. Upon the trial of the case, which took place in November, 1905, she testified in support of this charge that on Christmas, 1904, amongst other injuries, he knocked her down with a chair, thereby causing a lump on her head, which, to adopt her language, “ swelled up and got sore all the time after that,” and that, although it sometimes got better, the wound was not entirely healed at the time of the trial. In view of this testimony and of the natúre of the charge upon which the defendant was being tried, it was perfectly competent, not only to introduce the testimony of the physician as to what he found to be the condition of her head when he examined her within four or five months before the time of the trial, but also to elicit from him as a medical expert the opinion that the injuries were caused by a blunt instrument, and that they might have been inflicted as long before as December, 1904. This we think needs no discussion. Nor was there any error in calling the jury’s attention to this testimony when the judge was summarizing the testimony of the witnesses on the one side and the other in his charge. He had carefully and fully instructed them that the credibility of the witnesses and the weight to be attached to their testimony were exclusively questions for their determination, and what .was said regarding the testimony of this particular witness could not have been understood by them as qualifying in any manner these general instructions. His testimony, if believed, tended to corroborate the prosecutrix as to the seriousness of the injuries, and we cannot see that, the excerpt from the charge, quoted in the second assignment, ascribed1 to it any other significance.

In considering the third assignment of error it is important to notice that one of the standing rules of the court below provides, inter alia, that “ the re-examination of a witness shall be only in respect to explanation of any new 'matter elicited on his cross-examination unless with leave of the court where the matter had been overlooked in chief.” There can be no question as to the power of the court to adopt such a rule. When administered with proper discretion the rule tends to secure orderly procedure in the examination and cross-examination of witnesses, and does not prevent the re-examination .of a witness under circumstaiices where the justice of the case requires it. Upon consideration of the course pursued in the examination, cross-examination and re-examination of this witness, as shown by the record, we are not convinced that the court erred in enforcing the rule. • Moreover, the testimony sought to be introduced by the question quoted in the assignment of error was in reality but the opinion of the witness as to a matter not calling for expert or opinion evidence. It was not alleged that this opinion which it was proposed to have the witness give was based upon an actual experiment made by him. Nor were any special circumstances shown from which, it could be inferred that this witness was better qualified than the jury to' form an opinion as to the ability of a person, at the distance described, to see an assault to which a witness for the commonwealth had testified. Therefore, the court committed no error in excluding the question.

The fourth assignment of error is in plain violation of our rule which provides, that if any assignment embrace more than one point or refer to more than one bill of exceptions, it shall be considered a waiver of all the errors so alleged: Rule XIV. But aside from that objection, the assignment is without merit, because it does not appear from any of the several questions therein quoted that they related to threats, declarations or conduct of the prosecutrix which were connected with the assaults to which she had testified.

That part of the charge relative to reasonable doubt, quoted in the fifth assignment, is to be read in connection with what immediately preceded it relative to the same subject. Thus considered, the defendant has no just ground for complaint. Indeed, to charge that if one juror has a reasonable doubt, “ the other eleven jurymen should come to the mind of that one,” was stating the law more favorably to the defendant than he had a right to ask, and much more favorably to him than if the court had affirmed, without qualification or correction, his request for instructions as set forth in the stenographer’s report of the trial.

The defendant had a fair trial according to the forms of law, and was convicted upon competent evidence which fully justified the verdict of the jury.

All the assignments are overruled, the judgment is affirmed and the record is remitted to the court below with directions that the sentence be fully carried into effect, and that the defendant undergo the full term of imprisonment which had not expired when this appeal was made a supersedeas.