13 N.M. 192 | N.M. | 1905
OPINION OP THE COURT.
— At the March terra, A. D., 1904, of the district court for Union county, the defendant was found guilty of murder in the third degree by a jury, and, subsequently, after a motion for a new trial had been overruled, was sentenced to imprisonment for ten years in the penitentiary. The case is before us on appeal.
But even if all the allegations in his affidavit and in the two others filed in his behalf be considered as proved they do not establish unlawful discrimination. There may have been good, and lawful reason for the course taken as suggested further on in this opinion.
It remains, then, to be determined, in this branch of the case, whether the defendant was prevented from having a trial by a fair and impartial jury in the way he charges, for, to such a trial he was unquestionably entitled.
It is claimed in Ms behalf that he was under the practical necessity of exhausting the peremptory challenges to which he was entitled, on Americans, and so had none left for members of Ms own race, whom he might otherwise have challenged. We cannot assume that either the defendant’s reliance on Mexiacns, or his distrust of Americans, was well founded, that members of either race, who are all units of our great composite nationality, made up of almost all races of men, would be so regardless of their sworn obligation as to permit race prejudice to sway them for or against their fellow-being on trial for his life before them. Even if we made that assumption it would be impossible for this court, sitting as a court of law, to determine from the materials before it, whether any such discrimination as the appellant charges, was actually attempted, since other reasons than those suggested might have led to the preponderance of Americans summoned on the special venire. The record of the trial discloses at least one reasonable ground for the course the appellant says the jury commissioners took in selecting American talesmen from a distance, instead of Mexicans from the immediate neighborhood. It appeared that the trial took place in the community where the woman met her death, that some of the witnesses against the accused were nearly related to her, and that some who testified in his behalf were nearly related to him. It may well have been that one or both had other relatives in the vicinity, and that they took sides with reference to the matter, as did the witnesses at the trial. Many Mexicans in the neighborhood may, naturally, have been disqualified to serve for that and similar reasons, since the woman’s death and the arrest of the defendant on the charge of killing her must have aroused intense feeling, not only among, their relatives, but among the friends and acquaintances of each, and especially those of their own race. Besides, it is difficult .to perceive what advantage would have accrued to him if the jury had been composed, even wholly, of his own race. The woman with whose murder he was charged, was of the same race, judging from her name, and it could hardly be that Americans would be less likely than Mexicans to desire the punishment of any one proved to have taken her life. In fact, the jury seemed finally to have been made up of seven Mexicans and five Americans, and as unanimity was essential to a verdict, it cannot reasonably be 'claimed that the seven were unwillingly brought to an agreement by the five.
The appellant excepted to much of the evidence admitted and to 'the exclusion of much that was not admitted, to the instructions given and to the refusal to give thirty instructions requested; but we do not think it necessary to deal specifically with more than a -few of these exceptions.
Opinion evidence is not, in its nature, so distinct from and inferior to what is usually termed direct evidence, as it is, perhaps, commonly assumed to be. The learned author of Bishop’s New Criminal Proceduce, says, in Section 1073 of that work: “One stating an occurrence in his presence, whatever his form of words, tells us only the opinions he derived from the sensations he felt; he could know nothing more.” And in Section 1177: “Opinion * * * is the foundation of all evidence. Even- what we term direct proof is, when truly viewed, but the witness’ opinion of the source of what he has felt in the organs of sense.” In the last anatysis, therefore, all testimony may fairly be termed opinion evidence, and the court may properly act on the familiar principle that the best evidence should be offered. Unquestionably, in many cases, so-called opinion evidence would be more helpful than any direct testimony obtainable, and that for two reasons: First. It may be the testimony of one to whose sight, hearing or other senses, has been presented that which cannot be reproduced to the jury. It is said in opposition to the admission of such testimony that the facts should be stated to the jury and the opinion formed by it. But not even the great masters of literature have been able to put in words precisely what they saw; still less' what was apprehended by their other senses. There remains always something which eludes expression. In recognition of this truism courts have permitted witnesses to state their opinions with regard to sounds, their character, from what they proceed and the direction from which they seem to come; State v. Slimborn, 46 N. H. 497; Commonwealth v. Pope, 103 Mass. 440; Commonwealth v. Forsey, 103 Mass. 412; as to resemblance of foot tracks; Hotchkiss v. Germania Ins. Co., 5 Hun. 90; whether a person’s conduct was insulting; Raisler v. Springer, 38 Ala., 703, and where noisome odors render a dwelling uncomfortable; Kerney v. Farrell, 28 Conn. 317. Quoting these and other decisions, with approval, Field <T., said, in Hopt v. Utah, 120 U. S. 430: “Upon the same principle the testimony of the physician as to the direction from which the blow was delivered was admissible. It was a conclusion of fact which he would naturally draw from the wound. It was not expert testimony in the strict sense of the term, but a statement of a conclusion of fact, such as men who use their senses, constantly draw from what they see and hear in the daily concerns of life.” Similar evidence was admitted in Bram v. United States, 168 U. S. 532. In Everett v. State, 62 Ga., 65, the opinion of a person of experience, but not a physician, was admitted on the question whether death was self inflicted.
Second. The opinion offered may be that of a person qualified by study or experience, or both, to understand and explain the subject under consideration, commonly termed an expert. The opinions of such witnesses are taken in all courts on a great variety of subjects, but not usually on the question whether death was self-inflicted.
In State v. Lee, 65 Conn., 265 (1894), however, and in Commonwealth v. Leach, 156 Mass. 99, the testimony of a physician was admitted on that point, but in each of those instances, the wound testified of was in the uterus to procure abortion, and it might be said that if it had been an outward wound, open to common observation, the-testimony would have been- rejected. That objection, it seems to us, goes to the weight and not to the admissibility of such testimony. Physicians have been allowed to testify that sexual intercourse was highly improbable, if not impossible, between a man and a woman in a buggy, which was described to the jury; People v. Clark, 33 Mich. 112; that such intercourse by force was impossible-with a woman seated in a rocking chair, which was shown to the jury; State v. Perry, 41 W. Virginia, 641; 24 S. E. Rep. 638; and that it was impossible in a winding stairway, which was described to the jury; McMurran v. Righby, 80 Iowa, 322. Certainly it cannot be claimed that wounds causing death are more a matter of common knowledge than the act to which the human race owes its continuance.
In 41 W. Va., 641, supra., the admission of the testimony in question was put expressly, and in the other-eases cited, impliedly, on the ground that the witnesses “had made the human system, including its joints and organs, the subject of peculiar stud}', such as a jury would be unable to- give in the short time allowed them in the examination of the evidence, and thus (eould) assist them in arriving at a just conclusion.” Precisely that kind of research would qualify one to determine better than-an ordinary person could do, whether a wound could have been self-inflicted.
In the case at bar, the testimony of Dr. Slack was not only that of one who had seen the body of the dead woman lying as it fell over, after the fatal shot, the character and slope of the ground where the shooting occurred, and the wound itself, none of which things were seen by the jury or could be precisely described to them, but it was also the testimony of a physician of long experience, who has held inquests in nineteen cases in which death resulted from gun-shot wounds. To exclude such testimony is to hold that the opinion 'of a jury, based on evidence necessarily incomplete, is preferable to that of a man of learning and experience, who has seen and touched that of which he speaks. The ground on which such testimony should be admitted is well stated in Taylor v. Town of Monroe, 43 Conn. 44, in these words: "The true test of the admissibility of such testimony is not whether the subject matter is common or uncommon, * * * but whether the witnesses offered as experts have any peculiar knowledge or experience not common to the world, which renders their opinions founded on such knowledge or experience, any aid to the court or jury in determining the questions at issue.”
The value of the opinion of Dr. Slack it was, of course, for the jury to determine. If it preferred to form and adopt an opinion of its own on the other evidence given, it was quite at liberty to do so.
Evidence, that on a certain occasion about three years before Mrs. Vigil’s death, the defendant threatened her life with a pistol because, as he alleged, 'she was receiving the visits of another man, was properly submitted to show the relations of the parties and his disposition toward her when excited by jealousy.
Judgment affirmed.