*1 Murray J. D. State Tennessee. 918.
377 S.W.2d Term, 1963.) September (Knoxville, Opinion 5, 1964. filed March *2 ARMSTRONG & John A. Arm- Greeneville, Sañtore, plaintiff Greeneville, error. counsel, in strong, Attorney F. McCanless, George E. General, Thomas Attorney Fox, Assistant for the General, State. delivered the of the Court. Mr. Felts Justice only question This a criminal case in which prosecu- medical certain in an whether incest erroneously tion was in admitted into evidence court. Murray,
Plaintiff D. as error, J. referred to defend- daughter, committing ant, was indicted for incest with his Faye Murray 39-705). (T.C.A. Linda found sec. He was guilty punishment and his at not less fised years penitentiary, than five nor more than judgment accordingly. entered appealed assigns
He has in error and one error: per- that the trial court reversible error in committed mitting physician testify that an incestuous union things one of the cause to a could girl. child horn ato assigned regarding Defendant suffi- has not error *3 ciency of the evidence. not need discuss We, therefore, upon or the facts the comment further to show importance complained and of this effect error of assignment.
The his that State’s showed defendant forced year prosecutrix Faye, daughter, old Linda case, in this to have intercourse with him on sexual June forcing 19, 1962. It also her showed that he had been eight relationship a him into such with since she was only years fear had of her old that she submitted because substantially him. Prosecutrix’s cor- of was by her brother sister. roborated and any having with Defendant denied sexual relations ever daughter, prosecutrix his testified that the con- and had spired get a with her to him convicted because of sister baby controversy prosecutrix’s of sister. De- over loyal husband, her but did wife was to admit fendant’s subject his relations on that cross examination prosecutrix between them. been discussed with County D. Huffman, the trial court Dr. 0. In County, Physician that State of Greene testified baby to the sixteen was born he in attendance when was a baby year in- prosecutrix; malformed old that system ternally to the extent in its central nervous forty-eight incestuous hours; and an lived it deformity in a child one of the causes would be union mother. a sixteen borne alleged objected this evidence Defendant to unqualified a ground such to make that Dr. Huffman was special degree in the hold a he did not since statement objected alleged genetics. to on the It further field highly preju- “highly speculative ground is purely opinion being an defendant, to the dicial ’’ speculation. opinions general rule that it is true as While a al court, witnesses are not in the admissible permit qualified expert ways permissible state a a subject give on which the conclusion expert opinion; help need the trial court and speak qualified it is on which the part. superior knowledge peculiarly his matter of & Accident Ins. Co. Follet, National Life S.W.2d *4 judge preliminary matter the In a trial this case as presence properly of examined Dr. Huffman out the of expert. qualifications jury to determine his as the common the that it was knowl- Huffman testified to court physicians among practicing edge of that several causes system deformity central nervous existed; that, of -the among things, relationship other an incestuous could deformity; such canse a in that instant the case he opin- eliminated all other known canses; and that his in deformity ion an incestuous union was the cause of the prosecutrix’s baby. judge per "Wethink that trial the correct was mitting give testimony expert Dr. Huffman to as an deformity system the causes of of the nervous two reasons. properly qualified upon
First, we think that he preliminary interrogation give basis his expert as an causes a in the child of pre- old mother. Moreover, further as judge trial caution, instructed the medi- this testimony against cal was not in itself evidence why prose- but some as defendant, evidence baby was born in a cutrix’s malformed condition.
Secondly, qualification have we held expert largely a witness as an left is matter within McElroy trial sound discretion of the court. v. State, (1922). S.W. No or obvious error abuse court’s in the record discretion is shown we Therefore, case. should not the court’s this disturb qualified finding Dr. Huffman as an subject. McElroy supra. this
Defendant also
inad
contends that this
speculative.
highly
This Court has
missible
always
expert medical
must
more
held that
be
speculative in nature,
less
but that this does not mean
Lewis,
that it is inadmissible. Patterson
Co. v.
Transfer
In Ms multi-volnme treatise problem Wigmore of the admis- addressed himself to testimony. expert probative sibility He value of said: scope every
“The data of enormous science are variety. per- professional can know from one man No fraction more minute sonal observation every day working treat as truths. data he must which reported of fellow- data Hence, a reliance reports perusing* their in books learned scientists, journals, accept tMs kind law must and does knowledge (italics ours). 2 men” from scientific 1940). (3rd Wigmore, Evidence, Ed., Sec. 665b is It also contended this evidence is inad prejudicial alleged ground to missible that it not this medical defendant. do think that We prejudicial it relevant defendant, but even if were, simply because made inadmissible is not might prejudicial. be argued irrele can it be this evidence was
Nor proba inadmissible for lack therefore, and, vant, statutory being a the essential offense, tive value. Incest, necessary the crime are found elements constitute we that the essence There, sec. 39-705. find T.C.A. marriage sexual intercourse with relative offense is consanguinity. prohibited line of within opinion concerning Huffman’s medical children born to sixteen causes because it circum relevant was, therefore, mothers prose to show that the evidence which tended stantial relationship. entered into incestuous cutrix to the issues is relevant evidence which Furthermore, might merely involved not made irrelevant prejudicial. be Frost
S.W.2d Finally, opinion given think we that the *6 probative Huffman had and after some value, jury upon proper left instruc admitted, was sufficiency. weight tions determine its "Wefurther think the evidence of the if believed jury, more sufficient to convict defendant under apparently T.C.A. sec. 39-705. The believed being the con- there ho error on the record, below be affirmed. viction must
On Petition Rehear petition complaining Defendant has filed to rehear assignment overruling that we erred in his one error. points petition out no matter of law or fact The over- presents argu- authority, and new looked, cites no new no fully already reargument ment. It is but a matters former considered determined this Court our opinion. petition denied at the is, therefore, The cost petitioner. Rule 32. denied.
Petition