34 S.C. 136 | S.C. | 1891
The opinion of the court was delivered by
Under an indictment for the murder of Jasper Craig, the appellant was convicted of manslaughter
It appeared that in an altercation between these parties, which took place in the yard of the deceased about dark in the evening, the deceased received a mortal wound inflicted by a knife, and was soon after carried into his house, where he died some time near the middle of the next day. One witness, the son of the deceased, testified that he saw the prisoner strike the mortal blow, while other by-standers testified that they did not see prisoner strike any blow, but that they saw or heard deceased bill. All the parties were drinking, more or less, and the defence was that the deceased, being much under the influence of liquor, in striking at the prisoner fell upon his own knife, and thus received the mortal wound.
The first, second, and third grounds of appeal impute error to the Circuit Judge in his rulings as to the admissibility of certain testimony, while the fourth ground, which has very properly been abandoned, as it manifestly could not be sustained, complains of error in the charge to the jury. The testimony alleged to have been erroneously admitted by the first and second grounds of appeal, was as to what passed between the deceased and the prisoner, shortly after the wound had been inflicted, and after deceased had been carried into his house, and the prisoner had been brought in. When this testimony was first offered, the judge, conceiving that the proper foundation had not then been laid for the admission of such testimony as a dying declaration, declined to receive it as such, but ruled that it was competent as a conversation between the deceased and the prisoner; and it is to this ruling that exception is taken by the first ground of appeal. Afterwards, however, when the Circuit Judge considered that a proper foundation had been laid, he ruled such testimony competent as a dying declaration ; and to this ruling the second ground of appeal is directed.
Next, was the declarant so fully aware of his condition as to be without hope of life ? The language of the declaration itself shows this — -“Angus has killed me.” State v. Quick, 15 Rich., 319. But in addition to this, he -not only expressed no hope of living, but said “that he had to die, that Angus had killed him.” State v. McEvoy, 9 S. C., 212. The fact that the attending physician says, in his testimony, that, after examining the wound, he did not think it would be “necessarily fatal — didn’t think he would die,” cannot affect this question, unless it had appeared that he had expressed such opinion to the deceased. The deceased manifestly believed that he was about to die of that wound, and it does not appear that the doctor either said or did anything calculated to remove or even shake that belief. As to the third requirement of the rule, it is too clear for argument that it wms fully met. It is clear, therefore, that there was no error in admitting the testimony in question as the dying declaration of the deceased as to who killed him, on the trial of a case for the murder of deceased.
In 7 Am. & Eng. Encycl. Law, 491, it is said: “Expert evidence is that given by one specially skilled in the subject to which it is applicable, concerning information beyond the range of ordinary observation and .intelligence.” And again, on the same page of that very valuable and useful compendium of the law, it is said : “An expert is one who has made the subject upon which he gives his opinion a matter of particular study, practice, or observation, and he must have a particular and special knowledge on the subject.” Now, however expert and skilful Dr. Wyman may be as a surgeon, and however competent he may be to express an opinion upon a subject involving a knowledge of anatomy, we can hardly suppose that either he, or any one for him, would claim that he had ever given the subject inquired about any special study, practice, or observation, or that he had any special knowledge'on the subject. On the contrary, we would suppose that any intelligent person of ordinary experience would be quite as competent to express an opinion as to whether, under a given state of facts, it would be probable or possible for Craig to have inflicted the wound from which he died by falling upon his own knife, as the most learned and experienced surgeon could be. The question, therefore, was calculated to elicit an opinion from the witness as to a matter involving no special
The judgment of this court is, that the judgment of the Circuit Court be affirmed.