State v. Davis

Jun 22, 1899
Reporters:
, ,
Before:
McIver

The opinion of the Court was delivered by

Mr. Chief Justice McIver.

Under an indictment for murder, the jury rendered a verdict of guilty with a recom-’ mendation to mercy, whereupon the defendant was sentenced to be confinеd in the penitentiary at hard labor for the term of his natural life.

*3401 2 3 *339From this judgment defendant appeals, taking the four *340exceptions set out in the record, which, however, raise but two questions for the determination of this Court. The first, second and third exceptions all rest upon the same ground, and may, therefore, be considered together. They all impute errоr to the Circuit Judge in receiving the testimony of T. B. Me White, J. W. Baker and J. B. Earle, as to the condition of the gun found lying near the body of the deceased, and the еmpty shell in the gun, and whether they exhibited such appearances as would indicate that the gun had been recently fired. The objection seems to be based mainly upon the ground that it should first have been made to appear that these three witnesses, the inadmissibility of whose testimony is claimed in excеptions one, two and three, respectively, were experts, before they were entitled to express any opinion upon the subject inquired about. It may be as well to state here that the record before us does not show that any objection was made to the testimony of an}^ ‍​‌​‌‌​‌​‌​‌​‌​​‌‌‌​​‌‌‌​​‌​​​​​​​​​​‌​‌‌​‌​​‌​​‌‍of these witnеsses except the first, Mr. McVYhite, or that any exception was taken except in that instance. But as counsel may have supposed (erroneously, as we think,) that, after the objection taken to the testimony of the first witness was overruled, it was unnecessary to repeat the objection when thе other two witnesses were offered to testify to the same thing, we will not make any point as to that matter, in a case of such gravity as this is, but will assume for the purposes of this case only, that similar objections were made to the testimony of the other two witnesses, and similar exceptions taken to the rulings thеreon. It is a mistake to- suppose that there was no testimony tending to show that these witnesses were experts in regard to the matter about which they were permitted to testify. It is not necessary that one should be a scientist in order to qualify him to testify as an expert. As-is said in the authority cited by the assistant attorney general — 7 Am. & Eng. Ency. of Law, 1st. ed., 491: “An expert is one who has made the subject upon which he gives his opinion a matter of particular study, practicе or observation, and he must *341have a particular and special knowledge on the subject.” Indeed, ‍​‌​‌‌​‌​‌​‌​‌​​‌‌‌​​‌‌‌​​‌​​​​​​​​​​‌​‌‌​‌​​‌​​‌‍the derivation of the term “expert” implies thаt he-is one who, by experience, has acquired special or peculiar knowledge of the subject of which he undertakes to- testify, and it does not matter whether suсh knowledge has been acquired by the study of scientific works or by practical observation. Hence, one who is an old hunter, and has thus had much experience in the use of firearms, may be as well qualified to testify as to the appearance which a gun recently fired would present, as a highly educated and skilled gunsmith. Now all these witnesses testified that they were accustomed to the use of firearms, and had observed the appearancе which a gun would present after having been recently fired, and the substance of their testimony was to the effect that neither the gun found lying near the dead bоdy shortly after the homicide was committed, nor the empty shell taken from the gun, presented any of the appearances that would indicate thаt the gun had been recently fired. It seems to us that the testimony in question was clearly competent. But in addition to this it was held in Seibels v. Blackwell, McM., 56, that the opinions of even non-expert witnesses may, sometimes, be received, after they had stated the facts upon which they based their opinions. In that case, the question was as to the unsoundness of a slave, and O’Neall, J., in delivering the opinion of the Court, uses this language: “I find that the witnesses generally said they thought the slave to be unsоund, and if they had stopped ‍​‌​‌‌​‌​‌​‌​‌​​‌‌‌​​‌‌‌​​‌​​​​​​​​​​‌​‌‌​‌​​‌​​‌‍there, such testimony ought to have been rejected; but they go on to fortify their opinions with facts showing some foundation for them; and hence they were admissible, and were to be compared with the facts by the jury.” So in this case the witnesses stated the facts showing the reason why they thought the gun had not been recently fired. The first, second and third exceptions must be overruled.

*3424 *341The only remaining exception is the fourth, in which error is imputed to the Circuit Judge in receiving the testimony as to certain tracks seen going to and from the body of the *342deceased towards the house of the defendant. As to this exception it may be said that, inasmuch as it was admitted by the defendant while on the stand that he had killed the deceased, claiming, however, that the deceased had fired upon him. and that he acted in self-defense, it would seem to be unimportant whether the testimony objected to was competent or not, as testimony in regard to tracks is most usually resorted to for the purpose of connecting the accused with the commission of the homicide, and as the fact of killing is, in this case, conceded, even if there was error in receiving the testimony as to the tracks, it would be harmless error. But there is one view of the testimony as to the tracks which might make it very material to the defendant’s plea of self-defense. The version of the tragedy as given by the defendant while on the stand as a witness was that while gathering corn in his field for the purpose of feeding his hogs, he was fired upon by the deceased, and that he simply returned the fire, killing his antagonist. The fact that a gun containing an empty shell ‍​‌​‌‌​‌​‌​‌​‌​​‌‌‌​​‌‌‌​​‌​​​​​​​​​​‌​‌‌​‌​​‌​​‌‍was found lying near the body of the deceased, a short time aftеr the homicide was committed, was, no doubt, relied upon to corroborate the story of the prisoner. There was testimony, however, which was not disputed, that this gun belonged to a brother of the defendant, who lived‘in the same house with him; and we can readily conceive that the contention on the рart of the State was that the prisoner, after committing the homicide, went to his house, procured the gun, and laid it near the body. Hence, in this aspeсt of the case, the testimony as to the tracks going to and from the dead body to the house of the prisoner, might become very important. We will, therefore, consider the question as to the competency of the testimony as to the tracks.’ It will be observed that the witness expressed no opiniоn that the tracks which he examined and followed, were the tracks of the prisoner. He simply described the tracks which he observed — spoke of a peculiarity as to the track of the right foot, which showed marks of tacks in the sole of the right shoe — that he measured the *343tracks and afterwards measured the prisoner’s shoes, and produced those measures before the jury, and that the right shoe of the prisoner had tacks in the sole which made mаrks corresponding with the marks he had observed in the tracks going to and from the dead body towards the prisoner’s house. This testimony was clearly competent. See State v. Green, 40 S. C., 328, where Mr. Justice Pope, in delivering the opinion of the Court, uses this language: “It was clearly competent for him (the witness) to trace minutely before the jury the peculiarities of the foot of the accused, and also how these peculiarities were reproduced ‍​‌​‌‌​‌​‌​‌​‌​​‌‌‌​​‌‌‌​​‌​​​​​​​​​​‌​‌‌​‌​​‌​​‌‍in the track thе witness saw,” but he should not have been permitted to go further and express the opinion that the track was made by the accused. It seems to us, therefore, that in any view which may be taken of the fourth exception, it must be overruled.

The judgment of this Court is that the judgment of the Circuit Court be affirmed.