71 Iowa 746 | Iowa | 1887
On the morning of the nineteenth of November, 1884, the dead body of Enoch Johnson was found on a public road near the village of Gifford, in Hardin county. The circumstances proven on the trial sustain the finding of the jury that his death was caused by injuries which had been inflicted on his person by another, and that the killing was felonious. There was also evidence which tended to prove that the crime was committed by this defendant and his brother, Prank Painsbarger. .But whether the evidence was sufficient to sustain the verdict of guilty against him, we will not determine on this appeal.
Under section 3636, any person of sufficient capacity to understand the obligations of an oath is a competent witness in any case, unless he is included in some of the exceptions created by other provisions. The exception created by section 3641, with reference to witnesses in criminal cases, is that neither the husband nor wife can be examined as a witness against the other, except in a prosecution for a crime committed by the one against the other; and that created by section 3642 makes the husband and wife incompetent witnesses to prove communications made by one to the other during the existence of the marriage relation. Very clearly, we think, the witness is not included in either of these exceptions. Her husband was not on trial, and her testimony was not against him, and she was not examined as to any communication made by him to her.
Mr. Lawson, in his work on Expert and Opinion Evidence, lays down the following as the rule on the subject established by the authorities. “The opinions of ordinary witnesses, derived from observation, are admissible in evidence, where, from the nature of the subject under investigation, no better evidence can be obtained, or the facts cannot otherwise be ' presented to the tribunal,” (Rule 63.) See, also, the cases cited in the note.
The present case falls within this rule. .Perhaps one of the most important matters to be considered in determining the manner in which the breaking of the wheel and shaft was accomplished, was the strength of the materials of which they were made, and it would be difficult, or impossible, by any mere verbal description, to give the jurors any definite
Exception is taken to other instructions given by- the court, and to other rulings on the admission and exclusion of testimony. Ye deem it unnecessary to specially notice the rulings complained of. They appear to us to be correct. For the error pointed out in the second paragraph of this opinion, the judgment must be Reversed.