Commonwealth v. Johnson

• Decision Date: 05 January 1920
• Docket Number: 335
• Citation: 265 Pa. 491,109 A. 218
• Parties: Commonwealth v. Johnson, Appellant
• Court: Pennsylvania Supreme Court

109 A. 218

265 Pa. 491

Commonwealth v. Johnson, Appellant

No. 335

Supreme Court of Pennsylvania

January 5, 1920

Argued September 29, 1919

Appeal, No. 335, Jan. T., 1919, by defendant, from judgment of O. & T. Erie Co., Feb. T., 1919, No. 40, on verdict of guilty of murder of the first degree in case of Commonwealth v. William Johnson et al. Affirmed.

Indictment for murder. Before ROSSITER, P.J.

Verdict of guilty of murder of the first degree upon which judgment of sentence was passed. Defendant appealed.

Errors assigned were various rulings on evidence and instructions sufficiently set forth in the opinion of the court.

The assignments of error are overruled, the judgment is affirmed and it is directed that the record be remitted for the purpose of execution.

S. Y Rossiter, with him H. Bedford Duff, for appellant.

Robert H. Firman, District Attorney, with him M. Levant Davis, for appellee.

Before BROWN, C.J., STEWART, FRAZER, WALLING, SIMPSON and KEPHART, JJ.

OPINION

MR. JUSTICE KEPHART:

The appellant, convicted of felonious homicide, complains of the erroneous reception of evidence, and misstatements of and prejudicial comment on the evidence by the court in its charge to the jury. A part of the testimony of the coroner was objected to for the reason that he had not qualified as an expert witness. The competency of the witness was a primary question for the court. This should have been made to appear and been passed upon by the court before the witness was permitted to express any opinion. But the knowledge and experience of the witness, or his competency, may appear otherwise than by direct inquiry into that matter. In the present case the coroner was a physician, and, before the question here objected to was asked, had described the wound on the deceased's body and the bones broken by the blow. He stated, without objection, that the wound was produced by a blunt instrument and had been inflicted for some time probably a number of hours, before death, and had given his reasons therefor, which were the technical reasons of a physician or surgeon. He described the condition of the brain with relation to the external matter collected therein and its effect. After he had thus testified, he was asked whether he found any other evidence that would lead him to believe the injury causing the death of the deceased had been inflicted for some length of time, to which he replied: "There was not so very much blood in the body. The body had bled a good deal; and it must have been bleeding from a small place, because that was the only place it had to bleed from." This question scarcely called for the expression of an opinion, but even if we assume that his belief was merely an impression formed from the condition in which he found the body, there was, nevertheless, sufficient prior testimony from this witness to admit the answer as the opinion of an expert. Moreover, the witness was subjected to a searching cross-examination by appellant's counsel on all technical matters pertaining to the injury and its probable effect, and had the former not been a physician of some ability it would have been readily perceived as a result of such examination. While the competency of the witness should first appear before he is permitted to express an opinion, and the general practice is to interrogate him on this subject before his testimony is received, yet when the opposing party knows that a witness is about to give testimony which should come from an expert, and specifically objects on that ground, he should exercise his right to cross-examine as to the qualifications of the witness. If he does not do so, he can not be heard to complain. If the right is denied him, it would in a material matter place...