Commonwealth v. Leach

• Decision Date: 27 February 1892
• Citation: 30 N.E. 163,156 Mass. 99
• Parties: COMMONWEALTH v. LEACH et ux.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

156 Mass. 99

30 N.E. 163

COMMONWEALTH v. LEACH et ux.

Supreme Judicial Court of Massachusetts, Middlesex.

February 27, 1892

COUNSEL

H.D. Hadlock, for defendant.

A.E Pillsbury, Atty. Gen., and G.C. Travis, Asst. Atty. Gen., for the Commonwealth.

OPINION

ALLEN J.

1. The motion to quash was rightly overruled. The three counts are in the usual and proper form, and they are properly joined the offenses described in them being similar in their nature mode of trial, and punishment. Com. v. Jacobs, 152 Mass. 276, 281, 25 N.E. 463.

2. The testimony as to the declarations of the deceased in regard to her health and condition was rightly excluded. The defendants were allowed to prove exclamations and expressions indicating present pain, as distinguished from mere narration, and the evidence which was excluded was nothing more than her declarations and statements, not made to a physician for the purpose of treatment. Bacon v. Charlton, 7 Cush. 581, 586; Barber v. Merriam, 11 Allen, 322, 324; Roosa v. Loan Co., 132 Mass. 439.

3. The testimony that the deceased had refused to see her sisters on one occasion, many months before, with nothing to show the reason or circumstances of her refusal, was also rightly excluded. The court allowed the defendants to put in evidence anything to show that the relations between her and her sisters were not friendly, and anything that she said to her sisters.

4. The defendants' third request for an instruction to the jury was rightly refused. In order to convict on circumstantial evidence, it is not necessary to show that it was not in the power of any other person than the defendants to commit the crime. It is enough if it is proved beyond a reasonable doubt that the defendants committed it. So far as the other requests contained correct propositions of law, they were covered by the instructions given.

5. The exclusion of the testimony of the defendants' witness Hadley, in the opinion of a majority of the court, was erroneous. It was material at the trial for the government to show that the act which caused death was not done by the deceased herself, but was done by the defendants or one of them. The theory of the government was that the death was caused by the introduction of a sea-tangled tent into the uterus, and the government offered evidence of physicians tending to prove that it was impossible for the deceased to have inserted the tent herself, and that it would be impossible for a woman, unaided, to insert a tent into her own uterus. This being a matter outside of the range of common knowledge, the government might properly call expert witnesses to testify to their opinion. No valid objection was open to such evidence, and no objection was made. Had the physicians testified merely that in their opinion the deceased could not have done this thing herself, such opinion might have rested on reasons applicable only to that particular woman; but they went further, and made their testimony applicable to all women, or at least to women in general. The question then arises, how may such testimony be met? When an expert witness testifies to a matter of opinion, it has often been declared that it is competent for him to give the reasons upon which his opinion is founded, and to state that it is the result of observations and experiments, in order to confirm his testimony. Lincoln v. Copper Co., 9 Allen, 181, 191, 192; Williams v. Taunton, 125 Mass. 34, 40; Eidt v. Cutter, 127 Mass. 522; Emerson v. Gas-Light Co., 6 Allen, 146; Sullivan v. Com., 93 Pa.St. 284, 296; Boyd v. State, 14 Lea, 161, 169-174; Smith v. State, 2 Ohio St. 513. If other experts are called on the other side, and testify to a contrary opinion, the same rule would allow them to state that their opinion also was the result of observation and experiments. But where the testimony to be met is the opinion of expert witnesses that it is impossible in the nature of things for a particular thing to be done, it is not necessary to rely on expert opinions to the contrary, if it can be shown as a matter of fact that the thing has been done. If, for example, expert witnesses were to testify that it would be impossible to propel a vessel by steam across the Atlantic ocean, or to navigate the air with balloons or flying-machines, or to propel cars by electricity, or to communicate with other persons at a long distance away by telegraph, or by spoken words, or to store up sounds in a machine or instrument so that long afterwards they could be reproduced, or to render one temporarily insensible to pain by anesthetics, it would not be necessary in reply to call other experts to give opinions to the contrary. The direct facts might be testified to by any person who knew them. It was held in Cottrill v. Myrick, 12 Me. 222, that one familiar with fish might testify to his opinion as to the ability of fish to overcome particular obstructions in rivers. If such a witness were to testify that in his opinion salmon could not overleap certain dams or falls, can it be doubted that one who had seen them do it might be called in reply to testify to the fact? In Reeve v. Dennett, 145 Mass. 23, 11 N.E. 938, the plaintiff's evidence tended to show that a certain compound was worthless for the purpose of allaying pain in filling teeth, and it was held competent to meet this evidence by calling witnesses to testify that operations upon their own teeth, when this compound was used, were practically painless. In the trial of Palmer, evidence tending to show that strychnine could not be discovered in a body after death was met without objection by evidence that it had been done; and the experiments were stated. The principal objections which are suggested to the testimony offered by the defendants in the present case are that it would have introduced another issue than the one immediately on trial, and would have called upon the government to meet statements of facts which it could not have anticipated. The answer is that the government itself presented the issue that no woman could have done this thing herself, and that the defendants, by the testimony which they offered in reply, introduced no new or collateral issue, but merely sought to meet the issue tendered by the government. Such testimony is relevant, because the government has made it so. It tends to negative the theory of the government on a material point. It is stated in Steph.Dig.Ev. art. 50, that, where the opinion of an expert is deemed to be relevant to the issue, facts inconsistent with such opinion become relevant also. Without extending the decision beyond what is involved in the particular case before us, we are of opinion that, where witnesses who are qualified as experts have been called by the government, and have been allowed to testify in chief that, in their opinion, it is impossible for anybody to do a particular thing, and where this opinion is upon a matter material to the issue on trial, their testimony may be met by calling witnesses in defense to testify that to their own knowledge as a matter...