Cooper v. State

• Decision Date: 01 January 1859
• Citation: 23 Tex. 331
• Parties: HUGH COOPER v. THE STATE.
• Court: Texas Supreme Court

23 Tex. 331

HUGH COOPER

v.THE STATE.

Supreme Court of Texas.

1859.

Where the jury are as competent as any other persons to deduce the proper conclusions from a given state of facts, the opinions even of scientific witnesses are not admissible in evidence as to the conclusion or inference to be drawn from them.

There are exceptions to the general rule that witnesses must speak alone as to facts. See the opinion in this case for what is said on this point.

Where it appears that illegal testimony may have controlled the verdict of the jury, and indeed, has been rendered prominent by the assumption in the charge of the court, that the evidence was proper, and ought to be weighed by them, it is impossible to say that the verdict was not influenced by such improper testimony, and the judgment will be reversed. Post, 597; 30 Tex. 284.

APPEAL from Navarro. Tried below before the Hon. Reuben A. Reeves.

This was an indictment for the murder of Benjamin J. Fortson, alleged to have been committed on the 17th day of September, 1855, by shooting with a doubled barreled shot gun, loaded with leaden bullets. This case was previously before the court (see 19 Tex. 449), and the judgment was then reversed and the cause remanded.

Fortson and the defendant, on the night on which the former was killed, went together fire-hunting, for deer. The defendant gave the first information of Fortson's death, by awakening Dr. Phillips and Mr. Hervey, and informing them of the fact. The statement then made by the defendant, and also those made on the succeeding morning, as detailed by the witnesses, in explanation of the manner and cause of the death of the deceased, were, that they had hunted over the ground intended; that the deceased had killed one deer, and crippled another; that after making some search for the latter in vain, they started home. That they were mounted on horseback, the defendant carrying on his horse the deer which had been killed; that when they reached a slough, the defendant was about twenty yards ahead of the deceased, when he heard a gun fire, and Fortson exclaimed, “Cooper, I am shot!” That Fortson fell, and the lamp he was carrying, was extinguished by the fall. That the defendant cut the deer loose, went back to Fortson, lighted the lamp, set it down by his head; he breathed about three times and died.

The witness, Slater, to whom the defendant made the foregoing statement, said, that when he and others reached the body, they found it at the spot designated by the defendant, lying in the road, as stated by him; they found the deer lying as had been described, and the lamp still burning.

The defendant in his statement said, that he did not see the man who shot the deceased, nor hear him retreat.

Cooper and Fortson were friendly, and frequently went fire-hunting together, and the defendant had been residing at the house of the deceased, for about one year preceding the defendant's death. The road where Fortson was shot, was plain and about ten feet wide, the ground was level, dry and hard, and on either side of the road there was a thicket, but denser on the one side than the other. There was a slight elevation of about five or six inches on one side of the road, and about fifteen feet from where Fortson's horse's tracks indicated that he had sprung (about ten feet from where the deceased fell).

The wound inflicted was in the back, to the right of the spinal column, the coat of the deceased was burned or crisped, where the load entered the body. Several witnesses stated, that the gun which was discharged at the deceased must have been very near him,--from two to twelve feet. No tracks or foot-prints were found near the roadside; but from the hardness of the ground, and the grass growing in the woods, tracks would not have left an impression. Some of the witnesses thought a man might, with difficulty, ride through the thicket; one of the witnesses thought otherwise. From the examination made of the ground, in the morning, it appeared, that Fortson's horse sprang straight forward, about ten feet from where the deceased lay; there appeared no other signs of any other horse having sprung forward. It was proved, that in fire-hunting, where the lamp is used, the person carrying it sits erect. The wound penetrated the body horizontally.

The district judge charged the jury, that, “where there is evidence of the manner and conduct of the party accused, or where he makes statements to others, recently after the offense, the jury may consider these circumstances, and the reasonableness and consistency of the statements, if any, in connection with the other facts in evidence, in arriving at a conclusion in the case. All these circumstances and statements, are to be taken and considered together, by the jury. On questions of skill, as also the position of different persons, their ability to accomplish a given object, and the mode and manner in which it was done, where the evidence makes it necessary for the jury to determine such questions; the opinion of professional men, in cases in which they are skilled; and the opinion of witnesses who may appear to be competent, on the other questions, from their acquaintance or knowledge of the facts; may be taken by the jury, in connection with the facts referred to; and from these the jury will arrive at a conclusion in the case, giving such weight to the evidence as the intelligence of the witnesses and other means of information may seem to require, and as may appear to be most in harmony with any known or established facts in such cases.”

The defendant was found guilty of murder in the first degree. The other facts appear from the opinion, so far as they need be stated.

S. C. Simmons & C. M. Winkler, for the appellant.

H. W. Sublett, also for the appellant.

Attorney General, for the appellee. One of the grounds upon which the appellant relies, for a reversal of this cause, is the only question presented in the bill of exceptions, to wit, that the district court permitted some of the witnesses to testify to their opinion, that the wound which resulted in the death of Fortson must have been inflicted by some person on horseback, or at some other elevation.

Although, as a rule, “a witness cannot be asked what his opinion upon a particular question is, yet, when matters of skill and judgment are involved, a person competent to give an opinion, may be asked what that opinion is.” Roscoe, Cr. Ev. 179; 2 Russell on Crimes, 924. Whether, under the circumstances of this particular case, it was allowable for a witness to give his opinion or judgment, is somewhat doubtful; but, it is believed, that the weight of authority will sustain the proposition, that where a witness has testified to the facts, he may give his opinion, based upon those facts. Morse v. The State, 6 Conn. 9, is a case in point.

The opinions expressed by the witnesses in this case, were based upon known physical laws of universal application, and the facts to which they themselves had deposed, and about all of which the jury were just as capable of forming an opinion, as the witnesses themselves. It is not at all probable, therefore, that the jury were influenced in the slightest degree by the opinions of the witnesses; for, if these opinions were in conflict with those which they themselves had formed, they had a right to, and doubtless did, reject them. But admitting, for the sake of the argument, the testimony to have been inadmissible, and calculated, standing alone, to produce an effect prejudicial to the cause of the accused; yet we find the testimony controlled, and any improper effect which it might have had, entirely obviated by the charge of the presiding judge, who, in effect, instructed them to attach no importance to the opinions of the witnesses, further than those opinions were in harmony with, and supported by, the facts proved.

But even if there should have been improper testimony admitted, this court will look to all the facts of the case; and if there was sufficient legal evidence to support the verdict, and justice has been done, the cause will not be reversed. Stiles v. Tilford, 10 Wend. 338;Prince v. Shepard, 9 Pick. 177; Landon v. Humphrey, 9 Conn. 209.

BELL, J.

One of the grounds of the motion for a new trial was, that the court erred in admitting evidence of persons not skilled in medical science, as to the probable range of a shot after entering the body, and the opinion of such witnesses, as to the relative positions of the deceased, and the person who shot him. One of the errors assigned is, that the court below erred in permitting any witness to give, in evidence, his opinion as to whether or not the person who shot the deceased, Fortson, was on horseback, or some other elevation. The record also contains a bill of exceptions, which shows that the defendant's counsel objected to the admissibility of the opinions of witnesses, as to the relative positions of the deceased and the party who shot him, when such testimony was offered during the trial, and that the objections were overruled by the court. The question, whether or not the court below erred in permitting the testimony referred to, to go to the jury, is thus very fully and properly presented to the consideration of this court.

Let us see what the testimony was. One of the witnesses, Slater, who is not a professional man, so far as is disclosed by the record, stated to the jury as follows: “I think the man who shot, must have been on a level with Fortson, and I do not believe that a man on the ground could have shot Fortson as he was shot.” Dr. Oakes, a physician, who assisted in the examination of the body of the deceased, said to the jury: “I think the man who shot must have been on horseback, or some other elevation.” Dr. Phillips, another physician, who also assisted in the examination of the body of the deceased, stated to the jury: “I do not think the person who shot Fortson, could have done so from the ground,...