Knoll v. State

• Decision Date: 10 May 1882
• Citation: 12 N.W. 369,55 Wis. 249
• Parties: KNOLL v. STATE OF WISCONSIN.
• Court: Wisconsin Supreme Court

55 Wis. 249

12 N.W. 369

KNOLL

v.STATE OF WISCONSIN.

Supreme Court of Wisconsin.

Filed May 10, 1882.

Error to circuit court, Outagamie county.

Hudd & Wigman, for plaintiff in error.

H. W. Chynoweth, Asst. Atty. Gen., and Wm. Kennedy, for defendant in error.

COLE, C. J.

The defendant, and plaintiff in error, was charged and tried for the crime of having wilfully and feloniously killed, with malice aforethought, one Charles Rohde on the fourth of March, 1879. The evidence ruled upon by the state to prove the accused guilty of the crime charged against him was mainly circumstantial. It appeared that the deceased had been in the employ of the defendant for a short time, and the weight of testimony tends to show that he was last seen alive in the early part of the evening of the third of March at the defendant's saloon. His body was found on the twenty-fifth of the same month in an unfrequented place in a swamp, about 40 rods south of a railway track, and about one-half mile south-west of the defendant's residence. There were four cuts or stabs on his left breast, and two on the front part of each leg between the knee and thigh. Medical witnesses, who made a post-mortem examination of the body, testified that there was a fracture of the skull on the right side of the forehead extending backward and downward to about the margin of the ear; that his bowels had been severely injured from blows; and that death was probably caused by the injury to the head and bowels combined. The theory of the prosecution was that the defendant had killed Rohde on the night of March 4th in his barn, and had then taken the body to the place where it was found for the purpose of concealing the crime.

Among other evidence given to sustain this theory the state produced as a witness one John Timmens, who lived very near the railroad, and who testified that about midnight, March 3d, he saw from the window of his house a man come along the track with a wheelbarrow and something in it. The witness described the wheelbarrow and the man. There was a wheelbarrow in the possession of the defendant answering this description, and the defendant in size was about such a man as witness saw. There were some blood and hair found upon the wheelbarrow which the defendant had. One Dr. Piper was sworn as a medical expert. He had made a microscopical examination of blood found on the barrow and on pieces of wood taken from the same; had examined pieces of cloth and hair,--hair taken from the skull of the deceased, and hair found on the wheelbarrow. This witness was permitted to state, against defendant's objection, that he had made a comparison of the hair found on the wheelbarrow and that taken from the skull, such comparison being founded on his experience, he having made, as he said, a very careful study of hair. He was asked to state, and did state under objection, the result of that comparison. He said that the hair was precisely the same in every respect, in length, magnitude, color, and in every other respect, so that any person could have told it as well as himself, and he added:

As the result of that comparison, I can say that it was from the head of the same person.”

We have detailed enough of the facts to show the very important bearing of this inculpatory testimony. One exception relied on for a reversal of the judgment is the admission of this testimony against the defendant's objection; and the question presented for decision is, was it competent and proper testimony under the circumstances? The objection to its admission is that the witness was permitted to state or give his opinion upon a vital fact in the case, which it was the province of the jury to determine from the evidence given. The witness said that the hair which he had examined found on the wheelbarrow and that taken from the skull of the deceased was from the head of the same person. The witness reached this conclusion, as we understand his testimony, not from any scientific tests or peculiarities in the structure of the hair which an examination by a microscope would disclose, but from the length, magnitude, and color, or those obvious marks and resemblances which one person of good vision would observe as readily as another. The comparison made required no peculiar skill nor scientific knowledge. It was no more in the province of an expert than of an ordinary person to make it. It related to a matter of common observation. The jury were as competent to make the comparison from the description given of the hair, and draw the conclusion whether it came from the head of the same person, as was the witness. The opinion of the witness as to the fact that the hair came from the head of the same person was not admissible on the ground that the inquiry related to a scientific subject--one which required peculiar knowledge or previous study and experience to give information about. But it related to a matter within the observation, judgment, and knowledge of any ordinary man; for the resemblances relied upon in making the comparison, as the length, magnitude, and color of the hair, were as open to the observation of the jury, or the jury could draw their inference from these resemblances as well, as any one. The witness, then, could not testify to his opinion on the ground that the subject-matter of the inquiry related to a scientific subject, and was expert testimony.

Is there any other principle upon which the testimony would be admissible? At first we had some doubt whether it should not be received on the ground that the witness was merely stating his opinion as to the identity of the hair, and that it was admissible upon the same principle as an opinion in respect to the value of property, or damage done to it, or the identity of a chattel or person, or facts of that nature. In regard to this class of facts a witness can only testify by using language which amounts to little more than giving his opinion about them. But this kind of evidence is admitted in that class of cases from necessity, because it is impossible, by any mere words of description, to give the jury a proper understanding of the facts. But, of course, the general rule is that a witness cannot...