McKee v. People
| Decision Date | 07 February 1921 |
| Docket Number | 9976. |
| Citation | 195 P. 649,69 Colo. 580 |
| Parties | McKEE v. PEOPLE. |
| Court | Colorado Supreme Court |
Error to District Court, Yuma County; L. C. Stephenson, Judge.
Artie S. McKee was convicted of murder in the first degree, and he brings error.
Reversed.
Edwin H. Park, of Denver, and M. M. Bulkeley, of Wray, for plaintiff in error.
Victor E. Keyes, Atty. Gen., and Charles H. Sherrick, Asst. Atty Gen., for the People.
Plaintiff in error was found guilty of first degree murder upon an information charging him with the murder of his wife on or about the 5th of April, 1920.
The principal grounds of reversal argued are that the court abused its discretion in permitting evidence as to a wound received by the deceased about February 13, 1920, before evidence was offered to establish a corpus delicti, and that it erred in permitting the state, upon cross-examination of Dr. Bennett, a witness in behalf of defendant, after asking him whether or not he knew two men by the name of Richards to put the following question to him:
Objection to the question was overruled, and the defendant answered in the negative.
Thereafter the two persons mentioned were called by the state in rebuttal, and testified that Dr. Bennett had stated to them his belief in defendant's guilt.
Upon direct examination Dr. Bennett had testified that he was a physician and surgeon, and that he had been called upon to examine over 100 cases of death by violence. In a hypothetical question, based upon the evidence as to the wound of February 13th, he was asked what, in his opinion would be the after effects of such wound. In another hypothetical question, based upon the evidence as to the condition of the body of the deceased when found, and during some time thereafter, he was asked at what time, in his opinion, the shot had been fired, if it killed the person before 5 o'clock in the afternoon, the time at which the body was discovered. He was then asked some questions in regard to the time that rigor mortis might be expected to set in, how long blood would be likely to flow, and how long it would be before the body would become cold, under the conditions shown in evidence.
The witness had made no reference to any findings he had made during his investigation, nor had he given any expression of opinion upon matters other than those above stated.
The question propounded to him, then, could in no sense be used as a basis for impeachment. It was not proper cross-examination, and was collateral to the issue. That being so, the state was bound by his denial.
The question of defendant's guilt was the very matter which the jurors were to pass upon, and they were to determine it from evidence of facts and circumstances bearing upon that issue. The opinion of no person as to defendant's guilt was competent evidence. The facts to which Dr. Bennett had testified were proper for the consideration of the jury. They were not such matters as are within the knowledge of people generally, and he was therefore produced as an expert, with special knowledge of the subjects under consideration, to testify concerning them, to enable the jurors to draw proper conclusions from the special circumstances in evidence. Dr. Bennett's opinion as to what conclusions should be drawn from other facts, which could be determined by the jury as well as by himself, was of no consequence, and not proper for the jury to consider.
In Askew v. People, 23 Colo. 446, 48 P. 524, the court quotes with approval from Wharton's Criminal Evidence, § 484, as follows:
'The test of whether a fact inquired of...
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