Spence v. Territory of Arizona

• Decision Date: 02 April 1910
• Docket Number: Criminal 276
• Citation: 108 P. 227,13 Ariz. 20
• Parties: FRANK SPENCE, Defendant and Appellant, v. TERRITORY OF ARIZONA, Respondent
• Court: Arizona Supreme Court

108 P. 227

13 Ariz. 20

FRANK SPENCE, Defendant and Appellant, v. TERRITORY OF ARIZONA, Respondent

Criminal No. 276

Supreme Court of Arizona

April 2, 1910

APPEAL from a judgment of the District Court of the Fourth Judicial District, in and for the County of Yavapai. Richard E. Sloan Judge. Affirmed.

The facts are stated in the opinion.

R. P Talbot and A. L. Hammond, for Appellant.

A witness who was not skilled in the science of surgery or medicine, but who had seen about a dozen gunshot wounds and the same number of cuts on the body, could not lawfully testify as an expert. Caleb v. State, 39 Miss. 721. Mere opportunity afforded for observation will not constitute one an expert or render his mere opinion admissible as evidence. Goldstein v. Black, 50 Cal. 462; People v. Lemperle, 94 Cal. 45, 29 P. 709; People v Phelan, 123 Cal. 566, 56 P. 424. "Where, owing to the insufficient character of the direct evidence, the experts become the witnesses on whose testimony the whole case rests any error in admitting expert opinion becomes fatal error." People v. Millard, 53 Mich. 63, 18 N.W. 562. "The burden of proof rests upon the prosecution, and if upon the whole evidence, including that of the defendant as well as the prosecution, the jury entertains a reasonable doubt of the guilt of the accused, he is entitled to the benefit of the doubt, and it is error to charge that, when the prosecution has made out a prima facie case and evidence has been introduced to show a defense, they must convict unless they are satisfied of the truth of the defense." Anderson v. Territory, 9 Ariz. 50, 76 P. 636; Greene v. White, 37 N.Y. 407; Graves v. People, 18 Colo. 170, 32 P. 63; Ritchey v. People, 23 Colo. 314, 47 P. 272, 384; McNamara v. People, 24 Colo. 61, 48 P. 541.

John B. Wright, Attorney General, for Respondent.

OPINION

CAMPBELL, J.

-- Appellant was convicted of the crime of murder, and appeals.

The testimony on the part of the prosecution shows that Spence, the appellant, and Edgar R. Sullivan lived upon a small ranch, some four miles from the city of Prescott. On October 22, 1908, Spence appeared at the sheriff's office in Prescott, and stated that he had killed Sullivan at the ranch, that he had shot him while Sullivan was attacking him with a knife, and that the killing was done in self-defense. A coroner's jury was impaneled and went to the ranch, where the body of Sullivan was found lying face downward upon the floor of the cabin in which the men had lived. His left arm was under his body and his left leg under the right. The right arm was extended, the hand closed and resting upon, but not grasping, a knife. The upper part of the face was covered with ashes, and the eyebrows and hair had been singed by fire. There was a bullet wound near the left eye and another in the back of the head. The wound in front was much the larger of the two, being sufficiently large, as described by the witnesses, to permit the insertion of three fingers. The bones surrounding it were crushed and extended outward. The wound at the back of the head is described as having been a small round hole, the flesh being drawn inward. Several persons who examined the body were permitted to describe the wounds, and, after testifying that they were sufficiently familiar with gunshot wounds to enable them intelligently to form opinions as to which of the wounds upon Sullivan's head was made by the entrance of the bullet and which by the exit, were permitted to testify that in their opinions the bullet entered at the back and came out near the eye. Before so testifying, each testified to some familiarity with the character of wounds made by the entrance and exit of bullets; that they had hunted and killed large animals, and had observed the character of the wounds inflicted by the bullets upon entering and leaving the bodies of animals.

Appellant assigns as error the ruling of the trial court permitting these witnesses so to express their opinions. It is contended that the witnesses were not experts, and should not have been permitted to testify. It is true that they were not experts in the sense that they were possessed of scientific or technical knowledge of the subject concerning which they expressed their opinions, but they were possessed of information that undoubtedly was useful to the jury. They did not testify as experts, but merely stated conclusions of fact derived from their observations. In Hopt v. Utah, 120 U.S. 430, 7 S.Ct. 614, 30 L.Ed. 708, a witness was permitted to give his opinion as to the direction from which a blow was delivered, after he had stated that his examination of the body had enabled him to form an intelligent opinion upon that point. The court say: "The opinions of witnesses are constantly taken as to the result of their observations on a great variety of subjects. All that is required in such cases is that the witnesses should be able to properly make the observations the result of which they give, and the confidence bestowed on their conclusions will depend upon the extent and completeness of their examination and the ability with which it is made. . . . It was a conclusion of fact which he would naturally draw from the examination of the wound. It was not expert testimony in the strict sense of the term, but a statement of a conclusion of fact such as men who use their senses constantly draw from...