State v. Barrett

• Decision Date: 24 October 1898
• Citation: 33 Or. 194,54 P. 807
• Parties: STATE v. BARRETT.
• Court: Oregon Supreme Court

54 P. 807

33 Or. 194

STATE v. BARRETT.

Supreme Court of Oregon

October 24, 1898

Appeal from circuit court, Multnomah county; M.C. George, Judge.

George Barrett was convicted of manslaughter, and he appeals. Reversed.

W.T Hume, for appellant.

C.M Idleman, Atty. Gen., Russell E. Sewall, Dist. Atty., and R.R Giltner, Deputy Dist. Atty., for the State.

BEAN J.

The defendant was convicted of the crime of manslaughter, for shooting and killing one Williams in a saloon conducted by himself and one Levison, and brings this appeal to reverse the judgment. The following statement of the facts will suffice to explain the alleged errors: On the morning of the homicide, in response to a summons by telephone Capt. Stapleton, of the police force, accompanied by an officer, went to the saloon indicated, and there found the defendant, who told Stapleton that he had shot a man, and that his body was then in a back room of the saloon. Stapleton, accompanied by the defendant, went into the room referred to, where they found the body of the deceased stretched out at full length on its back on the floor, in front of the door; the feet about 12 or 15 inches apart; the hands and arms thrown out on either side about 18 or 20 inches from the body; and between the right arm and body a Colt's revolver was lying on the floor. After describing the situation and appearance of the body, and the condition in which he found the room, and testifying that he had seen the bodies of two or three persons in the position in which they had fallen after having been shot, Stapleton was permitted, over the defendant's objection and exception, to testify that in his opinion the body of the deceased, at the time he first saw it, did not lie in the position in which it fell when the fatal wound was inflicted; and this ruling is assigned as error. That the admission of this evidence was error can hardly admit of serious doubt. The witness Stapleton was not an expert, if, indeed, the subject was one upon which an expert could have testified. The fact that he had previously seen the bodies of two or three persons after they had been shot would not make him such. Rash v. State, 61 Ala. 89. And the question was not a matter upon which the opinion of a nonexpert is admissible. As a general rule, a witness must testify to facts, and not conclusions or opinions. It is the duty of the jury, and not the witness, to draw inferences from the evidence, and form opinions from the facts presented. The cases in which the opinions of witnesses are allowed constitute exceptions to this rule, founded on the ground of necessity, because the facts cannot be presented or depicted to the jury precisely as they appeared to the witness, and it is impracticable, from the nature of the subject, for him to relate the facts without supplementing their description with his conclusions. First Nat. Bank v. Fire Ass'n of Philadelphia (Or.) 53 P. 8. Such are questions as to the identity of persons or things; the age, health, physical condition, and appearance of a person; the lapse of time; the dimensions and quantities of things; and many other instances in which it is impossible to detail the facts without the use of language which necessarily implies the conclusion or opinion of the witness. Lawson, Exp. Ev. 46; Rog. Exp. Test. 6; Hackett v. Railway Co., 35 N.H. 390; Parker v. Steamboat Co., 109 Mass. 449; Com. v. Dorsey, 103 Mass. 412. But the books all agree that such opinion evidence is never admissible if all the pertinent facts can be sufficiently described and detailed to the jury so as to enable it to draw its own inferences and conclusions therefrom. 7 Am. & Eng.Enc.Law, 493, and cases there cited; Graham v. Pennsylvania Co. (Pa.Sup.) 21 A. 151; Indemnity Co. v. Dorgan, 7 C.C.A. 581, 58 F. 945. And this case comes clearly within the latter rule. The case of Indemnity Co. v. Dorgan, supra (an action on an insurance policy) is very much in point. The dead body of the assured was found lying in a brook, with the face downward, and submerged in six inches of water; and the defense was that he died from disease, and not accident. On the trial the court refused to permit the company to ask of the witness who found the body in the water: "If he had been standing, in your judgment would it have been possible for him to have fallen in the water, in the position in which you found him?" This ruling was sustained by the court of appeals; Mr. Justice Taft saying the question "asked for an opinion of the witness on facts which it was quite possible for the witness to have detailed to the jury, so that the jury might have drawn its own inference. That there are cases where the judgment of a witness as to distance and other circumstances may be directly asked him, is true, but such questions are not permissible when it is practicable to draw out with exactness the data upon which such judgment must be founded." So, also, in the case at bar there was no difficulty whatever in sufficiently describing the situation and position of the body of the deceased, and the condition of the room in which it was found, to enable the jury to draw its own inference as to whether the body had been moved after having fallen from the effects of the fatal wound, and there was no necessity for supplementing such description by the opinion of the witness upon that question. It was therefore error to permit it to be given, and in view of the fact that the contention of the state throughout the trial was that the homicide occurred in the barroom of the saloon, and that the body had been carried by the defendant and his friends to the back room, and placed in the position in which Stapleton found it before they telephoned for the police, the error cannot be said to have been harmless. The question as to whether the body of the deceased had been moved after the homicide was a very important, if not a vital, question in the case; and it was mischievous error, therefore, to permit the state to throw the weight of the opinion of a witness, and especially one of the standing and character of Stapleton, in favor of its theory. The jurors should have been left to draw their own inferences and conclusions upon this question from the evidence, uninfluenced or unbiased by the opinions of others. For this reason the judgment of the court below must be reversed, and a new trial ordered. But as there are other questions in the case, which may arise on another trial, it is thought proper to notice them briefly at this time.

The objection that the court erred in not directing a verdict of not guilty, and in instructing the jury that they might convict the defendant of either murder in the first or second degrees, or manslaughter, is not well taken.

The district attorney having closed the case for the state without calling any of...