State v. Simonis

• Decision Date: 15 July 1901
• Citation: 65 P. 595,39 Or. 111
• Parties: STATE v. SIMONIS.
• Court: Oregon Supreme Court

65 P. 595

39 Or. 111

STATE v. SIMONIS.

Supreme Court of Oregon

July 15, 1901

Appeal from circuit court, Union county; Robert Eakin, Judge.

Charles Edward Simonis was convicted of attempting to kill by means not constituting an assault, and he appeals. Reversed.

T.H Crawford, for appellant.

Saml. White, Dist. Atty., and J.C. Thomas, for the State.

BEAN C.J.

In October, 1900, an information was filed by the district attorney, charging the defendant with the crime of "attempting to kill by means not constituting an assault." The jury disagreed on his first trial, but on the second he was found guilty, and sentenced to the penitentiary for three years, from which judgment he appeals, assigning numerous errors, the most important of which are the admission in evidence of the testimony of Dr Merracle, and overruling defendant's motion, made at the close of plaintiff's testimony, and renewed after all the evidence was in, to direct a verdict of not guilty. As both assignments involve practically but one question, namely, the competency of the evidence of the physician, we shall confine our attention to that alone. The evidence for the state tended to show that on the 11th of June, 1900, the defendant gave Nora Smith, a young girl, about 14 years of age, two small paper packages, which he said contained complexion powders, requesting her to give the larger one to Miss Howell, and the other to Miss Wallace, whom she was on her way to visit, cautioning her to say nothing about the matter. On the next morning, as the three young ladies were going from the home of Miss Howell to a neighbor's, about two miles distant, and when within about half a mile of their destination, the Smith girl gave the packages to her companions, who immediately swallowed their contents. They remained about half an hour at the neighbor's, then started back, and when about half way the two girls became quite sick, but managed to reach home, when Dr. Merracle was called, who prescribed for them, and they finally recovered. The doctor was a witness for the state at the first trial but, as he was unable to be present at the second, the transcript of his testimony was admitted in evidence, and read to the jury, over the defendant's objection, upon the ground that it did not tend in any way to prove the allegations of the complaint, and was irrelevant, immaterial and incompetent. He testified that he was a regularly licensed and practicing physician, and as such was called to see Miss Howell and Miss Wallace, who were reported to have been poisoned; that he found the two girls lying on the floor, suffering very severely with cramps and pain in the region of the stomach; that he gave them emetics and hypodermic injections of apomorphine, which caused them to vomit everything off the stomach; that they suffered very severely for a while, but he remained with them two or three hours, and when he left they were apparently in a fair condition, although he still had great fears of the result that he attended them six or seven days before they were out of danger. Without any further showing of his qualifications to speak as an expert, or any further detail of the symptoms, he was asked the following question: "Well, you may state to the jury what their sickness indicated,--what the symptoms indicated to you as a physician," and answered: "The symptoms of the case indicated to me arsenious poisoning. Of course, I didn't make an examination of the vomiting, or the sputum, or anything of that kind." He further testified that he did not make such examination because he was busy at the time; that later Miss Howell had a sinking spell "and collapse, such as I have seen in these cases"; that her heart stopped acting, and her pulse was scarcely perceptible. Two principal objections are urged to the admission of the doctor's testimony: (1) That he was not shown to be qualified to express an opinion as an expert; (2) that his opinion, as given, was based upon facts not stated. There is some conflict in the authorities as to whether a medical witness is qualified on a trial for poisoning to give an opinion that the symptoms indicate poisoning, when his knowledge was not obtained from personal experience or observation. Rogers, Exp.Test. (2d Ed.) § 42. It is held, in a well reasoned and considered opinion by Mr. Justice Orton in Soquet v. State, 72 Wis. 659, 40 N.W. 391, that a physician could not testify that certain described symptoms indicated arsenical poisoning, when all his knowledge about the symptoms of such poisoning was derived from the study of medical works and his instruction at a medical college. But in an equally well-considered opinion by the supreme court of Michigan ( People v. Thacker, 108 Mich. 652, 66 N.W. 562) it is held that a practicing physician, who is a graduate of a reputable medical college, and who has sufficiently qualified himself to have a definite opinion of his own, may testify as an expert on the subject of poisoning, though it is not shown that he has had any experience in such cases. But, whatever the rule may be in this particular, the books all agree that, before one can testify as an expert on that subject, it must first be shown that he is qualified to do so, either by actual experience, or such careful and deliberate study as enables him to form a definite opinion of his own in reference to the matter. People v. Thacker, supra; Siebert v. People, 143 Ill. 571, 32 N.E. 431; Polk v. State, 36 Ark. 117. Indeed, the definition of an expert implies as much. It is one who has made the subject upon which he gives an opinion a matter of particular study, practice, or observation. He must have a particular and special knowledge upon the subject; and his competency, which is a question for the court, must be...