Fundy v. State

By the Court. Stephens, J., delivering the opinion. The whole theory of murder in this case rested upon the fact that the prisoner had an intent to kill the deceased before the fight commenced. The opinion of O’Shields, therefore, that he had such an intent, was very material evidence. It tended to hurt the prisoner, because it bore directly upon the point to be established against him. It was not legal evidence, not because such an intention was an improper fact to be proven, but because the mere opinion of a witness, expressed, not on the stand under oath, but reported by him on the stand under oath, as having been expressed just before the fight commenced, was an improper means of proving it. The attempt was made in the argument to bring this evidence within the principle of res gestae, but it cannot be brought within that principle. The opinions which spectators may happen to form concerning an affair, cannot be considered as part and parcel of the affair; and whether they keep their opinions to themselves or express them to others, can make no difference, unless the expression may have influenced the course which the affair took. In such a case, the expression of the opinion would be part and parcel of the affair itself. If, for instance, the deceased in this case had been the slayer instead of the slain, he might have proved that this opinion had been expressed to him just before the fight, by way of showing that he acted on a warning of danger, and not from malice. In that case, the opinion would not be any evidence that the fact had been in accordance with it, but the expression of the opinion would itself be a fact, exerting- an influence upon the transaction. But in this case, the opinion went as evidence that the fact had been in [412] accordance with it; that is to say, as evidence that the prisoner did have the intent to kill- before the fight commenced. The expression of that opinion to the deceased could have had no influence upon the prisoner, and there is no more reason for allowing the witness to testify that he had expressed such an opinion to the deceased, than there would be for allowing him to testify that he had thought so, without expressing it. In other words, the expressed opinions of spectators, except when they may be fairly supposed to have exerted an influence upon the affair, and no more part and parcel of it than their secret thoughts would be. We find mo other error in this record. J udgment reversed.