Commonwealth v. Sturtivant

Endicott, J. 1. There was evidence tending to show that three persons, Simeon Sturtivant, Thomas Sturtivant and Mary Buckley, were killed at the same time, by the same weapon. The government had the right to lay before the jury the whole transaction of which the murder of Simeon Sturtivant was a part. For this purpose the testimony of the physician, as to the autopsy of Mary Buckley, was competent. 2. The principal exception is to the competency of the evidence in regard to the blood-stain. The question here is whether a witness, who is familiar with blood and has examined, with a lens, a blood-stain upon a coat, when it was fresh, can also tes — 133 — tify that the ippearance then indicated the direction from which it came, and that it came from below upward, although .he has never experimented with blood or other fluid in this respect. The witness had previously testified to its appearance at the time he examined it, and to the fact that at the trial it was not in the same condition, some of the blood having been rubbed off. The exception to the general rule that witnesses cannot give opinions, is not confined to the evidence of experts testifying on subjects requiring special knowledge, skill or learning; but includes the evidence of common observers, testifying to the results of their observation made at the time in regard to common appearances or facts, and a condition of things which cannot be reproduced and made palpable to a jury. Such evidence has been said to be competent from necessity, on the same ground as the testimony of experts, as the only method of proving certain facts essential to the proper administration of justice. Nor is it a mere opinion which is thus given by a witness, but a conclusion of fact to which his judgment, observation, and common knowledge has led him in regard to a subject matter which requires no special learning or experiment, but which is within the knowledge of men in general.' Every person is competent to express an opinion on a question of identity as applied to persons, things, animals or handwriting, and may give his judgment in regard to the size, color, weight of objects, and may estimate time and distances. He may state his opinion in regard to sounds, their character, from what they pro ceed, and the direction from which they seem to come. State v. Shinborn, 46 N. H. 497. The correspondence between boots and footprints is a matter requiring no peculiar knowledge, and to which any person can testify. Commonwealth v. Pope, 103 Mass. 440. So a person not an expert may give Ms opinion whether certain hairs are human hairs. Commonwealth v. Dorsey, 103 Mass. 412. And a witness may state what he understood by certain “ expressions, gestures and intonations,” and to whom they were applied; otherwise the jury could not fully understand their meaning. Leonard v. Allen, 11 Cush. 241. In this connection may be noticed a large class of cases, where, from certain appearances more or less difficult to describe in words, witnesses have been permitted to state their conclusions in — 134 — relation to indications of disease or health, and the condition or qualities of animals or persons. As, when a witness testifies that a horse’s foot appeared to be diseased, he states a matter of fact, open to the observation of common men. Willis v. Quimby, 31 N. H. 485. And it is proper for a witness to give his opinion that a horse appeared to be sulky and not frightened at the time of an accident; Whittier v. Franklin, 46 N. H. 23 ; or he may testify as to the qualities and appearance of a horse. State v. Avery, 44 N. H. 392. In Currier v. Boston Maine Railroad, 34 N. H. 498, it is said that the question whether there was hard pan in an excavation does not ask for an opinion, but seeks for facts within the knowledge of "the witness, and of which the knowledge may be obtained by common observation. It is competent for a witness to testify to the condition of health of a person, and that he is ill or disabled, or has a fever, or is destitute and in need of relief; Parker v. Boston & Hingham Steamboat Co. 109 Mass. 449 ; Wilkinson v. Moseley, 30 Ala. 562 ; Barker v. Coleman, 35 Ala. 221; Autauga County v. Davis, 32 Ala. 703 ; and one may testify that another acted as if she felt very sad. Culver v. Dwight, 6 Gray, 444. So those who have observed the relations and conduct of two persons to each other may testify whether, in their opinion, one was attached to the other. And in M'Kee v. Nelson, 4 Cowen, 355, the court say : “ The opinion of witnesses on this subject must be derived from a series of instances passing under their observation, which yet they never could detail to a jury.” See Trelawney v. Colman, 2 Stark. 191. A witness may also give his judgment whether a person was intoxicated at a given time ; People v. Eastwood, 4 Kernan, 562; or whether he noticed any change in the intelligence or understanding, or any want of coherence in the remarks of another. Barker v. Comins, 110 Mass. 477. Nash v. Hunt, 116 Mass. 237. In Steamboat Clipper v. Logan, 18 Ohio, 375, it was held that a person who had been a captain and engineer of a steamboat, having examined a boat after injury by collision, may state his opinion as to the direction from which the boat was struck at the time of the collision. There was no evidence that the witness had any special knowledge in regard to collisions, through observation or experiment; and the court does not rest the decision on the ground that the witness was an expert; but says there is “ nc — 135 — objection to calling these men experts, if the name will render their testimony more unexceptionable; but it is not true as a legal proposition that no one but an expert can give an opinion to a jury. From the necessity of the case, testimony must occasionally be a compound of fact and opinion.” And the court say that they can give no better illustration of their meaning than by the use of the language in M’Kee v. Nelson, a portion of which is quoted above. Where, immediately after the collision of two boats, a person looked at their condition, he was permitted to testify to the impression made upon his mind as to the position in which they came together. Patrick v. The John Q. Adams, 19 Misso. 73. It would seem to be within the knowledge of men in general, when looking at the effects of a blow upon a solid body, to determine from the external marks and indications, if any exist, the direction from which it came. In the great majority of cases, these indications are distinct and plain, and to observe them is within the constant experience of men. Take the case of a heavy body striking on the ground. A falling shot or fragment of rock leaves a very different mark, according as it strikes the ground vertically or at an angle; and if at an angle, the general direction from which it came would be apparent to the common eye. In like manner, a contusion on an upright surface might plainly indicate the direction of the blow. Suppose the panel of a carriage door is broken in by a collision ; different appearances would follow from a horizontal blow delivered at right angles, than from a blow from the front or rear, from above or below. Such appearances the common observer can detect, some more accurately and clearly than others, but it is presumed to be within the power of all; and the opinion of an expert, who has experimented by blows on similar surfaces, and is learned in the law of forces, is not necessary or required. If the panel itself is introduced to the jury, they are competent and able to decide the question. If it cannot be, the witness who saw it may describe, as well as he can, what he saw, and state the conclusion he formed at the time. It would also seem to be within the range of common knowledge to observe and understand those appearances, in marks or stains caused by blood or other fluids, which indicate the direction from which they came, if impelled by force. — 136 — No one would question the fact that water passing over the surface of ground may and does, according to its force, leave clear and decisive indications of the direction of its passage. The dry bed of a mountain torrent, or the track of a freshet, clearly indicates the direction of the stream. And it is the same when propelled artificially by force, as from an engine. When the force is not great enough to disturb or displace the surface of the soil, the direction may be clearly discernible, when fresh, by the character of the marks, stains or moisture it leaves upon the ground. These may not all easily be described in words, but may convey a distinct and decided impression to the mind at the time. A bucket of water thrown upon the ground, particularly if thrown .with force, would leave indications of the direction from which it came, evident to the most casual observer. These would be more apparent if it congealed upon falling, and so became fixed and easily traced. So if a drop or small body of water or other fluid is thrown with force against a perpendicular surface, as against the side of a building, or against clothing upon the person in an upright position, indications of its direction would appear. Whether it is thrown fairly against the surface, or from above or below, or diagonally, it is common knowledge that it will leave different marks or traces of its progress and direction. These marks will be the more easily discerned if made by a fluid thicker than water, and will remain longer and be more conspicuous if it is such as to leave a stain, or if the surface is rough or uneven, so as to retard it or check it in its course. There is no question of science or learning necessarily involved in the understanding of these indications; if visible, they are easily understood. The only question is, were the common indications visible, from which direction may be inferred. It may be difficult in a given case to distinguish them without the most careful observation; but if seen by the witness, they may be testified to. It may also be more difficult to detect them on an upright surface, but that goes to the degree or weight of the evidence, not to its competency. Fryer v. Gathercole, 4 Exch. 262. Blood is a fluid which coagulates and stiffens rapidly when exposed to the air, and might therefore more decidedly give indications of its direction. If such indications do appear, there would seem to be no objection that a witness acquainted with the pecul — 137 — iar properties of blood, as the common mind is acquainted with more familiar fluids, should testify to them without having actually seen or made experiments in regard to it. The cases which have been cited are limited to those instances 'where common observers, having special opportunity for observation, but not experts having special learning, have been permitted to testify to their opinions, as conclusions of fact. The competency of this evidence rests upon two necessary conditions : first, that the subject matter to which the testimony relates cannot be reproduced of described to the jury precisely as it appeared to the witness at the time; and second, that the facts upon which the witness is called to express his opinion, are such as men in general are capable of comprehending and understanding. When these conditions have been complied with or fulfilled in a given case, the court must then pass upon the question, whether the witness had the opportunity and means of inquiry, and was careful and intelligent in his observation and examination. It is not the mere qualification of the witness but the extent and thoroughness of his examination into the specific facts to which the inquiry relates, and the general character of those facts, as affording to one, having his opportunity to judge, the requisite means to form an opinion. The same rule applies to this class of testimony as to the testimony of experts, whether the expert is competent by his study or business, and whether he has qualified himself to testify, or had proper opportunity to examine, are preliminary questions for the court. So when witnesses to the value of land or propertj or handwriting are called, to which all men may testify, if they have information on the subject matter of inquiry, their qualification to give an opinion must be first decided by the court at the trial. In all these cases the element of fact is involved to be decided by the court, upon which the capacity to testify depends. And the decision at the trial, like all decisions of this character, is final and conclusive, unless upon a report of all the evidence it is shown to be without foundation, or is based on some erroneous application of legal principles. Nunes v. Perry, 113 Mass, , and cases cited. Commonwealth v. Coe, 115 Mass. 481. Swan v. Middlesex, 101 Mass. 173, 177. — 138 — In the case at bar the admission of the evidence by the court involved the decision: (1) that the stain was not in the same condition, and did not exhibit the same appearance at the trial as it did when examined by the witness, and cannot be reproduced to the jury: upon this as a matter of fact there is no question ; (2) that the stain might in itself furnish indications from what direction it* came, capable of being observed by a witness, who though familiar with blood and its qualities, had not made or seen experiments made with it or other fluids in this respect; and (3) that the witness had made that thorough, careful and intelligent observation of the appearances, which would entitle him to testify. We must take the decision of the court on this last point to be conclusive. Whether the reasons the witness gave for his opinion of the direction of the stain were sound or unsound, does not affect, the question of competency, and of course the defendant had full opportunity to test him by cross-examination, or to show by evidence or argument that his reasons were unsound. We cannot say that such a witness, familiar with blood, its properties and appearance, with his opportunity to examine and the actual examination made by him, might not form and testify to a reliable opinion as to the direction in which the blood moved in making the elongated stain, although he had never made actual experiments of that kind; and we see no ground for sustaining this exception to the admission of the evidence. 3. For the same reasons the testimony in regard to the shoes taken from the defendant’s house soon after the homicides, was • competent. The witness stated the result of his observation, made at the time, of appearances that could not be reproduced or accurately described in words to the jury; and his testimony related to a subject matter within the common observation and experience of men. 4. The testimony of the administrator of Simeon Sturtivant, that he had made inquiries and could not discover that any sum of money belonging to Sturtivant was unaccounted for, was properly excluded. The fact that no money was missing was competent, and was not excluded by the court. But the information obtained by the administrator upon inquiry, was mere hearsay and therefore inadmissible to prove the fact sought to be estab> Iished. — 139 — 5. The confession, of the defendant, made to the officer, was properly admitted. No inducement or influence of any kind appears to have been used to obtain the confession. It was voluntarily made after the defendant had been cautioned at a previous interview that he was not obliged to answer any questions. 6. The officers, upon arresting the defendant, found in his possession $333. To account for this in part, the defendant offered to prove that one White, some time before the homicide, accused him of stealing $200, and “ that the defendant did not deny the charge.” Giving the utmost effect to this evidence, it would amount to a declaration only by the defendant some time before the homicide, that he had in his possession two hundred dollars. Such a declaration is not admissible in his own favor. 7. The description given by the witness of the scrip which he found in the bureau drawer at the Sturtivant house was properly admitted. The scrip itself was afterward put in evidence, and this description was admissible for the purpose of identifying the scrip produced by the government, as the same seen by the witness in the bureau drawer. For this purpose it was clearly competent. 8. The refusal to allow a witness to read extracts from a work on medical jurisprudence, was in accordance with the well settled practice in this Commonwealth. Washburn v. Cuddihy, 8 Gray, 430. Commonwealth v. Wilson, 1 Gray, 337. 9. The remaining exception was to the evidence that the defendant in chopping wood used the axe with his right hand forward. It does not appear how this testimony applied to the case, and, therefore, the bill of exceptions fails to show that its admission was erroneous. If, as is to be presumed, it appeared in evidence that the fatal blows upon the deceased were inflicted by a weapon used with the right hand forward, it was competent to prove that the defendant so used his axe when chopping wood. It is like the ordinary case, where a blow is apparently inflicted by a left-handed person, it is competent to prove that the accused is left-handed. It does not prove that he struck the blow, but it is a circumstance pointing to him as belonging to a class by one of whom the blow was struck, and, in connection with other inculpating testimony, is competent. Exceptions overruled.