State v. Musgrave

English, President : David Musgrave was, on the 15th day of February, 1895, indicted for the murder of his wife, Emeline Musgrave, by a grand jury of Monongalia County, and on the 26th day of June, 1895, was found guilty of the charge contained in said indictment, and the jury further found that he be punished by confinment in the penitentiary. On the 27th day of June, 1895, the prisoner moved the court to set aside the verdict of the jury, and grant him a new trial, upon the following grounds: (1) Because the verdict ivas contrary to the law and the evidence in the case; (2) because the court admitted on the trial improper evidence on behalf of the State; (8) because the court refused to admit proper evidence offered by the defendant; (4) because the court misdirected the jury in its instructions to them on behalf of the State, and in refusing to give an instruction asked for by the defendant; (5) because of misconduct of the jury, — which motion was, on consideration by the court, overruled, and the prisoner excepted, and thereupon the court rendered judgment upon said verdict, and sentenced the prisoner to confinement in the penitentiary for the term of his natural life, and from this judgment the prisoner applied for and obtained a writ of error and superse-deas. Upon this writ of error the case was heard at the January term, 3896, and the judgment of the court below was affirmed. Subsequently a petition for a rehearing of the writ of error was presented and upon consideration ivas allowed, and at the March special term of this Court, 1897, the case was reargued, and is now before us for considera — 675 — tion upon the reargument. During the trial various exceptions were taken, to the rulings of the court upon instructions which were allowed and refused, and upon the admission of testimony to the jury, which counsel for the prisoner regarded as improper, and the entire testimony is set forth in a bill of exceptions as part of the record. The first error assigned and relied on by the plaintiff in error is that the court erred in overruling his motion to quash the indictment. This assignment, however, does not appear to be insisted upon by counsel for the prisoner in their briefs, and, as the indictment appears to conform to the statute, we supj>ose the motion was made out of abundant caution. The next assignment of error relates to the form of the oath administered by the jury. The jury was sworn to “well aud truly try and true deliverence make between the State of West Virginia and David Musgrave, the prisoner at the bar, whom you shall have in charge, and a true verdict render, according to the evidence, so help you God.” ' It is claimed that they should have been sworn “a true verdict to render according to the law and the evidence.” The oath administered was exactly in accordance with the form x>rescribed. (Matth Or. Law, p. 253, note); also with the form prescribed in Bobinson’s Old Dorms, and the form used in this case is the one which has been used in felony cases, both in Virginia and in this State, for very many years, and came to us from the English practice, and we should depart with reluctance from those time-honored forms. It is true that in Arkansas the jury, being the judges as well of the law as the facts (as they have been held to be in this State), must be sworn to try the case according to both. The form of the oath, by analogy to the form used in England, being: “You shall well and truly try, and a true deliverance make, between the state of Arkansas and the prisoner at the bar whom you shall have in charge, and a true verdict give according to thelaAV and the evidence, so help you God.” Patterson v. State, 2 Eng. (Ark.) 59. But if we felt at liberty to make an innovation on the time-honored practice which has come down to us from England and the mother state, can we say that the prisoner was prejudiced by the fact that the jury that tried him was not sworn a true verdict — 676 — to give according to the law and the evidence? The record clearly shows that this verdict was not given upon the evidence alone, but by applying the law to the evidence. They were instructed as to the law by the court, and in the light of these instructions they found the .prisoner guilty of murder in the first degree as charged in the indictment, and they further found that he be punished by confinement in the penitentiary. This they could not have done without applying the law as they understood it and received it from the court to the facts adduced in evidence before them. I do not, therefore, consider it necessary to change the form of the oath to be administered in a felony case so that they should be sworn to render a true verdict according to law and the evidence. It is further claimed by the plaintiff in error that the court erred in giving each and everyone of the instructions given for the State, and it is insisted by counsel for the prisoner that the circuit court erred in giving instruction No. 3 asked for by the State, and objected to by the prisoner, which reads as follows: “The court instructs the jury that circumstantial evidence is legal evidence, and in most criminal cases it becomes necessary to resort to circumstantial evidence. Criminal acts are usually performed in secrecy. Evidence should not be discredited because it is circumstantial. It is often more reliable than the direct testimony of eyewitnesses, when it points irresistibly and conclusively to the commisssion by the accused of the crime. A verdict of guilty in such cases may rest upon a surer basis than when rendered upon the testimony of eyewitnesses whose memory must be relied upon, and whose passions and prejudices may have influenced them.” It is earnestly contended by counsel for the prisoner that this instruction was erroneous for the reason that it dealt with the weight of the evidence. Now, a review of the testimony in the cause shows that the State rested its case, and asked that the prisoner be convicted entirely upon circumstantial evidence. If David Musgrave committed the deed of which he is accused in the indictment, no eye saw the act committed, and there is no direct evidence in the entire record fixing the crime upon him. Knowing that the State must rely solely upon circumstantial evidence in order to secure a conviction, the attorney for the State — 677 — asked the court to give the above instructions to the jury; and, while the instruction purports to draw a comparison between the weight of circumstantial and direct evidence, it can only relate to and be construed as applying to the evidence in the cause. The instruction was surely not asked in order that the court might have an opportunity to announce an abstract proposition; and when the court proceeds to state the effect of circumstantial evidence, and tells the jury that “evidence should not be discredited because it is circumstantial,” there being evidence of no other character before the jury, we can but regard it as an instruction on the weight of the evidence. And, again, when the court tells the jury that: “Such evidence is often more reliable than the direct testimony of eyewitnesses, when it points irresistibly and conclusively to the commission by the accused of the crime; a verdict of guilty in such cases may rest upon a surer basis than when rendered upon the testimony of eyewitnesses, whose memory must be relied upon, and whose passions and prejudices may have influenced them,” — can we say otherwise than that the court, in so instructing the jury, was instructing them upon the weight and effect of the only character of evidence that was before them? The court surely, when it says that such testimony is more reliable, and that a verdict of guilty may rest upon a surer basis than when rendered upon the testimony of eyewitnesses, was speaking of the weight of the evidence. It is further contended by counsel for the prisoner that the court erred in giving the sixth instruction on behalf of the State, which reads as follows: “The court instructs the jury that you are the judges of the weight and credibility of the witnesses who have testified in the case, and that you have a right to give such weight and credit to the testimony of a witness as in your judgment, from all the circumstances, it is entitled to. And if' you are of the opinion that any witness has wilfully and corruptly testified to what, is false, you are at liberty to reject all of his testimony that is not corroborated by other evidence.” This question was considered and passed upon by this Court in the case of State v. Thompson, 21 W. Va. 741. The third instruction in that case given at the instance of the State to the jury reads as follows; “The court instructs — 678 — the jury that, if they are satisfied from the evidence of William Patterson, Esther Patterson, Harvey Patterson, Alfred Allen, Moses Hunt and Rebecca Hunt, witnesses for the State, or either or any of them, have or has willfully and knowingly sworn falsely as to any fact or matter material to the issue involved in this case,that the jury are to disregard each and every other material fact sworn to on this trial by each and every of said witnesses whom they are so satisfied have sworn falsely as aforesaid, except so far as they may lie further satisfied from the evidence that the other material fact or facts so sworn to by each witness or witnesses has or have been corroborated by other creditable evidence in the case.” The Court, speaking through GReen, Judge, in that case, on page 756, says : “In determining whether this instruction should have been granted, it is necessary for us to have a clear conception of the respective duties and obligations of the court and jury in the trial of such a case. In England, as well as some of the states of this Union, much more latitude is given to the judge in such a case than is given them in Virginia or in this State. In some of the states the rule seems to be that a judge has the right to express his opinion to the jury on the weight of evidence, and to comment thereon as much as he deems necessary for the course of justice; and an erroneous opinion on matters of fact is no ground for a new trial, unless he goes to the extreme of inducing the jury to believe that he has withdrawn this matter from their consideration,” — citing Com. v. Child, 10 Pick. 252; People v. Rathburn, 21 Wend. 509; Johnston v. Com., 85 Pa. St. 54. He further says in the opinion: “A far different rule has always prevailed in Virginia and West Virginia. Our authorities are reviewed in the case of State v. Hurst, 11 W. Va. 75. It is there said: ‘In Virginia the courts have always guarded with jealous care the province of the jury.’ Thus, as far back as Ross v. Gill, 1 Wash. (Va.) 88, President. Pendleton said: ‘If the question depends upon the weight of testimony, the jury, and not the court, are exclusively and uncontrollably the judge.’ He also quotes from McDowell's Ex'r v. Crawford, 11 Grat. 405, as a result, of the conclusion of a review of the cases by Judge Moncure: ‘They evince a jealous care to watch over and protect the — 679 — legitimate powers of the jury. They show that the court must he very careful not to overstep the line wliieh separates law from fact. They establish the doctrine that, when the evidence is parol, any opinion as to the ’ weight, effect, or sufficieney of the evidence submitted to the j nry,> any assumption of a fact as found, or even an intimation that written evidence states matters which it does not state, will be an invasion of the province of the jury.’ And he adds: ‘If the province of a jury should be thus guarded with jealous care in a civil case, much more, and for stronger reasons, should it be watched, guarded, and protected in a criminal case.’” In that case the court made this remark to the jury when it was reported to him that one of them said they could not agree: “I see no reason why the jury cannot agree upon a verdict in this cause,” and directed the jury to return. They found the prisoner guilty, and the appellate court deemed this a sufficient reason to set aside the judgment and verdict, and grant a new trial. The case of State v. Batsall, 11 W. Va. 704, was also cited. In that case it was held that “a conviction may be had on the uncorroborated testimony of an accomplice, and in such case, if the judge who presided at the trial is satisfied with the verdict, and refuses to set it aside, the appellate court will not reverse the judgment and set aside the verdict on the ground that it rested solely on the uncorroborated testimony of an accomplice.” This conclusion is based on the fact that the jury are the sole judges of the credibility of all admissible testimony, and in this State the Court would err in advising the jury not to convict on the uncorroborated evidence of an accomplice, though this is the common practice in England and in some of the states. But it is utterly opposed to the practice in this State or in Virginia. On pages 740, 741, 11 W. Va., this Court, says: “Our courts are somewhat peculiar in this respect; but the law has been so held in Virginia from the earliest history of her jurisprudence, and we think it constitutes one of the brightest ornaments thereof.” Again, in the ease of State v. Greer, 22 W. Va. 813, the court refused to instruct the jury, at the instance of tbe’fprisoner, as follows: “The jury are instructed that the alleged declarations made by the prisoner after he struck the blow on the deceased are — 680 — to be taken in connection with the state of excitement, and confusion of mind of the prisoner. If the jury believe lie was excited, and in a raving state, as given in evidence, and if such declarations were made under such circumstances, they are to be admissions only that he struck the blow, and not a confession of any particular grade of crime; and the jury are further instructed that such declarations are to be considered by them with great caution, in view of the infirmity of memory and influences which often affect witnesses, and, if they believe that any of the witnesses for the State were actuated by. partisan sympathy, prejudice against the prisoner, or bias in favor of the prosecution, who testified to - such declarations, such declarations ought to have but little weight.’ Commenting on the action of the court below in refusing said instruction, this Court said: “Without attempting to say how much of said instruction propounds the law correctly, it was sufficient, to warrant the refusal of the court to give it, that it asks the court to instruct the j ury on the weight of the testimony. No instruction is proper that informs the jury as to what weight the evidence should have upon their minds. If the evidence is competent, it is for the jury alone to weigh it,”— citing State v. Thompson, supra. The question presented for the consideration of the Court in Betsall's Case, 11 W. Va. 703, was whether a conviction may be had upon the uncorroborated testimony of an accomplice, and the court held (point 10 of the syllabus) that: “While such testimony is suspicious, and emanates from a bad source, yet the jury may believe it, although it is wholly uncorroborated ; and in this State it is not proper for the court to give any instructions to the jury as to the weight of such or any other evidence.” In the case of Ware v. State (decided by the supreme court of Georgia, July 8, 1895), reported in 23 S. E. 410, it was held (point 2 of syllabus) that: “Upon the trial of a criminal case, where the principal incriminating evidence against the accused is purely circumstantial, consisting almost entirely of a similarity between certain tracks alleged to have been discovered near the scene of the crime and other tracks at other places, shown to have been made by the accused, all of which indicated a like peculiarity in the shape of the boot or shoe — 681 — with wliicli they must have been made, a charge to the jury that, in a case where there is nothing more than mere tracks, they should not be authorized to find the defendant guilty, unless there is some peculiarity about the tracks, is erroneous, under section j3248 of the Code, as expressing and intimating an opinion upon the weight of the evidence.” The court, in its opinion,' says : “There was a peculiarity about the track made by the defendant. There was a similar peculiarity about the track made at the scene of the homicide. The court charged the jury that a mere similarity of tracks alone would not be sufficient to sustain a conviction of the defendant, unless there was a peculiarity about the track. The effect of this charge was a direct intimation to the jury — but presumably unintended — that, if there was a peculiarity about the track, then mere tracks would be sufficient to justify a conviction. The vice of this instruction consists in telling the jury at all what evidence'would be sufficient to convict. Upon this point jurors are not required to consult the court, nor is the court authorized to give them the benefit of its advice. They are the exclusive judges of the evidence. They are the ministers chosen of the law to deal with these questions of fact. The evidence is sufficient whenever there is enough of it to generate in the minds of the jury a belief beyond a reasonable doubt of the guilt of the accused.” The authorities and decisions above cited and quoted, as I understand them, enunciate correctly the law of this State bearing upon the questions raised by the objection of the prisoner to the third and sixth instructions asked for and given to the jury at the instance of the State, and, as I think, they clearly direct the jury what weight should be given to circumstantial evidence, which constituted almost the entire evidence that was before them. In my opinion, the court invaded the province of the jury in a manner not sanctioned by law, and in so doing committed an error prejudicial to the prisoner. Upon the question as to whether the prisoner was injured by these instructions, this Court has held in the case of Nicholas v. Kershener, 20 W. Va. 253 (point 10 of syllabus), that, “where an erroneous instruction has been given to the jury, the presumption is that the exceptor was prejudiced thereby, and — 682 — the judgment will be reversed for this cause, unless it clearly appears from the record of the cause that the ex-ceptor could not have been prejudiced by the giving of such erroneous instruction”; and the same is held in the case of State v. Douglass, 28 W. Va. 298 (point 6 of syllabus). Can Ave say that the prisoner Avas not prejudiced by the action of the court in telling them that “circAimstan-tial evidence is often more reliable than the direct testimony of eye-Avitnesses, ” and that, “a verdict of guilty in such cases may rest on a surer basis than when rendered upon the testimony of eyeAvitnesses, Avhere memory must be relied upon, and Avhere passions and prejudices may have influenced them,.” and in further telling them that, “if they Avere of opinion that any witness had Avillfully and corruptly testified to what was false, they Avere at liberty to reject all his testimony that Avas not corroborated by other testimony.” The jury surely had the right to believe portions of the testimony of a AAdtness, although they may have believed he swore falsely as to other matters, and that, too, Avithout Availing for corroboration ; and it had a tendency to prejudice the prisoner Avhen the court told the jury that they Avere at liberty to reject the testimony of such witness without also telling them that they were at liberty to credit his testimony. It is further claimed by counsel for the prisoner that the court erred in admitting improper evidence against the accused, and rejecting proper evidence offered by him; also in improperly admitting expert testimony in favor of the State, and in improperly rejecting expert and other evidence offered in behalf of the defendant, as set forth in bill of exceptions No. 4. During the progress of this trial several medical witnesses were examined, and it is claimed by the plaintiff in error that they went beyond the limit prescribed for witnesses of this character, in this; that they gave their opinions and conclusions in regard to facts Avhicli were brought to their attention, conclusions which it required no skill or science to reach, hut conclusions which the layman or juryman were just as capable of correctly arriving at from the facts as the medical expert. The object in the examination .of experts, and the manner in which their testimony is limited and circumscribed by law, is clearly and concisely stated in the case — 683 — of Hunt v. Gaslight Co., 8 Allen, 169, where it is held that “the object of all questions to experts should be to obtain their opinion as to matters of skill or science which are in controversy, and at the same time to exclude their opinions as to the effect of the evidence in establishing controverted facts.” The theory of the State in the case under consideration was that 'the deceased came to her death as the result of choking, inflicted upon her by the prisoner, and that, after death had resulted, she was thrown in the creek, to create the impression that she had drowned herself ; while, on the other hand, the contention of the prisoner was that for some time she had shown indications of melancholy 'and insanity, and that in a fit of despondency she had thrown herself in the water, and the abrasions on her face and neck were either caused by the branches of trees which hung down near the creek, or by her own hands, in attempting to make a speedy end to herself; and testimony was adduced for the State and for the prisoner in support of these opposing theories. To support the contention of the State, medical experts were introduced, and their opinions were called for, with a view of influencing the verdict of the jury, and certain questions were propounded to these medical men, which were objected to by the prisoner. The objection was overruled by the court, and the prisoner excepted, and the action of the court is assigned as error. Now, in order to pass correctly upon the ruling of the court upon these questions, it becomes necessary to examine the law governing the admission of expert testimony, and then determine ¿whether the questions propounded to these medical witnesses were admissible under the rules of evidence. Now, in the eighth volume of the Encyclopedia of Pleading and Practice, under the title of Expert Witnesses (page 751), it is said: “While the admission of the opinion of experts necessarily gives rise to very nice distinctions between facts and findings, it nevertheless does not annul the rule of law axiomatic with reference to them, as well as to all witnesses, that they must not be so examined as to substitute their opinions for the verdict, and thus completely usurp the peculiar province of the jury,” — citing numerous authorities, and, among others, Livingston v. Com., 14 Grat. 594; McMechen — 684 — v. McMechen, 17 W. Va. 683; Kerr v. Lunsford, 31 W. Va. 659 (8 S. E. 493); Bowen v. City Huntington, 35 W. Va. 682 (14 S. E. 217). And on page 754 it is further said: “Although an expert may have heard all the testimony in the case, he cannot be asked to give his opinion, based merely upon his having heard such testimony, whenever there is a conflict therein, unless the same is hypothetically propounded to him. ” And on the next page we And it stated that “an expert cannot be asked to give his opinion upon doubtful facts in the case on trial which remain to be found by the jury, but a similar case may be hypothetically put to him, based upon the evidence in such case. ” Starkie, Ev. (9th Ed.) top page 154, says : “In general, scientific men ought to be examined only as to their opinion on the facts proved, and not as to the merits of the case.” And on page 157 the same author says: “But where the inquiry relates to a subject which does not require peculiar habits of study in order to enable a man to understand it, the opinion of skilled or scientific witnesses is not admissible.” Judge GeeeN, in his opinion in the case of Welch v. Insurance Co., 23 W. Va. 306, quotes the above from Starkie, and adds, “He is unquestionably right in this position.” Let us look now to the character of some of the testimony of the medical witnesses examined by the State and objected to by the prisoner; referring first to the testimony of Dr. M. H. Brown, who assisted in the autopsy. He was asked, “What was the nature of the wounds on the neck? Describe them; ” and replied : “It was what we temían ‘abrasion.’ The skin was removed, and a little blood had come to the surface, — what you people would call a ‘scab.’ Some were larger than the others.” Again, this witness was asked, “What did these marks on the neck resemble, if anything, when you looked at thém?” In his answer he says, “Please exxflain what you mean by that — ‘what did they resemble’?” He then was asked, “What did they look like as to how they were made?” This question was objected to, the objection was overruled, and an exception taken. The witness then answered, “When. I looked at these marks, the idea seemed to come to me that they were made by hand.” So it is perceived that, instead of describing the appearance and size of the — 685 — abrasions, so that the jury might know upon what he based his inference, he swears to his conclusions from the appearance of the marks, and it required no skill or science on his part to tell what impression the appearance of these abrasions made upon his mind; and, if he had answered the question properly, and told what the abrasions resembled, — that is, what was their general appearance,— the jury would have been just as capable to form a conclusion as he was, and it presents just such a case as the books tell us an expert is prohibited from giving his conclusion or opinion in, and in which he cannot give his opinion without invading the province of the jury. Again, Dr. Few, a witness for the State, when asked to describe the wounds on the neck as carefully as he could, answered: “They were from mere scratches, or simple abrasions, to complete removal of the cuticle. Thej'- were superficial, only on the surface, — and were bright red, from the clotted condition of the blood on them. There was no discharge.” And when asked, “From your examination of these external marks on the neck, what did these marks resemble, if anything?” the question was objected to, overruled, and an exception taken, and the witness answered: “Well, I have nothing in pátliology or medicine to give me a standard by which to compare the wounds, but they suggested themsslves to me on first sight as being finger marks. I can’t explain it through any logical reasoning at all, bút amere suggestion.” Now, this question and answer demonstrate clearly that the opinion called for in the question was not such as an expert or a witness examined as an expert had a legal right to give, as the witness answers frankly that he had nothing in pathology or medicine to give him a standard by which to compare the wounds (that is, neither science nor skill were required to answer the question), yet he proceeds to tell what they suggested to him on first sight, in support of the theory of the State (something which any man who had never opened a medical book could have done as well); and, as I think, the objection was overruled in violation of the rules of evidence with regard to expert testimony, and to the prejudice of the prisoner. The same remarks apply to the testimony of Dr. Fitch, a witness for the State, who was asked to state what these marks re — 686 — sembled, if anything. An objection was made, which was overruled, and an exception taken, and the witness answered, “The impression that I formed was that they were made with the hands and fingers or finger nails.” Again, Dr. J. J. Hall was interrogated by counsel for the State as follows: “How did the external marks of violence indicate, if anything, as to Iioav they were made? What did they resemble, if anything?5'’ and over the objection of the prisoner was permitted to answer : “There is no rule laid down by which we can form an opinion as to what produces an abrasion, but I will say they were suggestive of finger marks, because they resembled marks of that character which I have seen, and known to have been produced in that way.” It is perceived at once by the answer of this witness that what he has acquired in the way of skill and science in his profession is not brought into requisition to assist him in making this answer. He frankly says, “There is no rule laid down by which we [physicians] can form an opinion as to what produces an abrasion,” but he would say they were simply suggestive of finger marks because they resembled marks of that character, which he had seen, and known to have been produced that way. This, then, was not an answer which an expert would be allowed to make. It required the use of no skill or medical science to make it ;■ and yet the objection to the answer was overruled. The rule in regard to the admission of expert testimony is stated by Rog. Exp. Test. p. 8, § 5, as follows: “The rule is that the opinions of experts or skilled witnesses are admissible in evidence in those cases in which the matter of inquiry is such that inexperienced persons are unlikely to prove capable of forming a correct judgment upon it, for the reason that the subject-matter so far partakes of the nature of a science, art, or trade as to require a previous habit of experience or study in it in order to acquire a knowledge of it. When the question involved does not lie within the range of common experience or common knowledge, but requires special experience or special knowledge, then the opinions of witnesses skilled in the particular science, art, or trade to which the question relates are admissible in evidence.” The propriety and necessity of confining expert witnesses, in delivering their — 687 — testimony, to the strict legal rules governing the admission of such evidence, is apparent when it is considered that the testimony of witnesses of this character, and their opinions derived from peculiar opportunities of study and practical experience, necessarily have peculiar weight with the jury. In the case of Overly v. Railway Co., 37 W. Va. 525 (16 S. E. 813), this Court held (point 5 of syllabus) that: “If the facts in a case can be placed before a jury, and they are of such a nature that jurors generally are just as competent to form opinions in reference to them, and draw inferences from them, as witnesses, then the opinion of experts can not be received in evidence as to such facts.” Also, in point 6 of syllabus in same case, that “the opinion of a witness who neither knows nor can know more about the subject-matter than the jury, and who must draw his deductions from facts already in the possession of the jury, is not admissible.” Hog. Exp. Test.'p. 12, § 8, speaking as to the admissibility of expert testimony, says: “Whenever the subject-matter of inquiry is of such a character that it may be presumed to lie within the common experience of all men of common education moving in ordinary walks of life, the rule is that the opinions of experts are inadmissible, as the jury is supposed in all such matters to be entirely competent to draw the necessary inferences from the facts testified to by the witnesses. The testimony of experts is inadmissible upon a matter concerning which, with the same knowledge of the facts, the opinion of any one else would have as much weight.” “It is only admissible when the facts to be determined are obscure, and can only be made clear by and through the opinions of persons skilled in relation to the subject-matter of-inquiry.” In the case of Bowen v. City of Huntington, 35 W. Va. 682 (14 S. E. 217) (point 4 of syllabus), this Court held that, “where the conclusions called for by a hypothetical question from a medical man, who is being examined as an expert, depends upon facts, the evidential weight of which can only be determined by those familiar with that specialty, then those conclusions may be given by an expert in such specialty.” We also also find the law thus stated under the head of “Expert Witnesses” in 8 Ene. PI. & Frac. p. 755 : “An expert can not be asked to give his opinion upon doubtful facts in the — 688 — case on trial, which remain to be found by tlie jury, but a similar case may be hypothetically put to him, based upon the evidence in such case.” And the same book, on page 744, says: “The principal object in view in the examination of expert witnesses being to elicit from them opinions or conclusions drawn from the facts, rather than the facts themselves.” This species of testimony forms in this respect a notable exception to well-established rules of evidence. The rules governing the introduction of this species of testimony should not, therefore, be relaxed, but should be strictly enforced with the greatest caution'and discrimination. Dr. Hartigan, a witness who did not assist in the autopsy, was asked the following question: “From the report of this autopsy, does it not appear that there was simple engorgement of the vessels in that thyroid, and nothing in that autopsy to show that there was any extravasation or rupture of the blood vessels,” and answered: “Yes, sir. The examination of the deeper structures of the neck shows an engorged condition of the thyroid region.” This question and answer we do not regard as proper under the rules governing the admission of expert testimony. In the case of Indemnity Co. v. Dorgan, 7 C. C. A. 581 (58 Fed. 945), the law is thus stated, —as we think, correctly: “A physician cannot'be asked whether or not, in his judgment, from testimony that he has heard, an autopsy was such as to enable a physician to state the cause of death with any degree of certainty, but the question should recite the scope and character of the autopsy.” Taft, J., in delivering the opinion of the court, says : “This question was clearly incompetent, because it asked the witness, who was a physician, to make his own inference as to what the evidence of the other witnesses tended to show, and then, upon such inference, to give his opinion. To properly elicit his opinion as to the character of the autopsy, and its usefulness in showing the cause of the death, counsel should have stated the scope and character of the autopsy as he understood it, so that the jury, in weighing the answer of the witness, could know exactly upon what facts it was based.” It was not alone, however, in the admission of expert testimony in this case that the prisoner was prejudiced by the ruling of the court, and had a right to complain. When — 689 — we refer to the testimony of Stephen G. Hess, who was examined as a nonexpert witness, we find that, after stating that, lie had seen the marks on the neck of the deceased, he was asked, “What did these marks resemble?” and was allowed to state, notwithstanding the objection of the prisoner, that “they looked to me as though some one had just grabbed hold that had a considerable grip.” He was also asked to state whether or not he saw any other marks on her body, and answered, “Yes, sir; some other marks or bruises on the arm.” He was then asked to describe those on the arm, and replied, “They were on the left arm, as well as I recollect.” He was again asked, “Describe them, if you please,” and answered, “A kind of a bruise on the arm, as though some one had held it with a severe grip,” which answer was excepted to. Now, this witness, instead of describing the wounds and bruises he saw upon the body of the deceased, proceeds to give his conclusions, and produces the same impression upon the jury as if he had stated that, in his opinion, David Mus-grave gripped the arm of his wife with one hand, while he choked her with the other. His answer was not responsive to the question; but, when asked “What .did these marks resemble?” proceeded to give his opinion and conclusion as to the manner in which the wounds and bruises were indicted, which was not allowable according to the rules governing such evidence. It is true that in the case of State v. Welch, reported in 36 W. Va. 690 (15 S. E. 419), the witness Gibson described a depression in the bed and a clot of gore in it, and was allowed to express the opinion that there had been a pool of blood there, and this Court held that it was not error; but the witness in that case drew no inference and expressed no opinion as to how or in what manner the blood stain was caused. He was not allowed to say, as in this case, that it looked as though some one had beaten the head of the deceased with a' brick, — the theory in that case of the ¡State being that the deceased was killed by beating her on the head with a large piece of lire brick, while she was lying in bed. The general rule is stated in 1 Am. & Eng. Enc. Law, p. 492, as follows : “The general rule is that witnesses must, testify to facts, and not to opinions. They must only state facts, not draw conclusions or inferences. To do so is to usurp — 690 — the province of the court or jury.” To this general rule, as a matter of course, there are exceptions, but the answers elicited from the witness Hess in this case, and which were allowed to go to the jury, are not embraced within any of the exceptions. Another witness, — Oolumbus Michael, a nonexpert, — after stating that he saw some scars on the neck, some ten or a dozen, was asked to describe them, and answered, “I did not examine them pretty close.” He was then asked, “What did they resemble, if anything?” and answered, “They just resembled as if some man had taken another one by the throat,” which question and answer were objected to, and the objection overruled. In the case of Taylor v. Railroad Co., 33 W. Va. 39 (10 S. E. 29), this Court held that opinions merely of a witness are not generally admissable evidence; and it also held that, where illegal evidence is admitted against the objection of a party, it will be presumed that it prejudiced such party, and, if it may have prejudiced him, though it be doubtful whether it did or not, it will be cause for the reversal of the judgment; but, if it clearly appear that it could not have changed the result if it had been excluded, it will not be the cause of reversing the judgment. And the same is held in the case of Hall v. Lyons, 29 W. Va. 410, (1 S. E. 582). Bishop, in his valuable work on Criminal Procedure (volume 1, § 1177), under the head of “Opinion of Witnesses,” says : “We have seen that what a witness describes as personally observed is, in philosophical truth, merely his inference from sensations felt; and there is no evidence which is not, to this extent, presumptive. In other words, all testimony is to opinions. But the witness alone is competent to form an opinion as to the cause of his sensations of this class. As to them, he is an expert, and the only expert in existence, tío, when he speaks of his opinions in this class of facts, he and his hearers alike term his opinions “facts.” But an opinion .which the jurors are in a situation to draw as well as he, will be drawn by them, and, though he should also have formed his opinion, he will not be permitted to state what it is.” Again, in 7 Am. & Eng. Enc. Law, p. 493, it is said: “Opinions are never received if all the facts can be ascertained and made intelligible to the jury, or if it is such as men in general are capable — 691 — of comprehending and understanding.” Also, in The Nereide, 9 Oraneli, 888, it is held that “a witness ought never to swear to inferences, without stating the train of reasoning by which his mind has been conducted to them.” In the case at bar there could have been no difficulty in the way of either of these nonexpert witnesses describing to the jury the size, number, and appearance of the scratches on the neck of the deceased, and giving their locality; but, without attempting to do this, the court permitted them to volunteer their opinions as to the manner in which the scars were inflicted, and stated that “they resembled as if some man had taken another one by the throat.” This was the way in which Columbus Michael expressed his opinion, while Stephen G. Hess, another nonexpert witness, expressed the opinion that “they looked to him as though some one had just grabbed hold that had a considerable grip.” These opinions, thus expressed, are contrary to the rules of evidence governing the admission of testimony of that character, and, as we have seen, they must be presumed to have been prejudicial to the prisoner. The prisoner was on trial, charged with one of the gravest offenses known to the law. The theory of the State was that he had taken the life of his wife by choking her to death, and then throwing her body into the creek, to create the impression that she came to her death by drowning; and to allow a nonexpert witness' to stand before the jury, and state, because he had seen some scars on her neck, his opinion that they were caused by some one grabbing that had a considerable grip, or that they looked as if some man had taken another by the throat, would, in my opinion, be subversive of long and Avell established rules of evidence in cases of this character. It is claimed that the court, erred in not taking the jury to view the locality where the deceased was found. This matter, as I understand it, is addressed to the discretion of the court (see Gunn v. Railroad Co., 86 W. Va. 165), (14 S. E. 465), and this Court would not review that discretion unless it was made to appear that the prisoner was prejudiced by such refusal; but, for the reasons above stated, this cause must be reversed, the verdict and judgment set aside, and a new trial awarded.