People v. Smith

I dissent.

While the authorities cited by Mr. Justice De Haven beyond question determine that the testimony of Dr. Hayden was incompetent, still I am unable to see how the defendant was prejudiced thereby. The theory of the prosecution at the trial was, that the defendant had his back turned toward the deceased at the time he received the wound in the arm. The theory of the defense was, that the defendant was standing with his side to the deceased, and his left arm raised to a certain angle, at the time he received the wound. The doctor, as an expert, testified that the defendant could have been in either one of those two positions at the time he received the wound; consequently, I do not perceive how the defendant was prejudiced by the admission of the testimony.

The defendant was charged with the crime of murder, and was convicted of manslaughter. The defendant was himself shot by the deceased during the difficulty which resulted in the homicide, and it was a contested question upon the trial as to whether the defendant or the deceased fired first, the contention of the defendant being, that he acted in self-defense, and did not shoot until after he himself was wounded; and in the determination of this question it became material to ascertain the position in which the defendant was at the time when he was shot.

Upon the trial, Dr. Hayden, a physician and surgeon, was called as a witness on behalf of the people, and was asked: “ Will you state, if you can, from your examina *447 tion of this man’s arm and your familiarity with gunshot-wounds, if you are familiar with them, in what position, in your judgment, this man’s arm was at the time that wound was received?” The question was objected to by defendant as incompetent, which objection was overruled, and the witness, in giving his opinion, stated that the defendant when shot was in one of two positions: 1. Standing with his side toward the discharged weapon, with the forearm flexed…

I dissent. Dr. Hayden was examined as a witness in chief for the prosecution, — not in rebuttal; so that whether or not that part of his testimony objected to was of any importance could not be determined before the evidence of the defendant was introduced. At the time of the homicide, defendant received a pistol-wound inflicted by the deceased, and Dr. Hayden was first properly asked about that wound,— what part of the body it was in, its size, the points of *449 entry and exit, etc. He testified that it was on the inner side of the left forearm, a little below the elbow. Then the prosecution, with the approval of the court and against defendant’s objection, made an excursion into the doubtful domain of expert testimony. The transcript relates what occurred, as follows: —

At the end of this testimony is appended a note as follows: —

I do not deem it necessary to determine definitely whether or not this ruling of the court was, in the abstract, erroneous, because it is apparent that the appellant was not injured or prejudiced by it. As before stated, the defendant was himself wounded at the time of the homicide. The deceased fired at defendant either before or after the shot by…