Lemperle

The defendant was arraigned and tried for the crime of murder, and having been found guilty of manslaughter, appeals from the judgment, and from the order refusing a new trial.

The only error alleged in regard to the admission of evidence consists in permitting a medical witness to testify from his examination of the deceased the distance of the deceased from the muzzle of the pistol at the time of its discharge. The witness said: “ I should think the pistol was about four feet, — that is, the muzzle of the pistol, — not including the length of the arm, — about four feet from the wounded man, as near as I can tell.”

The only proof of the competency of the witness as an expert was, that he was a physician, and his statement, “I have had some experience as to gun-shot wounds in the last two years.” That the ruling was erroneous, there can be no doubt. A physician is not, as such, an expert upon such matters. If he found that the flesh was burned or contained unburned powder, he would know that the pistol must have been near, but this is matter of common observation, and not a matter of special knowledge. The facts being stated, it was for the jury to judge. (People v. Westlake, 62…