People v. Smith

De Haven, J. 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 almost to a right angle to the upper arm, and the arm and elbow carried in front of and well toward the right side of the trunk, the trunk being inclined to the right of a perpendicular; or 2. “ The arm may have been only partially flexed in the upper arm, and hanging at the side, the wounded party having his back toward the party firing the shot”; but the general tenor of his testimony was to the effect that he inclined to the opinion that the wound was received while the defendant was in this latter position. The court erred in the admission of this evidence. The subject-matter of the inquiry was not one in relation to which the opinion of an expert can be properly received. The position of the wound being given, and the course taken by the bullet known, the jury was fully as competent to determine the relative positions of the parties to the difficulty as was the witness. (People v. Kennedy, 39 N. Y. 245; Cooper v. State, 23 Tex. 331; People v. Westlake, 62 Cal. 303.)

Nor can we agree with the attorney-general and associate counsel for the people, that the admission of this incompetent evidence was a harmless error, and therefore without prejudice to the appellant. It went to sustain the theory of the people in relation to the pivotal point in the case, and at the same time to discredit the testimony of the defendant. The defendant testified, in effect, that he did not draw his weapon or fire until after he had been shot by the deceased; that after firing the first time he continued to face the deceased, at the same time backing to and against the door, and while thus backing he shot at the deceased again. On the other