was not suicidal.22 But the question whether a wound was accidentally self-inflicted is for the jury.23 The physician who was in attendance upon the victim of the homicide during his mortal illness may properly repeat on the witness stand the declarations of the deceased as to his feelings and sufferings, the locality and character of his pain and as to his physical condition generally. The physician may then testify as to his opinion of the extent and character of the wounds, his opinion being based in part upon what the deceased told him. A physician who is called to give an opinion as to the cause of death may state that from his experience and learning as a practicing physician he is competent to give an opinion as to the cause of death. On such a statement he may be regarded as an expert.25 But expert evidence is not admissible to show the probable position of the deceased when the fatal blow was struck, or whether he would, after receiving it, have sufficient strength to inflict a blow with an effect specified," as these are questions which the jury can determine as well as any expert. 22 Everett v. State, 62 Ga. 65. State v. Bradley, 34 S. Car. 136, 13 S. E. 315; Beene v. State, 79 Ark. 460, 96 S. W. 151; Covington v. People, 36 Colo. 183, 85 Pac. 832; Brock v. Commonwealth (Ky.), 110 S. W. 878, 33 Ky. L. 630; People v. Williamson, 6 Cal. App. 336, 92 Pac. 313; State v. Trusty, 1 Penn. (Del). 319, 40 Atl. 766. A non-expert witness may testify as matter of common knowledge that a pistol must be held very close to clothing, when fired, to scorch it. Millér v. State, 110 Ala. 674, 19 So. 37; State v. Cater, 100 Iowa 501, 69 N. W. 880. A woman who has seen burns and who testifies that she and her children have been burned, though she is a non-expert witness may state that wounds were caused by burns. State v. Nieuhaus, 217 Mo. 332, 117 S. W. 73. A radiograph showing the vertebra and an object located near it has been ac 35-UNDERHILL CRIM. EV. 26 cepted as competent. There must be some evidence that the radiograph correctly represents the condition of the body though it is not absolutely necessary that either a physician who was present or the operator who took the radiograph shall say that the object in the radiograph is a bullet. State v. Matheson, 142 Iowa 414, 120 N. W. 1036. 24 Gregory v. State, 148 Ala. 566, 42 So. 829. State v. Wilcox, 132 N. Car. 1120, 44 S. E. 625. 20 Brown v. State, 55 Ark. 593, 18 S. W. 1051; Kennedy v. People, 39 N. Y. 245, 256, 257; Watkins v. State, 89 Ala. 82, 88, 8 So. 134; People v. Hill, 116 Cal. 562, 48 Pac. 711. Contra, State v. Sullivan, 43 S. Car. 205, 208, 21 S. E. 4; Miera v. Territory, 13 N. Mex. 192, 81 Pac. 586. The fact that the deceased died suddenly never warrants an inference that he was foully dealt with. It is for the state to prove that his death was the result of a criminal act, and, unless or until this is proved, it is presumed that death resulted from natural causes.28 The accused may show the deceased was of a melancholy temperament or inclined to suicide,20 and may show any acts or declarations on the part of the deceased showing his suicidal purpose,30 while the state may prove the cheerful disposition and good health, the social condition and favorable prospects and the pleasant personal surroundings of the deceased, to show the absence of a suicidal intent.32 So the state may prove that the accused had threatened to kill a third person at a particular place and in a particular manner, and that the killing of the deceased corresponded in time and manner with the threat to contradict the contention by the accused that the deceased had committed suicide. 33 31 § 313. The result of the autopsy as evidence.-The testimony of a competent surgeon or medical practitioner, who conducted the autopsy, is admissible, though some minor statutory details were not observed, and though the accused was not notified to be present, or, being present, was without counsel. The physician may describe what tests are necessary to ascertain the cause of 34 admissible, as they are merely hear- 31 State v. Marsh, 70 Vt. 288, 40 Atl. 33 Commonwealth V. Snell, 189 Mass. 12, 75 N. E. 75, 3 L. R. A. (N. S.) 1019n. "People v. Weber, 149 Cal. 325, 86 Pac. 671; Commonwealth v. Taylor, 132 Mass. 261, 263. death, and, after relating the facts revealed by the autopsy, may give his opinion, based thereon, as to the cause and mode of death.35 In order that evidence of the result of an autopsy shall be received it is not absolutely necessary for the prosecution to account for the whereabouts of the viscera of the deceased during the whole period which separates their removal from the body at the morgue or elsewhere by an undertaker or physician, and the post mortem examination. In the absence of evidence to the contrary it will be presumed that the viscera remained in proper custody during this period.36 The mere fact that the autopsy was made some time after the death will not exclude its results as evidence unless the delay was great, and the condition of the body at the autopsy was such that it was impossible to determine whether its condition was attributable to ante-mortem or post-mortem causes.87 One of several physicians who conducted an autopsy may prove what was done by the others, and what appeared as the result of a manual investigation by another.38 A physician who has performed the autopsy and has made an expert examination of the stomach of deceased may state the probable length of time intervening between the time the deceased had eaten supper until his death.39 An expert who has heard the autopsy described may be asked if, in his opinion, it was properly conducted, and he may be also asked whether it is possible for a physician to determine, on the facts which were observed, the exact point of time a poison which was discovered began to operate." A physician may, though a person who is not familiar with anatomy can not, give an opinion of a person's sex, based upon his examination of a skeleton.42 33 40 "People v. Willson, 109 N. Y. 345, 354, 16 N. E. 540. 39 State v. Mortensen, 26 Utah 312, 73 Pac. 562. 38 State v. Merriman, 34 S. Car. 16, 12 S. E. 619, 626; proceedings at inquest, see Elliott Evidence, § 3037; admissibility of evidence of accused at coroner's inquest, see 70 L. R. A. 33, note; admissibility of coroner's finding to show cause of death, see 68 L. R. A. 285, note. 36 State v. Daly, 210 Mo. 664, 109 S. W. 53. 40 State v. Moxley, 102 Mo. 374, 386, 14 S. W. 969, 15 S. W. 556. "Hartung v. People, 4 Park. Cr. (N. Y.) 319, 325, 327. 42 Wilson v. State, 41 Tex. 320, 323325. 43 § 314. Variance in proof of means or weapon producing death.— The substance of homicide being the felonious killing, proof of a killing, in any manner or by any means, that correspond substantially with the indictment, is sufficient. All the details of the offense need not be proved precisely as alleged. Proof of a shooting with a pistol will sustain an averment of shooting with a gun and vice versa, and proof of killing with a dagger or bowie-knife will sustain an averment of death from stabbing with a dirk, sword, or similar weapon. But proof of a knife will not sustain an allegation of killing by shooting, and, as a rule, where the killing is alleged to have been with a particular weapon, proof of a totally diverse weapon is a fatal variance.** Proof of strangling with a scarf is sufficient where strangling with the hands was alleged. Allegations of the place or nature of wounds are generally immaterial.* 46 Evidence that a weapon, similar to that with which the deceased was slain, was seen near the defendant's house shortly before the homicide and subsequently disappeared, or that defendant borrowed, purchased, stole,5° had in his possession,51 or practiced 49 43 Commonwealth V. Webster, 5 Cush. (Mass.) 295, 321, 322, 52 Am. Dec. 711n; Rodgers v. State, 50 Ala. 102, 104; State v. Lautenschlager, 22 Minn. 514, 522; Turner v. State, 97 Ala. 57, 58, 12 So. 54; State v. Smith, 32 Me. 369, 373, 54 Am. Dec. 578. "Hernandez v. State, 32 Tex. Cr. 271, 22 S. W. 972; Jones v. State, 137 Ala. 12, 34 So. 681. 45 15 Witt v. State, 6 Cold. (Tenn.) 5, 8; Reg. v. Warman, 2 Car. & K. 195, I Den. C. C. 183. 46 Thomas v. Commonwealth (Ky.), 20 S. W. 226, 14 Ky. L. 288; Rex v. Waters, 7 Car. & P. 250, 1 Moody C. C. 457. 47 Commonwealth v. Coy, 157 Mass. 200, 214, 32 N. E. 4; State v. Waller, 88 Mo. 402, 404; Nelson v. State, I Tex. App. 41. 48 State v. Brabham, 108 N. Car. 793, 794, 13 S. E. 217. 48 "Finch v. State, 81 Ala. 41, 49, I So. 565; Webb v. State, 138 Ala. 53, 34 So. 1011; Glass v. State, 147 Ala. 50, 41 So. 727; People v. Del Vermo, 192 N. Y. 470, 85 N. E. 690; Arnwine v. State, 54 Tex. Cr. 213, 114 S. W. 796, 802; People v. Haxer, 144 Mich. 575, 108 N. W. 90; McKinney v. State, 49 Tex. Cr. 591, 96 S. W. 48. The question on cross-examination of the accused "What did you have the gun for?" is competent as bearing on motive. Hill v. State, 156 Ala. 3. 46 So. 864. 50 People v. Rogers, 71 Cal. 565, 567. 568, 12 Pac. 679; People v. M'Kay, 122 Cal. 628, 55 Pac. 594. 51 Nicholas v. Commonwealth, 91 Va. 741, 21 S. E. 364; Walsh v. People, 88 N. Y. 458, 466; Collins v. State, 138 Ala. 57, 34 So. 993; Webb v. State, 138 Ala. 53, 34 So. 1011; Smith v. State, 165 Ind. 180, 74 N. using,52 a similar weapon, is always receivable as relevant to show preparation to commit a homicide. Evidence of the finding of weapons, known to belong to the defendant, near where the dead body was found,53 or the testimony of a witness who is familiar with firearms, as to the kind of gun by which a wound was inflicted,54 or that a jacketed bullet would probably produce infection and inflammation, that a gun or pistol belonging to the defendant had55 or had not been recently used, is admissible.57 56 So a person familiar with firearms may be allowed to give his opinion that, judging from the report he heard, the weapon used was a pistol.5 58 E. 983; Rollings v. State (Ala. 1909), 49 So. 329; Morgan v. Territory, 16 Okla. 530, 85 Pac. 718; Poe v. State, 155 Ala. 31, 46 So. 521; Richardson v. State, 145 Ala. 46, 41 So. 82; Smith v. Commonwealth (Ky.), 92 S. W. 610, 29 Ky. L. 231; State v. Ruck, 194 Mo. 416, 92 S. W. 706; Johnson v. Commonwealth (Ky.), 93 S. W. 581, 29 Ky. L. 442; Hardy v. Commonwealth (Va. 1910), 67 S. E. 522; Graham v. State (Tex. Cr. App.), 123 S. W. 691. 53 Bolling v. State, 54 Ark. 588, 596, 16 S. W. 658; Burton v. State, 18 So. 284, 107 Ala. 108; Allen v. Commonwealth (Ky.), 82 S. W. 589, 26 Ky. L. 807. a Harper v. State, 129 Ga. 770, 59 S. E. 792. 55 Meyers v. State, 14 Tex. App. 35, 39, 48. Non-expert permitted to testify in Patton v. State, 156 Ala. 23, 46 So. 862. 56 People v. Driscoll, 107 N. Y. 414, 420, 14 N. E. 305. Where the defendant, when arrested, had in his possession a revolver containing four empty shells, it is proper to prove the caliber of the weapon, that a witness heard four reports of fire arms in the direction of the house where the killing occurred, that, on going there, bullet holes were found in the ceiling of the room and the description of the holes. State v. Fitzgerald, 130 Mo. 407, 32 S. W. 1113. 63 State v. Craemer, 12 Wash. 217, 40 Pac. 944; State v. Jeffries, 210 Mo. 302, 109 S. W. 614; Yancey v. State, 45 Tex. Cr. 366, 76 S. W. 571; State v. Smalls, 73 S. Car. 516, 53 S. E. 976. Cf. Thornton v. State, 113 Ala. 43, 21 So. 356, 59 Am. St. 97, where a memorandum book and pencil found at the locus in quo and shown to have belonged to the defendant was admitted in evidence against him. "Franklin v. Commonwealth, 48 S. 140 Ala. 16, 37 So. 259. W. 986, 20 Ky. L. 1137. 57 If it is proved that the defendant carried a concealed weapon similar to that with which the homicide was committed, he cannot show that it is a custom, where he resides, to carry such weapons, though he may prove his habit and motive in going armed. Creswell v. State, 14 Tex. App. 1, 18. Nor usually should the accused be permitted to state why he carried a concealed weapon. Gregory v. State, 58 State v. Graham, 116 La. 779, 41 So. 90. |