The state should always be allowed to prove that there was found, either upon the person of the accused or in his house at the time of his arrest, if not too remote, a weapon similar to that with which the homicide was committed. Thus, it is proper for the state to show that the accused told a witness his pistol was at his house, and that it was dug up where he had buried it some distance from his house; but it is clear that evidence of the finding of a pistol under such circumstances would have no force unless it was of the caliber of that used.59 Evidence that a pistol was found in the possession of the accused corresponding in caliber with the bullet taken from the body of the deceased was admitted where the accused was arrested six months after the crime. There must be some evidence, however, from which the jury may reasonably infer that the pistol found in the possession of the accused was that used in the commission of the crime.1 The fact of the finding of a pistol cartridge, loaded or not, or of a pistol near the scene of the shooting shortly thereafter, or, if the shooting was done with a gun, the presence of cartridges used is always competent, though there is no evidence to show that the accused owned these articles. Such proof is usually received in cases where the state has to rely on circumstantial evidence.62

60

Where an article of a peculiar and exceptional nature is found near the scene of the crime, a witness may identify it with an article which is proved to have been owned by or to have been in the possession of the accused before the crime. If the state shows that the accused was in the possession of a particular weapon after returning from the homicide, and it is impossible that he could have disposed of, or concealed it except in a particular place, evidence that this place has been searched and the weapon not found, was admitted. If there is a question as to the caliber of the bullet by which the wound was made it is proper to permit a physician to testify that on his examination of the

64

312.

Nickles v. State, 48 Fla. 46, 37 So.

03 Richards v. Commonwealth, 107 Va. 881, 59 S. E. 1104.

Burton v. State, 115 Ala. 1, 22 So. 585.

04 State v. Kehr, 133 Iowa 35, 110 N. W. 149.

wound he could not tell the caliber of the cartridge.65 A physician may always testify that the wound which he has discovered could not have been made with the gun or pistol of the accused.““

§ 315. Weapons as evidence.-The state may introduce in evidence the weapon with which it is charged the homicide was committed if properly identified as belonging to the defendant," or bullets taken from the body of the deceased," or cartridges of the caliber of a rifle apparently carried by the accused in his flight after the crime and found on a highway some distance from the scene of the crime,70 or a bullet of the size and caliber of the pistol owned by the accused found near the scene of the crime, or any weapon found in the possession of the accused or his criminal associates, which is similar in form and character to that which was employed. A weapon found on the person of the deceased a few minutes after the homicide has been

71

Humphrey v. State, 74 Ark. 554, 86 S. W. 431.

Franklin v. Commonwealth, 105 Ky. 237, 48 S. W. 986, 20 Ky. L. 1137.

67

72

discovery. Ezell v. State, 103 Ala. 8, 15 So. 818, 819.

6s State v. Tippet, 94 Iowa 646, 63 N. W. 445, 447; Roberts v. State, 123 Ga. 146, 51 S. E. 374; Tolliver v. State, 53 Tex. Cr. 329, 111 S. W.655.

People v. Weber, 149 Cal. 325, 86 Pac. 671; People v. Morales, 143 Cal. 550, 77 Pac. 470.

70 Harn v. State, 12 Wyo. 80, 73 Pac. 705.

"Hickey v. State, 51 Tex. Cr. 230, 102 S. W. 417.

72

Siberry v. State, 133 Ind. 677, 685, 33 N. E. 681, 683; Thomas v. State, 67 Ga. 460, 465; Crawford v. State, 112 Ala. 1, 21 So. 214; McBrayer v. State (Tex. Cr., 1896), 34 S. W. 114; State v. Cushing, 14 Wash. 527, 45 Pac. 145, 53 Am. St. 883; Burton v. State, 107 Ala. 108, 18 So. 284; State v. Bean, 77 Vt. 384, 60 Atl. 807; Fay Rodriquez v. State, 32 Tex. Cr. v. State, 52 Tex. Cr. 185, 107 S. W. 259, 22 S. W. 978; State v. Gallman, 55; Fuller v. State, 147 Ala. 35, 41 79 S. Car. 229, 60 S. E. 682. A witSo. 774; Long v. State, 48 Tex. Cr. ness may state the result of a com175, 88 S. W. 203; State v. Sherouk, parison of shot taken from defend61 Atl. 897, 78 Conn. 718, not reported ant's gun with other shot found in in full; People v. Lagroppo, 90 App. the body of deceased. Granger v. Div. (N. Y.) 219, 86 N. Y. S. 116; State (Tex. Cr., 1895), 31 S. W. 671; means used and cause of death, see Lemons v. State, 97 Tenn. 560, 37 S. Elliott Evidence, § 3027; articles in W. 552; Dean v. Commonwealth, 32 evidence, 3028. See § 48. A Gratt. (Va.) 912, 922; State v. Lem broken gun found near the locality Woon (Ore. 1910), 107 Pac. 974; of the crime, and apparently the People v. Mar Gin Suie (Cal. App. instrument of death, is admissible, 1909), 103 Pac. 951. though it was again broken after its

74

received in evidence. It is improper to allow experiments with weapons in the presence of the jury, nor is expert evidence admissible to show that a cartridge is marked in such a way as to indicate it had been fired from a pistol belonging to the deceased."

On the other hand, if a number of shells are found on the accused which are marked with a peculiar mark, and it appears that only two shots were fired, two empty shells bearing the mark. and which were found near the scene of the crime, should be received in evidence."

§ 316. Identity of the deceased.-The identity of the deceased with the party named in the indictment must be proved beyond a reasonable doubt. And where the body of the deceased has been wholly destroyed so that an ordinary identification is impossible. as, for example, where it has been destroyed by fire in the burning of a house, it is proper to permit great latitude to the prosecution in the presentation of evidence of identity." The name must be proved as alleged. Failure to prove the christian name of the deceased is fatal,78 though this variance may be cured if the occupation and surname are proved as alleged." And when the name is proved as idem sonans, with respect to that alleged, slight divergencies in spelling will be disregarded.80

§ 317. The identification of the body of the deceased.-The structure and condition of the teeth of a deceased person, by reason of the imperishable nature of the materials which compose them, furnish an excellent means of identification. And a witness who

73 Watson v. State, 52 Tex. Cr. 85, 105 S. W. 509.

Shepherd v. People, 72 Ill. 480, 481; State v. Lincoln, 17 Wis. 597. 599, 601.

80 Girous v. State, 29 Ind. 93, 94; State v. Witt, 34 Kan. 488, 494, 8 Pac. 769; State v. Lincoln, 17 Wis. 597.

"United States v. Ball, 163 U. S. 662, 41 L. ed. 300, 16 Sup. Ct. 1192; Polin v. State, 14 Neb. 540, 545, 16 N. W. 898. People v. Mitchell, 94 Cal. 550, 599. The fact that the deceased was 555, 29 Pac. 1106. a white man may be proved by the

10 Fuller v. State, 147 Ala. 35, 41 confession of the accused. Isaacs v. So. 774.

United States, 159 U. S. 487, 40 L. ed. 229, 16 Sup. Ct. 51.

was acquainted with the appearance and conformation of the teeth of the person in question may describe their condition of soundness or decay, and point out whatever he may have observed which was abnormal or peculiar in them, as, for example, fillings, etc. This evidence may then be followed up by the testimony of experts, preferably dentists or dental surgeons, who have made an examination of the teeth after death. The jury may then determine as an inference from the points of similarity, if any, the identity of the remains with the person whose death is under consideration.81

$318. Expert testimony and the employment of a chemical analysis in cases of homicide by poisoning.-A conviction of homicide by poisoning will stand though every fact, except, perhaps, the death of the party, which must be proved by direct evidence, is sustained by circumstantial evidence alone. 82 It is usually indispensable to prove that the accused was in possession at the time of the crime of the poison alleged to have been administered by him.83 A chemical analysis, an autopsy and the aid of expert testimony, though very desirable, are never indispensable.

84

A physician cannot testify as an expert on symptoms of poisoning who has never treated or seen a case of poisoning in his practice, and whose knowledge is only such as he has obtained by reading books and from his instruction at the medical school. S A properly qualified medical witness may state that, in his

"The subject is fully discussed in Rehfuss on Dental Jurisprudence, 89, PP. 17-32. See also, Udderzook v. Commonwealth, 76 Pa. St. 340; Rex v. Clewes, 4 Car. & P. 221; Commonwealth v. Webster, 5 Cush. (Mass.) 295, 52 Am. Dec. 711n; and ante, § 7. * Zoldoske v. State, 82 Wis. 580, 597, 52 N. W. 778; Commonwealth v. Kennedy, 170 Mass. 18, 48 N. E. 770.

86

State, 82 Miss. 498, 34 So. 360, as to necessity for proof of the corpus delicti.

"Johnson v. State, 29 Tex. App. 150, 153, 15 S. W. 647; Polk v. State, 36 Ark. 117, 126; State v. Slagle, 83 N. Car. 630, 631; Nordan v. State, 143 Ala. 13, 39 So. 406; Levering v. Commonwealth (Ky.), 117 S. W. 253. Soquet v. State, 72 Wis. 659, 662665, 40 N. W. 391. Contra, People v. Thacker, 108 Mich. 652, 66 N. W. 562.

86

89

88

opinion, death was caused by a certain poison,87 that he found a certain poison in the stomach of the deceased, or may describe symptoms which accompany poisoning, or may state that symptoms described in a hypothetical question indicate the presence of arsenic or other poison."0

He cannot, perhaps, state the result of a chemical analysis unless he has had some special experience in chemical research and a knowledge of the science."1

The competency of the chemical expert is always a judicial question, though his knowledge and experience may be brought out to enable the jury to give proper weight to his evidence.92 It is now very customary in criminal trials to employ trained analysts, or experienced physicians who have made a specialty of the study of organic chemistry, to conduct the analysis of the contents of the viscera where poisoning is suspected," and obviously the opinions of such persons would have greater weight with the jury than those of ordinary physicians.**

One who is by occupation a chemist and a professor of chemistry in a college and who has for many years made a study of poisons, may testify as to the effect of poison on the human system and also may state a particular poison in his opinion caused the death of the deceased, though he is neither a druggist