decided, that for false evidence so given, a witness may be indicted for perjury. R. v. Pedley, 1 Leach, 325; R. v. Schlesinger, 10 Q. B. 670, 59 E. C. L. Examination as to opinion. Although, in general, a witness cannot be asked what his opinion upon a particular question is, since he is called for the purpose of speaking as to facts only; yet where matter of skill and judgment is involved, a person competent to give an opinion may be asked what that opinion is. Thus an engineer may give his opinion on a matter with which he is specially acquainted. Walker v. State, 58 Ala. 393.] The testimony of a witness, that he thought the plaintiff told him that a certain sum of money had been paid to the plaintiff was very confident he said so, but would not swear that he did-is a statement of the strength of the recollection of a fact by the witness, and is admissible evidence, Lewis v. Freeman, 17 Me. 260. The only impression which a witness should be allowed to state should be that of a fact feebly impressed upon his memory, and not the result of a process of reason and judgment. Crowell v. Western Reserve Bank, 3 O, 406. [A witness cannot give his opinion as to the person meant in a libel. People v. Parr, 42 Hun, (N. Y.) 313.] The testimony of a witness will not be rejected because he accompanies it with the expression, "such is the impression of my mind," as every witness must swear according to the impression of his mind more or less strong. Franklin v. City of Macon, 12 Ga. 257. S. On a trial for assault with intent to ravish, the prosecutrix cannot testify as to the prisoner's intentions. Scott v. State, 48 Ala. 420. 1 Rochester v. Chester, 3 N. H. 349; Forbes v. Carothers et al., 3 Y. 527; Carmalt v. Post, 8 W. 406; Gentry v. McMinnis, 3 Dana, 382; Bullock v. Wilson, 5 Porter, 338; Kellogg v. Krauser, 14 S. & R. 137; Morse v. State, 6 Conn. 9; People v. De Graff, 1 Wheel. C. C. 205. [People v. Rolfe, 61 Cal. 540. See Smith v. State, 55 Ala. 1.] The opinions of witnesses based upon a state of facts sworn to by others, are not proper evidence except in matters lying peculiarly within the knowledge of experts. Paige ". Hazard, 5 Hill, 603. In questions of identity and personal skill, a witness may testify to a belief not founded in knowledge, but the rule is otherwise in respect to facts which may be supposed to be within the compass of memory. Carmalt v. Post, 8 W. 406. [State v. Babb,76 Mo. 501; People v. Williams, 29 Hun, (Ñ. Y.) 520. On the question of a prisoner's identity it is error to reject testimony that a person who knew him, met a stranger, who so closely resembled him that he twice started to speak to him, believing him to be the prisoner. White . Commonwealth, 80 Ky. 480; State v. Witham, 72 Me. 531. On impression of identity. Woodward v. State, 4 Baxter, (Tenn.) 322.] An opinion expressed by the crew of a vessel, in consultation with the master, on the soundness of a link in a chain cable which they were paying out to prevent her from dragging her anchor, is admissible in proof of its adequacy to the ordinary exigencies of the navigation. Reed v. Dick, 8 W. 479. Testimony of the resemblance of the child to the alleged father, or the want of it, not being matter of fact, but merely of opinion, is not admissible. Kenniston v. Rowe, 16 Me. 38. On a question of mental capacity, the opinion of an intimate acquaintance, not a medical man, is competent when connected with facts and circumstances within his knowledge, and disclosed by him in his testimony as the foundation of his opinion. Culver v. Haslam, 7 Barb. 314. It is not, in general, competent for witnesses to state opinions or conclusions from facts, whether such facts are known to them or derived from the testimony of others. The exceptions to the rule are confined to questions of science, trade, and a few others of the same nature. Morehouse v. Matthews, 2 Comst. 514. [Debbs v. State, 43 Tex, 650; State v. Stickley, 41 Ia. 232; Lambkin v. State, 12 Tex. App. 341. A witness cannot testify to an alibi from his belief that the defendant was in the room in which he was sleeping all night. Bennett v. State, 52 Ala. 370. But see State v. Phair, 48 Vt. 366.] A witness may be asked whether in his opinion the prisoner was intoxicated at the time of the offence. People v. Eastwood, 4 Ker. 562. [Pierce r. State, 53 Ga. 365; State v. Huxford, 47 Ia. 16. But they cannot give their opinion of mental capacity from having seen defendant drunk on other days than that of the murder. Nevling . Commonwealth, 98 Pa. St. 322.] A witness may be asked and may state his opinion as to the time of day when an event took place, and he may state his opinion as to the length of time which elapsed between two events. Campbell v. State, 23 Ala. 44. The mere opinion of a witness with regard to the age of a may be called to say what, in his opinion, was the cause of a harbor being blocked up. Folkes v. Chad, 3 Dougl. 157, 26 E. C. L.; 4 T. R. 498. In a variety of other cases, also, such evidence has been admitted. "Many nice questions," observes Lord Mansfield, "may arise as to forgery, and as to the impression of seals, whether the impression was made from the seal itself, or from an impression in wax. In such cases I cannot say that the opinion of seal-makers is not to be taken." Folkes v. Chad, 3 Dougl. 159, 26 E. C. L. So it seems is the opinion person from his appearance, unaccompanied by the facts on which that opinion is founded, is inadmissible as evidence. Morse v. State, 6 Conn. 9. [Commonwealth v. O'Brien, 134 Mass. 198.] A party has no right to ask the opinion of a professional witness upon any question except one of skill or science. People v. Bodine, 1 Denio, 282; Woodin v. People, 1 Park..C. R. 464; People v. Thurston, Id. 49. When the opinion of witnesses not experts are admissible, see Cooper v. State, 23 Tex. 331. [State v. Folwell, 14 Kan. 105; Commonwealth v. Sturtevant, 117 Mass. 122.] The opinions of a witness on a question not involving medical skill or science is inadmissible as evidence. Woodinv. People, 1 Park. C. R. 464. [But the correspondence between footprints seen at the time and place of crime and the feet of the prisoner is a matter of fact to which any witness observing can testify. Young v. State, 68 Ala. 369; Murphy v. People, 63 Ñ. Y. 590. The witness should not be allowed to give his opinion as to whether the prisoner's foot made the track. Clough v. State, 7 Neb. 320. Nor where the defence is justifiable homicide, as to whether accused was in imminent danger. State v. Rhoads, 29 O. St. 171. Nor on cross-examination as to whether a surgeon who dressed deceased's wound was drunk. Batten v. State, 80 Ind. 394. Nor as to whether a homicide was unprovoked. Kennedy v. Commonwealth, 14 Bush, (Ky.) 340.] Medical testimony, as to the injuries likely to be produced under a given state of facts, is properly admitted, where the witness states the precise facts on which he bases his opinion, and the court does not withdraw from the jury the right to consider whether these facts are established by the testimony. Wendell v. Troy, 39 Barb. 329. An expert may not only testify to opinions but may state general facts which are the result of scientific knowledge or general skill. Emerson v. Lowell Gas Light Co., 6 Allen, 146. An expert cannot in an opinion assume facts which are not the subject-matter of professional knowledge, but questions for the jury. Moore v. State, 17 O. St. 521. On the trial of an indictment for murder, a surgeon is not competent to give an opinion as an expert as to the probable position of the body of the deceased when struck. Kennedy v. People, 39 N. Y. 245. A medical witness cannot express an opinion upon the evidence in the case. State v. Felter, 25 Ia. 67. A medical expert may give his opinion on a supposititious statement made to him as illustrative of the case on trial. Perkins v. Concord Railroad, 44 N. H. 223; Fairchild v. Bascomb, 35 Vt. 398. As to standard medical works as evidence: See Luning v. State, 1 Chand. 178; Merkle v. State, Shep. Sel. Cas. 45, 37 Ala. 139; State v. O'Brien, 7 R. I. 336. As to the testimony of experts generally: See State v. Ward, 39 Vt. 225; Caleb v. State, 39 Miss. 721; Rosenheim v. America Ins. Co., 33 Mo. 230; Johnson v. State, 37 Ala. 457; State v. Shinborn, 46 N. H. 497; Commonwealth v. Choate, 105 Mass. 451; Ardesco Oil Co. v. Gilson, 63 Pa. St. 146; Shellon v. State, 34 Tex. 662. S. On the market value of any property: See Todd v. Warner, 48 Howard, (N. Y.) 234. The opinion of a witness ignorant of anatomy is inadmissible as to the sex of a person from an examination of the skeleton. Wilson v. State, 41 Tex. 320. An inference necessarily arising from a set of facts, is not a mere expression of opinion, but is admissible as a statement of fact. Lewis v. State, 49 Ala. 1; Matteson v. State, 55 Ala. 224. Familiarity with the prisoner's handwriting will not render the opinion of a witness, that he could not have committed the forgery, competent. Burress v. Commonwealth, 27 Gratt. (Va.) 934. Nor can a witness in order to prove that a forged note was knowingly uttered by A. testify that he had seen another note in A.'s possession which in his opinion professed to have the signatures of the same parties. State v. Breckenridge, 67 Ia. 204. A witness skilled in any specialty may testify in regard to it. Wynne v. State, 56 Ga. 113. A fireman is not an expert on the influence of wind in directing the course of a fire, or on fires creating their own currents. State v. Watson, 65 Me. 74. A chemist and toxicologist is an expert on poisons, though not a physician. State v. Cook, 17 Kan. 392. of any person in the habit of receiving letters, of the genuineness of a post-mark. See Abbey v. Lill, 5 Bingh. 299, 15 E. Č. L. So antiquaries as to the date of ancient handwriting. Tracy Peerage, 10 Cl. & Fin. 191. So the opinion of a ship-builder on a question of seaworthiness. Thornton v. Roy. Exch. Ass. Co., Peake, N. P. C. 25; 1 Camp. 117; Chapman v. Walton, 10 Bingh. 57, 25 É. C. L. However, the Court of Queen's Bench in Campbell v. Rickards, 5 B. & Ad. 840, 27 E. C. L., held (overruling several previous decisions), that the materiality of a fact, concealed at the time of insuring, was a question for the jury alone. "Witnesses conversant in a particular trade may be allowed to speak to a prevailing practice in that trade; scientific persons may give their opinion on matters of science; but witnesses are not receivable to state their views on matters of legal or moral obligation, nor on the manner in which others would probably be influenced, if the parties acted in one way rather than another." It is the constant practice to examine medical men as to their judgment with regard to the cause of a person's death, who had suffered violence; and where, on a trial for murder, the defence was insanity, the judges, to whom the point was referred, were all of opinion that in such a case a witness of medical skill might be asked whether, in his judgment, such and such appearances were symptoms of insanity, and whether a long fast, followed by a draught of strong liquor, was likely to produce a paroxysm of that disorder in a person subject to it? Several of the judges doubted whether the witness could be asked his opinion on the very point which the jury were to decide, viz., whether, *148] *from the other testimony given in the case, the act with which the prisoner was charged was, in his opinion, an act of insanity. R. v. Wright, Russ. & Ry. 456. On an indictment for cutting and maiming, Park, J., on the authority of the above case, allowed a medical man, who had heard the trial, to be asked whether the facts and appearances proved showed symptoms of insanity. R. v. Searle, 1 Moo. & R. 75. And it seems that in McNaughten's case such questions were allowed to be asked. 3 Russ. Cri. 571, 5th ed. (h). A question may arise in these cases, whether, where a witness, a medical man, called to give his opinion as matter of skill, has made a report of the appearances or state of facts at the time, he may be allowed to read it as part of his evidence. The practice in Scotland, on this point is as follows: The scientific witness is always directed to read his report, as affording the best evidence of the appearances he was called on to examine; yet he may be, and generally is, subjected to a further examination by the prosecutor, or to a cross-examination on the prisoner's part; and if he is called on to state any facts in the case, unconnected with his scientific report, as conversations with the deceased, confessions made to him by the prisoner, or the like utitur jure communi, he stands in the situation of an ordinary witness, and can only refer to the memoranda to refresh his memory. Alison's Prac. Cr. Law of Scotland, 541. So also it seems skilled witnesses As to the evidence of experts generally, see Norman v. Wells, 17 Wend. 136; Cattrill v. Myrick, 3 Fairfield, 222; Boies v. McAllister, Id. 308; Lester v. Pittsford, Proof of previous conviction of witness may be given 153 153 When the witness is privileged on the ground of confidence 153 public policy 157 (1) Persons in a judicial capacity 157 157 159 160 161 (2) Disclosures by informers, etc. Objection to answer-how taken Effect of refusing to answer Use which may be made of answer where privilege not claimed or 161 Nature of privilege. We have already considered what questions may be put to a witness; every such question the witness is bound to answer, unless he can show that he is privileged from so doing, from some peculiarity in his situation. There is a great difference between privilege and incompetency, though the difference has not always been kept in view. An incompetent witness cannot be examined, and, if examined inadvertently, his testimony is not legal evidence; but a privileged witness may always be examined, and his testimony is perfectly legal if the privilege be not insisted on. If a witness be compelled to answer in cases where he claims and ought to have been allowed his privilege, that is not a ground for reversing a conviction upon complaint of a party to the suit, as the only person injured is the witness. R. v. Kinglake, 11 Cox, C. C. (Q. B.) 499. The privilege of a witness arises in three ways: first, on the ground that to answer the question would expose him to consequences so injurious that he ought to be allowed to decline doing so; secondly, that to answer the question would be a breach of confidence, which he ought not to be forced to commit; thirdly, that to compel the witness to answer the question would be against public policy. When the witness is privileged on the ground of injurious consequences of a civil kind. It has generally been considered that a witness is privileged from answering any question, the answer to which might directly subject him to forfeiture of estate.1 [*150 A witness may be compelled to testify against his pecuniary interest. Quinlan v. Davis, 6 Whart. 169. A witness may be compelled to give testimony, the tendency of Forfeiture is now abolished except as to outlawry (see 33 & 34 Vict. c. 23, s. 1). And it is considered by Mr. Phillips (2 Phill. Ev. 492, 10th ed.), that the existence of this rule is impliedly recognized by the 46 Geo. 3, c. 87, which, after reciting that " doubts had arisen whether a witness could by law refuse to answer a question relevant to the matter in issue, the answering of which had no tendency to accuse himself, or to expose him to any penalty or forfeiture, but the answering of which might establish, or tend to establish that he owed a debt, or is otherwise subject to a civil suit at the instance of his majesty or of some other person or persons," it was declared and enacted, "that a witness cannot by law refuse to answer any question relevant to the matter in issue, the answering of which has no tendency to accuse himself and to expose him to a penalty or forfeiture of any nature whatsoever, by reason only or on the sole ground that the answering of such question may establish or tend to establish that he owes a debt, or is otherwise subject to a civil suit, either at the instance of his majesty or any other person or persons." It will be seen that this statute also excepts cases where the witness is exposed to a penalty. A doubt might arise whether this exception extends to penalties to be recovered by a common informer, or otherwise in a civil manner. In none of the reported cases since the statute does the question seem to have arisen, nor is there any very clear indication of what was considered to be the law before the passing of the above statute; the question therefore remains yet to be discussed. When witness is privileged on the ground of injurious consequences of an ecclesiastical kind. Questions subjecting a witness to ecclesiastical penalties have been generally considered as coming within those which he is entitled to decline answering, as under the 2 & 3 Edw. 6, c. 13, s. 2, for not setting out tithes. Jackson v. Benson, 1 Y. & J. 32; on a charge of simony, Brownswood v. Edwards, 2 Ves. Sen. 244; or incest, Chetwynd v. Lindon, Id. 403. But there cannot be a doubt that a judge, in deciding whether or not a witness is entitled to the privilege, would consider whether the danger suggested by the witness was real and appreciable; R. v. Boyes, infra, p. 151; and the mere chance of an obsolete jurisdiction being set in motion would very likely not be considered as entitling the witness to his privilege. which may be to subject him to pecuniary loss. Ward v. Sharp, 15 Vt. 115. That a mere civil inability does not render the witness incompetent, see Gorham v. Carroll, 5 Litt. 221; Black v. Crouch, Id. 226; State v. McDonald, 1 Coxe, 332; Stoddart's Lessee v. Manning, 2 H. & J. 147; Bull v. Loveland, 10 Fick. 9; Baird v. Cochran, 4 S. & R. 397; Nass v. Swearingen, 4 S. & R. 192; Copp v. Upham, 3 N. H. 159; Hays v. Richardson, 1 G. & J. 316; Naylor v. Simmes, 7 Id. 273; Commonwealth г. Thruston, 7 J. J. Marsh. 63; Taney v. Kemp, 4 H. & J. 348; Planters' Bank v. George, 6 Mart. 679, overruling Navigation Co. v. New Orleans, 1 Mart. 23. Contra, Benjamin v. Hathaway, 3 Conn. 528; Storrs v. Wetmore, Kirby, 203; Starr v. Tracey et al., 2 Root, 528; Cook v. Corn, 1 Over. 240; and see Mauran v. Lamb, 7 Cow. 174. A witness is compellable to produce a paper, though it may subject him to pecuniary loss. Bull v. Loveland, 10 Pick. 9. S. |