#### Stevens *v.*The State.

*Murder.*

(Decided November 28, 1912.

60 South. 459.)

1. *Evidence; Opinion; Qualification.*— Where it did not appear that the witness, an expert medical man, had had an opportunity to learn the evidence in the case, except by hearsay, his opinion of the effect of a lick from a buggy whip upon a woman, to the effect that it would have to be greater than the evidence in the case has shown, was properly excluded.

2. *Same; Expert Testimony.*— Expert testimony as to the effect of a lick or a blow, to the effect that it had to be greater than the evidence in this case has shown, became an opinion of the case on tbe evidence as given by the witness, and was, therefore, an invasion of the functions of the jury.

3. *Charge of Court; Argumentative.*— Charges basing an acquittal unless the jury were so convinced of guilt by the evidence that they would each venture to act upon the decision in matters of highest concern or importance to his own interest, are properly refused as argumentative.

4. *Same; Weight and Effect of Evidence.*— A charge asserting that the only foundation for a verdict of guilt was that the entire jury should believe from the evidence beyond a reasonable doubt and to a moral certainty that defendant is guilty as charged in the indictment, to the exclusion of every probability of his innocence, and every reasonable doubt of his guilt, and if the prosecution has failed to furnish the aforesaid measure of proof, ,and to impress the minds of the jury with such belief of the accused’s guilt, the jury should acquit, was properly refused as tending to lead the jury to believe that the verdict could be based only upon the evidence offered by the prosecution.

Appeal from Monroe Law and Equity Court.

Heard before Hon. W. J. McCorvey.

*7Sam Stevens was convicted of assault and battery, and he appeals.

Affirmed.

The killing was alleged to have been the result of striking Betty Stevens Avith a buggy Avhip.

Charge 3 is as folloAVs: “Before the jury can convict the defendant, they must be satisfied not only to a moral certainty not only that the proof is inconsistent with defendant’s guilt, but that it is Avholly inconsistent with every other rational conclusion, and unless the jury are so convinced by the evidence of the defendant’s guilt that they Avould each venture to act upon that decision in matters of the highest concern and importance to his interests, then they must find the defendant not guilty.”

Charge 4: “I charge you, gentlemen, that the only just foundation for a verdict of guilty in this case is that the entire jury shall believe from the evidence, beyond a reasonable doubt, and to a moral certainty, that the defendant is guilty as charged in this indictment, to the exclusion of every probability of his innocence, and every reasonable doubt of his guilt; and if the prosecutor has failed to furnish the aforesaid measure of proof, and to impress the minds of the jury with such belief of defendant’s guilt, the jury should find him not guilty.”

EL H. McClelland, and J. D. Ratcliffe, for appellant.

The proper predicate Avas not laid for the admissions' of dying *declarations.*— Young *v. The*State, 95 Ala. 4; *Justice v. The*State, 99 Ala. 181. The court ■erred in excluding the opinion of the *physician.*— Simon *v. The*State, 108 Ala. 27; *Page v. The*State, 61 Ala. 16. The charges requested should have been *given.*— Brown *v. The*State, 118 Ala. Ill; *Burton v. The*State, 107 Ala. 108.

R. C. Brickell, Attorney General, and W. L. Martin, Assistant Attorney General, for the State.

There *8was sufficient predicate for dying *declarations.*— Hen-in-*burg v. The State,*153 Ala. 13; *Sanders v. The State, 2*Ala. App. 13. The court was not in error in excluding the opinion of the physician on the effect of the evidence as shown in this *case.*— Page *v. The State,*61 Ala. 66; *Gunter v. The State,*83 Ala. *96;*62 Miss. 405, 7 Gray 467; 82 U. S. 9. Charge 3 was properly refused. *—Shelton v. The State,*144 Ala. 106. Charge 4 was properly *refused.*— Welch *v. The State,*156 Ala. 112; *Hails v. The State,*122 Ala. 85

WALKER, P. J.

Some of the rulings of the trial court which are criticised in the brief of the counsel for the appellant are so obviously unobjectionable or not prejudicial to the appellant that a discussion of them is not deemed necessary.

Dr. G. W. Gaillard, a witness for the defendant, testified as an expert in reference to. the effect upon a pregnant woman of a blow inflicted upon her with a buggy whip. In the course of his examination on this subject by the defendant’s counsel, he made the following statement : “In other words, she could not be up and attending to domestic duties afterwards, and the effect upon the woman would have to be greater than the evidence in this case has shown.” Thereupon, as stated by the bill of exceptions, the state moved to exclude the testimony about the result of the evidence. An exception was reserved to the granting of this motion. It is not made to appear that the court was in error in this ruling. For anything shown to the contrary by the bill of exceptions, it may have been justifiable from the fact, within the knowledge of the court, that the witness could have had no opportunity to learn what the evidence in the case was except from hearsay. Besides, to permit such an expression by a witness as to the effect of the *9evidence that had been adduced would amount to allowing him to give his opinion of the case on trial, to exercise a function which properly may be exercised by the jury *alone.*— Gunter *v. State,*83 Ala. 96, 107, 3 South. 600; *Page v.*State, 61 Ala. 16.

Charge 3, requested by the defendant, was properly *refused.*— Shelton *v. State,*144 Ala. 106, 113, 42 South. 30; *Amos v. State,*123 Ala. 50, 26 South. 524.

The refusal to give charge 4, requested by the defendant, may be justified because of the tendency of its last paragraph to lead the jury to conclude that the verdict could properly be based upon a consideration of a part only of the evidence in the case, that offered by the pros*ecution.*— Nicholson *v. State,*117 Ala. 32, 23 South. 792; *Welch v. State,*156 Ala. 112, 46 South. 856.

Affirmed.