#### Frederick A. Luning, Pl’ff in Error, *vs.*The State of Wisconsin, Def’t in Error.

. A witness, not skilled in the science or art, touching which his opiri~\ ' ion is asked, is incompetent to give an opinion. He can only ] stato facts within his knowledge, and tho jury must draw conclusions.

/An export, who has heard the whole evidence given in a cause, who *I*is asked an opinion as to tho effect of such -evidence, is inoompo-I tent, in law, to give it; because, in doing so, he must reconcile dis-f orepancies,.and give such weight to conflicting statements as his0,, judgement might suggest.. Allowing such opinion to bo given, would be to usurp the prerogative of tho jury to decide. But an-i l export may, upon a case hypothetically stated to him, give hi* | opimoHr"""^

Medical or scientific hooks may be road by the counsel to the jury by ■ the permission of tho Court, before.which the cause is tried. But tho Court may, in its discretion, prohibit the reading of such books, as a matter of evidence or authority. They cannot bo regarded as having any further force.or authority, than as the opinion of Ipijrned and scientific men,,

*179Error to the Circuit Court of Dodge County-.

The plaintiff in error was indicted in the Washington Circuit, for erecting and keeping up a mili-dam at or near the village of Cedarburg, on a stream passing through that village, by means whereof; the health of the citizens of that village and' vicinity, was injured; and from which arose unpleasant and unwholesome vapors; and on account of which, the inhabitants of that vicinity were'made sick and diseased. A change of- Venue was afterwards made, to Dodge County.

On the trial, the counsel for the plaintiff in error took exceptions to the ruling of the Judge, touching the admis-J sion and exclusion of testimony on either side, and the reading of standard-medical books, and also as to the instructions of the Judge to the jury. The material points of which exception are as follows:

Various witnesses, sworn on the part of the State, and 1 in support of the indictment, were asked by the proseen- J tor the following question; “ What effect has the over--flowing of that land had upon the public health in that vi-; cinity?”

This question was objected, to by the counsel of jhe , plaintiff in error, upon the ground that the witnesses wore, not, and did not claim to be scientific men, or possessed, of -any peculiar skill'to .divine the effect produced i upon, the health of the inhabitants of the vicinity, by the rising-of the water and the flowing the land beyond the natural, boundary of the stream; or, in other words, were not, and did not claim do be, *experts.*

. The Judge overruled the objections, and,; allowed the-witnesses to give their opinion, upon the .principle that they were residents in the vicinity,, and had previously-*180testified as to the health of the resident inhabitants, both before and after the erection of the dam, and had stated the offensive effluvia, which w’as produced by the spreading of the water over a much larger tract of land than was covered by the stream in its natural state.

The counsel of the plaintiff excepted to the decision of the Judge.

On the defence, the plaintiff in error introduced Dr. Whitney, a practicing physician, as a witness, who had heard all the evidence on the part of the State, touching the sickness that was claimed to be the result of the raising the dam. The following question was propounded to him by the counsel for the plaintiff in error: “ You state you have heard all the evidence given on this trial. Now, from that evidence, did Luning’s mill pond, in your opinion, cause the sickness spoken of by the witnesses'!

This question was objected to by the counsel for the State, on the ground that, if the witness answered the question, it could only amount to his own construction of the facts testified to by others, and which would devolve upon him the necessity of reconciling the conflicting evidence given by others, or of placing upon it, a construction suited to his own views and conception of such evidence.

The Judge sustained the objection, and the counsel for the plaintiff in error excepted.

The counsel of the plaintiff in error, on the trial offered to read to the jury, standard medical works, as evidence, or by way of instruction to the jury, as to the engendering, presence, and effect of *malaria*upon the health of those who live in the vicinity.

The counsel for the State objected to the reading of such books, and the Judge sustained the objection.

*181The counsel for the plaintiff in error excepted.

The Counsel for .the plaintiff in error requested the Judge to eharge the jury, that the mill-dam in question, having been erected under, and in virtue of the provisions of. the Statute of the Stale^ providing for, and regulating ;£he construction ©f such works, no indictment could be sustained in the name of the State, for a nuisance which might be created 'thereby, until the Court should have pronounced such law unconstitutional.

The Judge refused so to eharge the jury; and. the ■ counsel took .an exception thereto.

A motion in arrest of judgment, was made by the ■ counsel for the plaintiff in error, on the .argument before this Court, which was based upon the face of the indictment brought up by the writ -of error. The indictment ■ «did not, it was claimed, purport to be in the name of- the • .State of Wisconsin. The decision of that question will be found to have been disposed of, by the Court, in the case of the *State vs.*Delue, reported in this volume.

The jury found the plaintiff in error guilty.

*Holliday,*for plaintiff in error.

*Brown, Att’y*General, and *JL D. Smithy*for defendant in error.

On the part of the plaintiff’ in *errm*it was insisted and argued that a witness, not an expert, may testify to facts within his knowledge, but cannot give an opinion *where*art and science, which he does not profess *to*possess, are required.- 4 *Comen,*355; 17 *Wendell,*136.

That a professional or scientific witness may give an 4>pinion -upon the facts testified to by other witnesses, whc/ are not professional or scientific in the matters to which *182such facts relate. *Roscoe’s- Grim.*Evidence, 180; 1, *Greenhaf on Evidence,*440; 5 *Hill’s Rep.,*603.

That the right to erect a mill-dam, acquired under the Statute of this State while such law is in force, will protect the. party raising such dam, against an indictment o» the ground that it is a nuisance.

That it is the right of counsel to- read medical or scientific books to the jury, on the trial of causes in which skill and science are involved: *Peck’s Medical Jurisprudence,*659; *Grey’s do,*11. That the counsel in summing up his case, has the right to read from any book he pleases, and adopt what he reads as a part of his argument.

On the part of the State*, it was contended, that whe». i« witness, not an expert, gives evidence by stating facts, Hie may also give his opinion upon such facts: *Roscoe’s Evi-dertce,*179; ls£ *Cowen*& *Hill’s Jiotes,*759, *Jiote*529;, *Phillip’s*Evidence, *bp Cowen*& *Hill, voL*1, 290.

That there is a distinction between the testimony of an expert, who gives his opinions upon facts stated by a witness not an expert, and that of an expert who assumes to testify upon a case hypothetically stated to him. 1 *Green-leaf on*Evidence, *Sec.*440; • 1 *Vermont Rep-.,*497; 3 *Dañase Rep.,*382.

That the evidence given by the witness of the nauseous, scum, collected upon the surface of the water in the millpond — the pungent stench, arising therefrom — the former good health of the inhabitants — and, since the erection, the universal bad health of all' wlio> live in the vicinity, enables a witness to give his opinion, upon the facts ha-has stated, as to the effect produced upon health.

That the reading of scientific books in evidence, winch rests merely upon the reputation of the author, are not *183admissible, because they have no sanction in law to make them competent. The author of >any or all of such books, might, as an expert, give oral evidence'-; and other wit-messes, experts, also,-might do the same, adopting as their oWh, the reasoning and opinions of authors, though not présent.

That counsel might argue to the jury in accordance with what had‘been written by others; and the jury might adopt the opinions of the counsel, which were the mere reflection of thoughts of the -author-; but the -book cannot' fee read to the jury as matter of evidence.

*By the Court.*

Lakuabee, J.

This ease is brought -to this Court by a writ of error to the Dodge Circuit. The plaintiff in error was indicted for erecting and maintaining a mill-dam, which caused the water to overflow a large tract of heavily timbered land, in the immediate vicinity of the village of Cedarburg, in Washington County, and which was alleged to create unpleasant and unwholesome vapors, and sickness, to the inhabitants of that village, Many witnesses residing in the village were called by the counsel for the State, to prove the situation of the -millpond, the effect of the stagnant water upon standing and fallen timber; and the prevalence of intermittent fevers to an extraordinary extent subsequent to the erection of the -dam.

After stating the facts, the question was asked, and the reply of -the witnesses permitted to go to the jury-: *“*What, effect ¡has the' overflowing of that land had upon the public health in that vicinity!” This is the' first assignment -of error; and on the ground that 'the opinions of those witnesses, not being *experts,*was incompetent as *184testimony. "The general rule that the opinions of witnesses are confined to men of science, art or skill, in some particular branch of business, is well settled, and was admitted by the counsel for both parties.

But, it was contended by the counsel, *seeking to*introduce this as testimony, that the witnesses having detailed the facts, were properly allowed to state their opinion in connection with them — that they were, from their position and means of information, *experts*for that particular purpose. They were inhabitants of the village — had lived there before the erection of the dam, and afterwards — , had observed the general good health before, and the universal sickness after — there not being enough in health to minister to the necessities of the sick. That the stench from the dam was intolerable, compelling the closing of ,the doors and windows, and the resort to other expedients' to remove its influence.

It was upon this ground, that I considered this an exception to the general rule, and permitted the evidence to gó to the jury. But I am satisfied, upon further examination, and concur in opinion with the other members of this Court, that the evidence introduced, was not within the general rule; and though, perhaps, in this case, operating unreasonably, yet the rule should have been strictly applied.

For this error, a new trial must be had. -Another ground of error assigned, is, that the witness Whitney, being a medical man, was not allowed to answer the following’ question: “ You state you heard all the evidence given on this trial — now, from that evidence, did Luning’s mill-pond, in your opinion, cause the sickness spoken of by the witnesses *V’*In this, the ruling was correct. The answer to this question would have been an opinion, as to *185the general merits of the cause — the weighing'of conflicting testimony, and swearing to a legal conclusion; in fact, usurping the province of the jury.' The facts, as. given in evidence, might hfiye been stated to the witness, and' then his opinion upon them, would have been competent; -or, he might have. giyen his. opinion upon a similar case, hypothetically stated.

The next ground of error to be noticed, is the refusal to permit the counsel for the defendant below, to read from medipal books. This is a matter generally within the discretion of the Court; and, therefore, not the subject of a writ of error. In many cases, no doubt, it would be proper to allow books of science to be read, though generally,- such a practice would lead to evil results. But certainly, counsel have no 'right to read indiscriminately, what books they may choose, as is contended by the counsel for the plaintiff in error. The latitude to be given to counsel in argument, is always under the control and in the discretion of the Court.

The other assignments of error to be noticed, are in the charge to the jury, and upon the motion in arrest of judgment. The counsel for the defendant below, asked the Judge to charge, that as the dam in question, was erected under the act of the Territorial Assembly, authorizing the construction of mill-dams across streams not navigable, no indictment could be sustained by the State for a public nuisance, created by such dam. Though that act has been decided by this Court, in the case of *Jseiocomb v. Smith,*to be valid, yet it cannot be conceived that by erecting a dam in accordance with its provisions, license is thereby given, to create and continue a nuisanóe. Such a construction of the power given in *186that-act to owners of mill property, would be'utterly inconsistent with the right of every citizen to call in the authority of the State, for protection against the unlawful encroachments of others.

How far soever, the (privileges given -to mill owners may be held to extend, most certainly no such immunity as is here claimed, exists. The right is given to any person to build a dam-and flow the water upon the lands of others; but, if he thereby creates-a public nuisance, he is as liable to an indictment in that regard, as if no such statute were in existence. 1 *Marshall's (Ken.) Rep.,*535; *Taylor v. Major, ibid,*552.

This is the only .point in the charge given -to the jury-,, that it is necessary to examine; and this, as well as the rest of the charge, was correct. One of the grounds on which the motion in arrest was founded, is, that it does not appear that the indictment was found in t-he name and by the authority of the State. This point is settled by this Court in the case of the *State v. Delue.*

Judgment reversed.