The Houston daily post. [volume] (Houston, Tex.) 1886-1903, 1897-05-31


him Gu the day following the murder, bus
lly engaged In boxing the bloody garments |
aud bodcluthSs, and the hatGhet with which |
he committed the foul murder, lie was dis |
covered by the cook sitting alone III the
kitchen with bis hands before his face "a
Il crying his statement to her that he had
trouble, are all potent evidences OF a
guilty conscience, accusing and robuking
him for his terrible aud fendish crime.
Record, page Is.
In view OF this array OF inculpatory ctr
cumstanoes. / can not SEQ how any sane
district attorney could have conceded that
this killing was without motive cause or
reason Therefore the trial court prop
erly refused to compel counsel for the
State 10 assume as true these cortrovertod
facts In his hypothetical question. For
| him TO have done so would have boon an
invasion of tho province OF the jury whose
prerogatiVc II Ia TO determine the existence
or non existence OF disputed facts. | ap-
| prchend such a doctrine viii never receive
| The sanction of this court. but will be re-
! jectcd as has been done by every court
! that has vet passed upon tho question.
| As said by Mir, Jones In his work on evil
| dcnco (ecction 3Ii): Clearly 1t is not
! the province OF the expert to act as Judge
| or Jury Hence all questions calling for
! his opinions should he so framed as not
to cali upon him TO determine controvert-
/ ed questions OF fact, or to pass upon the
| prcponderance OF testimony. Thus II would
| obviously be improper to ask the witness
to state his opinion upon all the test
F, mony in tho case or to any given ques-
! ton II tho truth OF part Of such evidence
| we're In dispute. When the question ts 50
framed as 20 cali upon the eNper, to de
termiue on which side the evidence prcpon-
dcrstes. or to reconcile conflicting state
men,s. he Is in effect asked to decide me
merits Of the case which rs 4 duty wholly
beyond his province Whatever liheraliy
may he allowed In calling FOR the opinions
Of experts or ether witnesses, they must
not usu-p the province OF tho court ana
Jury by drawing those conclusions OF law
or fact upon which the decision Of the case
depends
See Page VS., State 81 Ala, l6; state vs.
Cole. % \. c., o5S Reed VS.. State, 02
Miss i05; Bennett VS. state % MIS- ea
Amer Rep, 20; McNaughton case 10 e.
y f.. 200; Island Gas company VS. ToW'-
SON 1879 L. s. DOL,
"rhe truth Of facts assumed by the gues-
ton is in doubtful cases a question for the
jury. and # they lind that tho assumed
facts are not proved! they should disresarl
the opinions based upon such hypothrlcai
questions" (Rogers On Expert Testimony
section s3D
See People VS.. Dolcy, 81 Mich, AS.
Trumbuu VS. Richardson, 60 Mich. iOo,
United States vs.. McCmc. l Curtis G. c.
p 8; Creenlcaf on Evidence, vol !, sec
go. Wharton on Evidence, VOL. l. sec. 40
II the rule was as commended by appellant
expert witnesses would be permitted 20
uaurp the functions of the jury and decide
oontroyertod questions OF fact.
H. No error is shown In the refusal OF
the trial court to exclude the testimony OF
Miss Carrie Sparks, 10 the erect that Aoou'
u. N. on the night of the killing, when
3 opposite defendants house she heard a
woman's voice raised in a high key, say
ing. Il will stand this no longer IL Is
objected that this evidence was not IN re
buttal OF the defendants case hu' on Inc
line If the states case rms Is NOT 'r''-
D able for the reason that defendant claimed
lhors was no motive. cause or reason io'
the killing AS II WAS shown that ltu
and his wife were the only two persons III
the house at that time, THIS evidence &c,
hutted the theory OF the defcnhaht' ana
tended 90 afirmatively show quat1ti- y
= cause for the Killing. The rue ia leEatu
10 excluding testimony al this stage OF the
>. proceedings unless In rebuttal might be
e Invoked TO exclude cumulative, irreleNah
g or impeachlng testimony. II Is within th'
h discretion of the court to enforce the iuI'
. | when the occasion demands. but II is 20
% yond the power OF the court TO exclude any
4 relevant evidence necessary TO the due Al
a | mir lstrhtiun OF Justice. and tending - NuoC
h ileht on the main fact In issue when Of
/ fercd before the argument IS coNrlAdoa
Art GyS. c. c. T.. reads rs follows 'fh'
. court shslt "ii"N NSt''""t' ~ ~
duced at any ,llne oIt'is ,i'n -, ',, i, IL
i, case Is eohciu-'d' ] HlIo.u 49, ,,.
necessary TO que ouult''s', ~.'o" W. a
iice. rms clearly Jnlo'ha N,o'. ,,,S +,
. court me d4'y 81 n''1W,nh S',o ,,s ar
!. be lni,"uu'eu u, SnS ''H a,',,o,,. 10 Il,
G Huhlehl rs ,, adn,intstrEiinn M jus
= neVeHNST, 20 nv oS .i, NH co,ir, In tb
Z; u'e. ne @et'V" W. Wv f ,'aI' ~, a,,si;,,,,
/; re5aru VII ,o nTs on,ea,s mat lniusfIee ha
nl''sss ,nno
Il Desn E Y,,. 90, c.oto os Ann 1o5. Nall
h ~ SS Az, sS7, tiordridls vs state
q ~ 4ip' M"''n 5t 60, Go,,aic
lNuF c,n, vs. vs. ral Grim 't fcn 6ii
@ W., ,," ,ris, ,or ,o,,r1rr nbrrc a witnes
On "a I'm io' ,,,.. b,.,r1 ,bn voice n
a mao Ws,,'i," ,os,n1amt,s boiss tho ey,nu,
Hro,e,lra tbs homicide and counsel 70
pIoetH'.a ~ ~, r,,t,s"s .did he noie
;. me s'a,e as"Ii 'mo m,,"v ,ys. IL, low ar 4
,. sonhd W. ,"o T.n ,a,ch1,t- ar erv