the recurrence of a condition resulting from an injury,2 and as to the probable necessity for future medical attendance.3 And the opinion of a physician may be given as to what will be the result of a disease in the natural and ordinary course. But it would seem that opinions as to the possible future development of diseases at present nonexistent, as distinguished from the effects of a present condition, are incompetent. And an opinion as to the possible or probable results of an injury is speculative and incompetent."

553. Character and effect of, and inferences from, wounds.-The opinions of physicians and surgeons as to the location, character, and probable consequences of wounds are competent evidence in a prosecution for homicide, or assault with intent to kill. And this is the rule whether based upon observation, or upon a description of the wounds by other witnesses. And a surgeon is competent to express an opinion as to whether or not a wound is a mortal one, and as

And so is the question as to the progressive character of such results. Magee v. Troy, 48 Hun, 383, 1 N. Y. Supp. 24; Saltzman v. Brooklyn City R. Co. 73 Hun, 567, 26 N. Y. Supp. 311; New York, C. & St. L. R. Co. v. Ellis, 13 Ohio C. C. 704, 6 Ohio C. D. 304.

And a physician shown to be competent to testify as an expert may give his opinion as to whether a stillborn child would have been born alive if medical assistance had been received in time. Western U. Teleg. Co. v. Cooper, 71 Tex. 507, 1 L. R. A. 728, 10 Am. St. Rep. 772, 9 S. W. 598.

Filer v. New York C. R. Co. 49 N. Y. 42, 10 Am. Rep. 327; Penny v. Rochester R. Co. 7 App. Div. 595, 40 N. Y. Supp. 172.

Martin v. Southern P. Co. 130 Cal. 285, 62 Pac. 515; Kendall v. Albia, 73 Iowa, 241, 34 N. W. 833.

In Wisconsin, however, the contrary rule is positively stated. Crouse v. Chicago & N. W. R. Co. 104 Wis. 473, 80 N. W. 752; Selleck v. Janesville, 104 Wis. 570, 47 L. R. A. 691, 76 Am. St. Rep. 892, 80 N. W. 944.

Alberti v. New York, L. E. & W. R. Co. 118 N. Y. 77, 6 L. R. A. 765, 23 N. E. 35.

"Clegg v. Metropolitan Street R. Co. 1 App. Div. 207, 37 N. Y. Supp. 130.

"Gregory v. New York, L. E. & W. R. Co. 55 Hun, 303, 8 N. Y. Supp. 525; Huba v. Schenectady R. Co. 85 App. Div. 199, 83 N. Y. Supp. 157; Bellemare v. Third Ave. R. Co. 46 App. Div. 557, 61 N. Y. Supp. 981; Johnson v. Man

hattan R. Co. 52 Hun, 111. 4 N. Y. Supp. 848.

But permitting a medical witness to testify in a bastardy case involving an issue as to premature birth, that, in case the child in question had been a seven months' child and had been treated in the same manner as the evidence tended to show this one was treated at its birth, the chances of its survival would have been greatly against it, is not reversible error. People ex rel. Sullivan v. Johnson, 70 Ill. App. 634.

'People v. Kerrains, 1 Thomp. & C. 333; People v. Willson, 109 N. Y. 345, 16 N. E. 540; Von Pollnitz v. State, 92 Ga. 16, 44 Am. St. Rep. 72, 18 S. E. 301; Batten v. State, 80 Ind. 394; State v. Morphy, 33 Iowa, 270, 11 Am. Rep. 122; State v. Cross, 68 Iowa, 180, 26 N. W. 62; State v. Porter, 34 Iowa, 133; Page v. State, 61 Ala. 16; State v. Wilcox, 132 N. C. 1120, 44 S. E. 625; Robinson v. State (Tex. Crim. App.) 63 S. W. 869.

And a medical expert is competent to testify as to the general or probable consequences of a wound caused by the bite of a person, not confining the opinion to the danger of the particular wound in question. Rhinehart Whitehead, 64 Wis. 42, 24 N. W. 401.

v.

Von Pollnitz v. State, 92 Ga. 16, 44 Am. St. Rep. 72, 18 S. E. 301; Page v. State, 61 Ala. 16.

'Batten v. State, 80 Ind. 394; Sims v. State (Ala.) 36 So. 138; State v. Woodward, 84 Iowa, 172, 50 N. W. 885; Livingston v. Com. 14 Gratt. 592.

to the nature of the instrument which would produce such a wound,' and as to whether a wound was inflicted before or after death;11 and a physician or surgeon may give his opinion as to the probable cause of a wound,12 and as to the amount of force necessary to cause it.18 The cause of the particular wound in question, however, is a question for the jury, and not one upon which an expert may express an opinion.14 And so is the question whether a wound was accidentally or purposely inflicted.15 And opinion evidence in a prosecution for homicide, as to the manner in which the killing was done, is mere speculation with reference to a matter about which the jury is as competent to judge as the witnesses, and is not proper expert testimony.18 Nor is the position of the parties to a combat at the time

v. Morphy, 35 Iowa, 270, 11 Am. Rep. 5 S. W. 853; Hunt v. State, 9 Tex. App. 122; State v. Breaux, 104 La. 540, 29 166. So. 222; People v. Hare, 57 Mich. 505,

a blow was struck, or a wound made, a subject for expert opinion;17 and an opinion as to the relative positions of a person shot and the person doing the shooting, at the time the shot was fired, based upon the location and nature of the wound, is incompetent.18

A duly qualified medical expert, however, who examined the body of a deceased person shortly after the infliction of a wound causing his death, may give an opinion as to whether it was produced by a near shot, or one fired from a distance.19 And a physician and surgeon of experience who had seen many gunshot powder marks and powder burns, and knew of his own knowledge the distance between the discharged weapons and the bodies fired upon, is sufficiently qualified to give an opinion as to the distance at which a certain pistol would produce powder marks on the skin;20 though the rule would be different if the witness did not appear to be thus properly qualified as an expert on powder marks.21 And a physician making a postmortem examination of a person killed by a blow upon his head is competent to give an opinion as to the direction from which the blow was delivered.22 And a medical expert may give his opinion as to

"Perkins v. State, 5 Ohio C. C. 597, 3 Ohio C. D. 292; Brown v. State, 55 Ark. 593, 18 S. W. 1051; Kennedy v. People, 39 N. Y. 245; Thompson v. State, 30 Tex. App. 325, 17 S. W. 448; People v. Farley, 124 Cal. 594, 57 Pac.

571.

From the form, nature, extent, depth, length, width, and direction of a wound being given, and its precise location, with a general statement of the amount of force requisite, and the probable shape of the instrument with which it was inflicted, the jury can judge, as well as the expert, as to the probable position of the person when the blow was given. Kennedy v. People, 39 N.

Y. 245.

People v. Hill, 116 Cal. 562, 48 Pac. 711; People v. Smith, 93 Cal. 445, 29 Pac. 64; People v. Milner, 122 Cal. 171, 54 Pac. 833; Cooper v. State, 23 Tex. 331; Williams v. State, 30 Tex. App. 429, 17 S. W. 1071. Contra, State v. Merriman, 34 S. C. 16, 12 S. E. 619.

But though the opinion of a physician as to the relative positions of two persons, one of whom shot the other, is incompetent in a prosecution for the homicide, its admission is harmless, where there is no question as to the killing by the shooting of a pistol. People v. Hill, 116 Cal. 562, 48 Pac. 711: People v. Lemperle, 94 Cal. 46, 29 Pac. 709.

19 State v. Asbell, 57 Kan. 398, 46 Pac.

770.

"People v. Hawes, 98 Cal. 648, 33 Pac. 791.

And where a physician is called as an expert, in a prosecution for murder by shooting, to show the effect of powder marks from a pistol at short range, his experiments and the cloth used are competent evidence. Sullivan v. Com. 93 Pa. 284.

"People v. Lemperle, 94 Cal. 45, 29 Pac. 709.

And the opinion of a physician in a prosecution for homicide, as to the distance at which the pistol used would produce powder marks on the skin, is immaterial, where it appears that a shot passed through a coat, vest, shirt, and undershirt. People v. Hawes, 98 Cal. 648, 33 Pac. 791.

"Hopt v. Utah, 120 U. S. 430, 30 L. ed. 708, 7 Sup. Ct. Rep. 614; Territory v. Egan, 3 Dak. 119. 13 N. W. 568; Perry v. State, 110 Ga. 234, 36 S. E. 781; Gardiner v. People, 6 Park. Crim. Rep. 143.

In McKee v. State, 82 Ala. 32, 2 So. 451, however, it was held that where a wound is susceptible of description, it is properly left to the jury to determine from what direction the blow came; and the opinion of the witness as to the direction, based upon the appearance of the wound, is incompetent.

the range, after entering the body, of a shot which caused death, taking into consideration the bone, muscle, and other substances through which it had to pass.23

554. Proof as to blood stains.-Stains of blood found upon the person or clothing of a deceased person are recognized as an ordinary indication of homicide, and are competent evidence of its commission even in the absence of proof that the stains were in fact blood stains;24 constituting primary and legitimate, and not secondary, evidence of homicide;25 its weight being a question for the jury.26 And the witness need not be a chemist or physician or expert to enable him to testify that certain spots or stains were in fact blood spots or blood stains;27 and inferences as to the relative positions of two combatants, based upon the appearances of blood stains, are within the domain of common experience, and not a matter of science.28 In a case resting upon circumstantial evidence, however, proof of apparent blood spots, without chemical analysis, does not warrant the legal presumption that the substance was blood, because of the similarity of stains made by other substances;29 and where an effort is made to distinguish between human blood and that of some animal, the question is one of science requiring the application of great skill and knowledge, upon which the testimony must be that of an expert.30 An investi

State v. Keene, 100 N. C. 509, 6 S. E. 91; Com. v. Lenox, 3 Brewst. (Pa.) 249; Rash v. State, 61 Ala. 89. Contra, Hardin v. State, 40 Tex. Crim. Rep. 208, 49 S. W. 607.

And a person not a physician or surgeon or expert cannot give an opinion upon such a question, though he had been in the war, and had seen the range of balls in a large number of gunshot wounds. Rash v. State, 61 Ala. 89.

"People v. Gonzalez, 35 N. Y. 49; People v. Bell, 49 Cal. 485; Dillard v. State, 58 Miss. 368; Com. v. Crossmire, 156 Pa. 304, 27 Atl. 40.

People v. Gonzalez, 35 N. Y. 49. 26 Com. v. Crossmire, 156 Pa. 304, 27 Atl. 40.

Greenfield v. People, 85 N. Y. 75; 39 Am. Rep. 636; People v. Deacons, 109 N. Y. 374, 16 N. E. 676; People v. Gonzalez, 35 N. Y. 49.

The testimony of a chemist who had analyzed blood, and that of an observ. er who had simply recognized it, belong to the same legal grade of evidence, though the one might be entitled to greater weight than the other; the exclusion of either would be illegal. People v. Gonzalez, 35 N. Y. 49.

"Dillard v. State, 58 Miss. 368; Com. v. Sturtivant, 117 Mass. 122, 19 Am. Rep. 401.

And a witness familiar with blood, and who had examined blood stains upon a coat, with a lens, when they were fresh, may testify that the ap pearance indicated that the blood came from below upwards, although he was not an expert, and had never experimented with blood or other fluids in this respect. Com. v. Sturtivant, 117 Mass. 122, 19 Am. Rep. 401.

But a medical witness is competent to testify as to whether or not a man standing at the hip of a recumbent person, and striking blows on the person's head and forehead with an axe, would not necessarily be spattered with blood. Bram v. United States, 168 U. S. 532, 42 L. ed. 568, 18 Sup. Ct. Rep. 183.

"Dillard v. State, 58 Miss. 368.

People v. Deacons, 109 N. Y. 375, 16 N. E. 676; State v. Knight, 43 Me. 11.

And the opinion of a physician in a prosecution for murder, on the prob able length of time necessary for a clot of blood to acquire the consistency in which it was found, and the length of time it would take for decomposition to

gation or examination by experts of the clothing or person of one accused of murder, for the purpose of the discovery of the presence or absence of blood stains, is not incompetent and improper as a violation of the constitutional provision that no person in any criminal case shall be compelled to be a witness against himself, where the examination was voluntarily submitted to.31

555. Proof as to poisoning.-A medical examination and chemical analysis are more important in cases of alleged poisoning than symptoms; and proof of symptoms of poisoning especially when unsatisfactory and unreliable-will not warrant conviction for poisoning, in the absence of chemical analysis, and application to the stomach and its contents of approved tests for the discovery of poison.32 And physicians may testify, in a prosecution for poisoning, to a chemical analysis made by them of the stomach of the deceased, and to the tests applied for detecting the existence of poison, though they are not professional chemists, and have no experience in the analysis of poison;33 but a chemical analysis for the purpose of discovering poison would be of less weight if conducted by persons without practical experience, than if conducted by practical chemists whose conclusions were based upon experience, as well as upon study.34 The question of the condition of the stomach of a person alleged to have been poisoned is likewise one involving skill and science, and a proper subject for expert testimony.35 But specialists of experience are

set in, is competent; and it is within the proper discretion of the court to permit it to be given on redirect examination of a witness. State v. Warren, 41 Or. 348, 69 Pac. 679.

And a physician who had examined the body of a deceased person, and the surroundings at the place where it was found, may testify on an issue as to whether or not death was occasioned by suicide, as to the position in which the body must have lain for the blood to take the course from the wound it did. Dinsmore v. State, 61 Neb. 418, 85 N. W. 445.

State v. Baker, 33 W. Va. 319, 10 S. E. 639. And see State v. Knight, 43 Me. 11.

32 Joe v. State, 6 Fla. 591, 65 Am. Dec. 579. And see People v. Benham, 160 N. Y. 402, 55 N. E. 11.

State v. Hinkle, 6 Iowa, 380; State v. Cole, 63 Iowa, 698, 17 N. W. 183.

And physicians, called as witnesses in a prosecution for murder by poison, may, after describing discoveries made by them in an autopsy, be permitted to

State v. Hinkle, 6 Iowa, 380. The weight which should be given to evidence of physicians who made an autopsy in an alleged case of murder by poison depends largely upon the care with which the various organs of the body were examined. People v. Benham, 160 N. Y. 402, 55 N. Ē. 11.

But to permit a consideration by the jury in a prosecution for poisoning, of a chemical analysis of the stomach of the person poisoned, it is not necessary that it should be kept continuously under lock and key, or continuously sealed up; it is sufficient if it appears that it was the identical stomach, and that no foreign substance, such as poison, could have reached it. State v. Cook, 17 Kan. 392.

State v. Cole, 63 Iowa, 697, 17 N. W. 183.