State v. Hauser

*740 Stact, C. J.

The basis of the prisoner’s objection to the testimony of the witnesses Douthit, Graham and Riddle is, that they are non-experts, and, therefore, incompetent to express an opinion on the mental condition of the accused. Authorities may be found for this position (8 R. C. L., 190), but our own decisions point in another direction.

Clary v. Clary, 24 N. C., 78 . That the evidence in general, pro and con, was competent on the question of alleged felonious intent, or premeditation and deliberation, is not controverted. 1 Wharton’s Grim. Law, p. 85, sec. 64-; Wharton on Homicide (3d ed.), p. 802-803, sec. 538-539;

S. v. Wilson, 197 N. C., 547 , 149 S. E., 845 ; S.

v. Ross, 193 N. C., 25 , 136 S. E., 193 ;

S. v. English, 164 N. C., 497 , 80 S. E., 72 .

Without undertaking to review the cases, which deal with “expert knowledge in the hands of an inexpert,” we think the opinion evidence of'the witnesses Douthit, .Graham and Riddle invaded the province of the jury, and, for this reason, should have been excluded.

Maries v. Cotton Mills, 135 N. C., 287 , 47 S. E., 432 ;

Stanley v. Lumber Co., 184 N. C., 302 , 114 S. E., 385 ;

Marshall v. Tel. Co., 181 N. C., 292 , 106 S. E., 818 ;

Kerner v. R. R., 170 N. C., 94 , 86 S. E., 998 .

Almost the identical question here presented arose in the case of S. v. Journegan, 185 N. C., 700 , 117 S. E., 27 , where the following questions were held to be incompetent: “In your opinion, do you think that Journegan has sense enough to operate a blockade still?” And further: “Do you think, on 12 December, 1922, Journegan had sufficient mental capacity to operate a still, and to know it was wrong to do it ?” The defendant was charged with the unlawful manufacture of spirituous liquors and with operating a distillery.

Ciarle, C. J., delivering the •opinion of the- Court, said: “It would lead to strange results if the precedent were set in this case that a witness could testify whether in his opinion a man who committed forgery had 'sufficient mental capacity to do this and understand that it was wrong’; or whether a man guilty of homicide by the use of a deadly weapon had 'mental capacity to use a deadly weapon, and to know it was wrong to kill.’ . . . There is no precedent in the books to ask as to the mental capacity to commit any particular crime.”

Again, in Tillett v. R. R., 118 N. C., 1031 (at p. 1042), 24 S. E., 111 , Avery J., speaking for the Court, said: “When, therefore, the witness was asked to state whether a car was coupled in a negligent manner, the question was calculated to elicit an ojdnion upon one of the very questions which the jury were empaneled to. decide, and the objection to its competentcy, being in apt time, was properly sustained.

Smith v. Smith, 117 N. C., 326 ;

Wolf v. Arthur, 112 N. C., 691 .”

*741 It has been Held competent for a witness to give bis opinion as to whether a person is a Negro (Hopkins v. Bowers, 111 N. C., 176 , 16 S. E., 1 ), or whether his appearance indicates the presence of Negro blood in his veins (Gilliland v. Board of Education, 141 N. C., 482 , 54 S. E., 413 ); also as to the mental state of a party (McRae v. Malloy, 93 N. C., 154 ;

Sherrill v. Tel. Co., 117 N. C., 352 , 23 S. E., 277 ),.but in the instant case the witnesses were asked to express their opinions upon the very question, or one of the questions, which the jury was empaneled to decide. • “The general rule undoubtedly is that witnesses are restricted to proof of facts, within their personal knowledge, and may not express their opinion or judgment as to matters which the jury or the court are required to determine.” 1 Rice on Evidence, 325, quoted with approval in Cogdell v. R. R., 130 N. C., 314 , 41 S. E., 541 . There are, of course, exceptions to this general rule of evidence, but the present case falls within none of them.

Barnes v. R. R., 178 N. C., 264 , 100 S. E., 519 ;

Britt v. R. R., 148 N. C., 37 , 61 S. E., 601 .

For the errors, as indicated, in admitting incompetent evidence, the prisoner, is entitled to a new trial. It is so ordered.

New trial.