Koccis v. State

*46 The opinion of the court was delivered by Garrison, J.

The only question argued by the defendant’s counsel refers to the rejection of the expert testimony offered for the purpose of showing that the defendant could not use the English words that the state’s witnesses swore that he had used in their hearing. The expert witness offered by the defendant was the court interpreter, and his qualification consisted in the fact that he understood the native language of the prisoner and also the English tongue, and the basis for his proposed opinion was an interview had with the prisoner half an hour previous to the time the offer of proof was made.

We think this offer was properly rejected. If the purpose was to deny that the defendant, as matter of fact, had used the words that the state’s witnesses say he used, it was clearly incompetent. The offer can rationally go no further than that the defendant did not understand the meaning of the words ascribed to him or that he could not have used them in their proper sense. This, however, is not a matter relating to any profession, science or art, so that one expert in such calling can, by examination of the defendant, or upon a hypothetical question, express an opinion. The materials for such an investigation could be gathered only by one having opportunity to observe the defendant’s habit in the use of the English tongue, and could be testified to only by those who from such observation had actual knowledge in this respect. Doubtless a man of linguistic accomplishment would be better able than an ordinary observer to understand the difficulties of our language and to estimate the extent to which the defendant had succeeded in overcoming them ; but this would not constitute him an expert witness. His testimony, if admitted under such circumstances, would be received, not.as an expert’s opinion, but because it came within that class of cases in which a witness may state the inference drawn by him from facts within ordinary knowledge occurring in his presence. Familiar instances in which testimony of this kind may be given are, wdiether two people were in love, *47 ■whether a man was sick, or dazed, or despondent, or drunk ; whether a dog was savage or a horse gentle, and, in general, any matter touching physical or mental manifestations or appearances as well as all questions of identity, resemblance, duration, distance, dimension, velocity, noises, smells and many other matters where the inference drawn by an observer is commonly recognized and received as an equivalent for the congeries of facts that produces it. Testimony of this class, however, so far from being related to expert proof, rests upon diametrically opposite grounds. The expert witness is one whose possession of special knowledge renders his opinion admissible upon a state of facts within his specialty without regard to the manner in which the facts are established and without requiring that they should have come in whole or in part under the personal observation of the witness. Whereas the sole ground upon which a witness may give an opinion as to matters of ordinary knowledge is that they not only came within his personal observation but that they come into proof so blended with the opinion to which they give rise that it is' receivable in proof as a substitute for a specification of the host of circumstances that called it forth. A failure to observe this distinction results at times in the offer of an ordinary witness to give an opinion calling for special knowledge merely because he has had actual observation of the facts; and at other times, as in the present instance, in the offer to prove an opinion upon a matter of ordinary knowledge, arising from assumed facts, by a witness who has not himself observed them, upon the ground that he is expert upon the special subject. In either of these classes of cases the proof must be rejected, the rule being that mere opportunity will not change an ordinary observer into an expert, and that special skill will not entitle a witness to give an expert opinion when the subject is one where the opinion of an ordinary observer is admissible or where the jury is capable of forming its own conclusion from facts susceptible of proof in common form.

Einding no error in this record, nor in the course pursued at the trial, the judgment of the court below is affirmed.