defining expert as one with superior knowledge “by professional, scientific, or technical training or by practical experience in some field of human activity”
How later courts described this case
- defining expert as one with superior knowledge “by professional, scientific, or technical training or by practical experience in some field of human activity”
Written by the judges who cited it.
The opinion
*207
On Petition for Rehearing.
Mr. Justice Gabbebt
dissenting:
When the original opinion was handed down I concurred in the conclusion there reached, that instruction No. 21 was not erroneous; but upon further consideration I am convinced that it is; that it is not supported by authority, and, in fact, when carefully considered, cannot be the law.
It is the province of the court, in the first instance, to determine whether or not the foundation has been laid which renders testimony of the character mentioned in the instruction competent. If the trial judge determines that the proper foundation has been laid, the testimony is admitted, upon the theory that a rational person will not perform acts or make statements tending to prove that he is guilty of the offense for which he is on trial, unless such acts were committed in furtherance of a common design, or the statements attributed to him were true. But this estimate of the truth of such testimony • extends no further than to render it admissible. Beyond this it is not aided by any presumption of the truth. In the very nature of things, the rule cannot be otherwise. Acts and statements may be proved which tend to establish the guilt of the accused, and yet, when considered in connection with other circumstances in evidence, are so inconsistent or improbable that their probative force is entitled to little or no weight.
In the ease at bar the trial court, after advising the jury under what circumstances the acts and statements of the accused as co-conspirators were admissible as against each other, says — “but such acts or statements, when so proven and so admissible, if made against interest, are presumed in law to be true by reason thereof,” when, under the law, the acts *208 and declarations referred to were merely evidence which it was the exclusive province of the jury to weigh and estimate, and in connection with all the testimony, determine what degree of weight and credit should be accorded them.—1 Greenl. Ev., § 215; State v. Gleim, 17 Mont. 17 ; 6 Enc. of Law 580; Morrison v. State, 41 Tex. App. 516; Harris v. State, 1 Tex. App. 74; 1 Elliott Ev., § 246; Pharr v. State, 7 Tex. App. 472; Thompson v. State, 19 So. 204 ; State v. Sullivan, 22 Pac. 1088 ; 2 Thomp. Tr., § 2287; Clay v. State, 86. Pac. 17; State v. Willing, 105 N. W. 355 . Or, in other words, the jury must he left to exercise the same degree of freedom with reference to acts and declarations of co-conspirators which is their prerogative with respect to other testimony. They are not required to attach any weight or credit to testimony of that .character merely because it has been admitted by the court, hut must determine for themselves its credibility and weight in connection with all the circumstances and other testimony in the case. —Commonwealth v. Knapp, 10 Pick. 477 ; Brister v. State, 26 Ala. 107 ; Ellis v. State, 65 Miss. 44 : State v. Smith, 9 Houston (Del.) 588.
The instruction clearly violates this uniformly established rule. Its effect was to send to the- jury the incriminating acts and statements so far as proven .clothed with the erroneous presumption that they were to be regarded as true, when, in law, the presumption which attached to this evidence went no further than to render it competent and admissible.
Error is deemed prejudicial unless it affirmatively appears that it was not. Instruction No. 27 does not cure the error committed in giving- the portion of No. 21 above quoted. It advised the jury in what circumstances they may consider the testimony relating to the acts and admissions of the de *209 fendants, as against each, other, but it does not tell them, even inferentially, that it is for them to determine what credibility and weight shall be given it. By instruction No. 28 the jury are advised that they are the judges of the credibility of the witnesses and the weight of the evidence, but this does not withdraw from their consideration the previous erroneous statement, that the acts and statements made against interest are presumed in law to be true. If, however, instructions 27 and 28 could be given the construction from which it was made to appear that the jury were thereby advised that they were the judges of the weight to be given the acts and admissions of the defendants against interest, which were proven, the error in No. 21 would not be cured. We cannot tell which instruction the jury followed. A charge containing two conflicting propositions of law upon a material point, one correct and the other incorrect, must be held erroneous, it being impossible to determine upon which proposition the jury relied.—Clare v. The People, 9 Colo. 122 .
A rehearing should be granted, and upon further consideration, unless it appears that the error in No. 21 was not prejudicial, the judgment of conviction should be reversed and a new trial granted.
Mr. Justice Bailey concurs in this opinion.