People v. Carter

CARTER, J.

I concur in the judgment of reversal and generally in the reasoning set forth in the majority opinion. I feel, however, that error also was committed in the admission of Dr. Kirk’s testimony concerning his experiments with the pattern made by blood spattering from an object made of wood, sponge rubber and a thin plastic sheet. The admission of such testimony invaded the province of the jury as it was based on conditions far removed from those actually existing at the time the crime was committed. Such testimony from a person as noted in criminology as Dr. Kirk could have had no other effect than to impress and prejudice the jury particularly in a case as closely balanced as the one here under consideration.

This court held in People v. Woon Tuck Wo, 120 Cal. 294 . 296-297 [ 52 P. 833 ], that unless such experiments are shown to have been made under essentially the same conditions that existed in the case on trial, the tendency is to confuse and mislead rather than enlighten the jury. It most certainly cannot be said that an object made of wood, sponge rubber and a plastic sheet constituted the same thing as a human head. Further, as noted in the majority opinion, the prosecution made no attempt to show that because certain spots were produced by a certain cause in the experiments, similar spots on defendant’s trousers or on the floor of the card room must have been produced by a similar cause. “Evidence of this kind should be received with caution, and only be admitted when it is obvious to the court from the nature of the experiments that the jury will be enlightened rather than confused. In many circumstances a slight change in the conditions under which the experiment is made will so distort the result as to *760 wholly destroy its value as evidence, and make it harmful rather than helpful.” (People v. Wagner, 29 Cal.App. 363, 369-370 [ 155 P. 649 ]; see also People v. Ely, 203 Cal. 628 [ 265 P. 818 ]; People v. Parker, 4 Cal.App.2d 421, 424 [ 40 P.2d 836 ]; McGough v. Hendrickson, 58 Cal.App.2d 60 [ 136 P.2d 110 ].)

Defendant’s story was that the spots on his clothing were due to blood spraying on him as he handled the deceased’s body when he discovered it after the beating. Dr. Kirk’s testimony was to the effect that the blood could not have gotten on defendant in that manner but could have gotten there only if he had administered the beating. It was the jury’s prerogative to draw its own conclusion from the evidence without expert testimony based on totally dissimilar facts.

For this reason, as well as those stated in the majority opinion, I concur in the reversal of the judgment.

•Schauer, J., concurred.