1 High, Inj. § 15; Ex parte Hays, 26 Ark. 510; McMillen v. Smith, Id. 613; State v. Judge, 28 La. Ann. 905.

In my judgment, therefore, this court had no jurisdiction to employ the writ of mandamus as it did in this instance, no final decision having been reached in the lower court, and no appeal having been taken. None of the authorities cited in opposition to this view will be found, upon careful examination, to be applicable here. The powers of the various courts in which these decisions were announced, and the modes of procedure in acquiring and exercising jurisdiction, are widely dissimilar from the authority conferred and the procedure prescribed for this court by the constitution and laws of the state. My opinion, therefore, is that the judgment of the circuit court should be affirmed.

1. CRIMINAL LAW-MURDER - INDICTMENT - UNAUTHORIZED PERSON BEFORE GRAND JURY.

The presence of a person before the grand jury who is not authorized by law is highly improper, and must be taken advantage of by motion to quash before trial. After verdict the motion should be in arrest of judgment.

2. SAME-EVIDENCE-NON-EXPERT.

One not a surgeon or expert is not competent to testify as to effect of gunshot wounds on a trial for murder by shooting.

3. SAME-EXPERIMENTS.

Experiments to be admissible as evidence must be shown to have been made under conditions the same as those existing in the case on trial.

4. SAME-ACCIDENTAL HOMICIDE-MANSLAUGHTER.

Where one accidentally killing another is culpably negligent, he is guilty of manslaughter.

Appeal from Jackson county.

R. Williams, B. F. Dowell, and J. R. Neil, for appellant.

P. P. Prim, for respondent.

LORD, J. The appellant was indicted by the grand jury of Jackson county for the crime of murder in the first degree, committed by shooting and killing William Justus, his father; for which he was tried at the June term of the circuit court of that county, and found guilty as charged, and sentenced to be hanged. From that judgment he brings his appeal to this court. Among the errors relied upon to question the correctness of that judgment and secure a new trial is the fact, as disclosed by the record, that a person not authorized by law was present before the grand jury, at the request of the district attorney, for the purpose of assisting them in the examination of witnesses, and in framing the indictment. That any person other than the district attorney should be permitted to be present during the sittings of the grand jury must be admitted to be highly improper. "No person other than the district attorney," is the emphatic language of the statute, "can be allowed to be present during the sittings of v.SP.no.5-22

the grand jury." But non constat that the error is fatal. In State v. Whitney, 7 Or. 386, it was held, on a motion to set aside an indictment involving this identical question, that it was only the two cases enumerated in subdivisions 1 and 2 of section 115 of the Criminal Code for which such a motion was available. "These," say the court, "are the only two cases for which an indictment can be set aside; and as the section prohibiting any other than the district attorney from appearing before the grand jury is not in chapter 7, there was no error in the ruling of the court." "But irregularities in the proceedings before the grand jury," says Mr. Bishop, "may under some circumstances be taken advantage of upon a motion to quash the indictment." But a motion to quash must be made at an early stage in the case, for it is inadmissible after verdict, as then the motion should be in arrest of judgment. 1 Bish. Crim. Proc. §§ 747, 748, 762. In Durr v. State, 53 Miss. 425, where the court permitted an attorney who had been employed to assist in a prosecution to go before the grand jury with the witnesses, and there act for the district attorney in framing the indictment, it was considered doubtful whether the objection could be raised by motion to quash the indictment, the court saying: "We regard it as bad practice, and certainly as being much more appropriately done by plea in abatement." But a plea in abatement does not answer to the charge made by the indictment, but it declines to answer it on the ground that the charge is not legally made. Bac. Abr. "Juries" A. And if the objection is not made at an early stage of the proceedings it will be considered as 'waived; for, as was said in State v. Carver, 49 Me. 593, by pleading generally to the indictment the defendant admits its genuineness, and waives all matters that should have been pleaded in abatement. People v. Robinson, 2 Parker, Crim. Rep. 235, 309. Now, here the objection comes for the first time after trial and verdict upon a motion. for a new trial. At most, it is but an irregularity, but of that character which does not bring into question the qualifications of the grand jurors or their fairness towards the accused. Nor is it claimed that any injustice or wrong was done to the prisoner by reason of this alleged error at the trial. Upon authority it is clear the objection cannot prevail.

The next assignment of error is the overruling the objection of the appellant to the admission of certain pasteboard targets as evidence. It appears by the bill of exceptions that one James Birdseye, by direction of the coroner, and in the presence of the coroner's jury, made several experiments with the gun with which the defendant claimed he had accidentally killed his father, by discharging it at certain targets made out of pasteboard, at different distances respectively marked upon them. The coroner, Mr. Huffer, being on the witness stand, the prosecuting attorney, in the presence of the jury, exhibited to him these targets, to the admission of which the objection was made, which he identified, and further testified as follows:

that "he saw the defendant's gun tested at different distances, and that the distances were marked respectively on the targets; that he saw the gun loaded when the experiments were made; that the loads of powder were a charger full; and that the charger was the one on the pouch used by the defendant." Birdseye, who had loaded and fired the gun, testified:

"I loaded the gun, using the powder-flask which the defendant said he loaded from when he killed his father. I filled the charger level full each time I loaded the gun. The distances on the targets are all correct.”

At the coroner's jury the defendant had testified, among other things, that he had taken the gun at the suggestion of his father, and had gone out and shot a squirrel the dogs had treed. He says:

"I started from the front porch to put the gun away; I came in near the door or through it to put the gun away; we generally keep the gun sitting behind the partition door on a stand-table. I was in here, and had just started in, the gun being cocked. If I remember rightly, I had the gun lying across my left arm, and I started across the floor to put it away, it being cocked. I went to let the hammer down. I don't know whether or not I had hold of the hammer. I went to let the hammer down, and touched the trigger, I suppose, before I got hold of the hammer, and the gun went off. I was about six feet from the door when the gun went off; this is, I think that was the distance. I suppose it is about the same distance to where my father was sitting in the chair when the gun went off."

With this explanation we now come to the pasteboard targets which were admitted in evidence against the objection of the defendant. Their object was to rebut the defense of accidental killing by showing that the statements of the prisoner upon which this defense was based were inconsistent with what it was claimed the inferences from the target experiments would prove to be the circumstances of the case. As no one was present except the prisoner when the deceased was killed, and as his statements were inconsistent with the theory of a "near" gunshot wound, which the prosecution claimed was the cause of the death, the object of the experiments made on the pasteboard targets which were offered in evidence was to prove by inference that the deceased came to his death by a near gunshot wound at the hands of the defendant. This was the vital question involved in the issue, and to which the evidence excepted to was directed. But here it must be noted that the witnesses who made these experiments were not experts, and were therefore unable to express an opinion whether the phenomena indicated by near gunshot wounds upon the human body corresponded in appearance with the phenomena exhibited as the result of their experiments, thereby connecting the similarity of the fact offered to be proved with the fact in issue; but it was proposed to show only the phenomena produced by near gunshots on the pasteboard targets, from which it was claimed the jury were qualified and authorized to infer similar phenomena would be produced by near gunshot wounds on the human body, and which, as a result of such inferences, would serve to illustrate the gunshot wound from

which the deceased died, and thereby establish the point in issue that the deceased was killed by a near gunshot wound. Is the evidence of such experiments admissible for the purposes claimed? Gunshot wounds belong to a branch of medical science, and often gave rise to many questions of a difficult nature, although, generally, a gunshot wound is easily distinguished. And among the questions frequently rising is, was the ball fired near the deceased or from a distance? Observation and study, however, in this department of science have noted and described with much exactness the appearance and character of gunshot wounds. In "near" wounds, as they are termed, when the muzzle is placed near the surface of the body of the deceased when fired, the characteristics of the wound is thus described: (1) A superficial bluish color of the skin from the contusion caused by the explosion. (2) Particles of charcoal and ignited powder imbedded in the skin. (3) Slight burning. (4) Coagulation of blood mixed with powder on the lips of the wound. If the muzzle is placed in direct contact when exploded, the wound is large and circular, the skin denuded, blackened, and burned, and the point at which the ball entered is livid and depressed. Dearn. Med. Jur. 241; Whart. & Stille, Med. Jur. 707; Tayl. Med. Jur. 329; Beck, Med. Jur.

Now, it must be manifest that there are here noted so many marked characteristics of near gunshot wounds which could by no possibility be reproduced, or represented by experiments upon pasteboard, yet upon which the fact of a near wound is made to depend, and often to be determined, that it would be utterly unsafe to apply the inferences sought to be deduced from such experiments to the fact in dispute, unless there can be found in such experiments, and the subject-matter which it is their object to explain or illustrate, some point of similitude or ground of common resemblance, always present, as a result induced by a similarity of conditions or circumstances. It may be suggested that some identity of resemblance may be traced in the powder burns exhibited by the experiments as the result of near shots, and in the wounds of the deceased which the medical authorities indicate are usually if not always present in "near" wounds. But when, as here, the case is not susceptible of direct proof, and the fact in issue-whether the ball was fired near or from a distance-depends of necessity for a correct determination upon the appearance of the wound, the fact, and its experienced consequences, does not belong to the ordinary information of men, but lies within the limits of a particular branch of medical science, and requires to be proved by persons skilled in it, the better to enable the jury to reach a safe conclusion. In Rash v. State, 61 Ala. 89, it was held that one not a surgeon or expert, although he had been in war, and seen the range of balls in gunshot wounds, was properly excluded from testifying on a trial for murder by shooting. It would seem, then, hardly to be safe to permit non-professional witnesses to prove, through the instrumentality of experiments, matters not within the

range of their observation and experience, and of which they are supposed to be incompetent to deal. But besides this, when it is considered how much other marked characteristics in conjunction with powder burns aid in determining the fact of near wounds, what seemingly immaterial circumstances, even the kind or compound of the wadding used, may affect the appearance of gunshot wounds, how fundamentally different is the human body in nature and texture from the substance upon which the experiments were made; and when it is considered how important it is that experiments should be based on conditions and circumstances as nearly as possible like the matter they are intended to illustrate to avoid the liability to misconception, or error from some supposed agreement or resemblance, we should certainly hesitate to admit such experiments as evidence, unless supported by reason or sanctioned by authority.

In Com. v. Piper, 120 Mass. 188, it is held that, unless the experiments are shown to have been made under conditions the same as those existing in the case on trial, the tendency is to confuse and mislead the jury. Eidt v. Cutter, 127 Mass. 523. And in all the cases which have come under our observation, where such evidence has been held as admissible, the experiments were made with like means on the same kind of stuff or substance, or were based on a similarity of conditions or circumstances, whereby the results produced betray, with some certainty and uniformity, a common similitude or agreement, and as a consequence thereof furnish a safe foundation for inference, or the truth of the matter sought to be established. In State v. Blair, found in the notes to Whart. Crim. Ev. § 312, the experiments admitted in evidence were made with the same kind of pistol on the same kind of stuff as that of which the outer garments of Armstrong, the person shot, were made. But in Com. v. Twitchell, 1 Brewst. 566, where the object of the experiments was to ascertain the facility of breaking a human skull with a poker, and the witness testified that he had made experiments upon another skull with a poker like the poker with which the skull of the deceased had been broken, the evidence was rejected. In Smith v. State, 2 Ohio St. 513, the evidence of the experiments, which it was decided ought to have been admitted, showed the experiments to have been made under similar conditions and like circumstances to the act in issue. Again, in Sullivan v. Com., 93 Pa. St. 285, the deceased was shot through her gown in the abdomen, and the experiments were made by a physician upon similar stuff with the same pistol loaded with cartridges out of the same box, who, at the trial, was called as an expert to show the effect of powder marks where a pistol is fired at short range, and it was held that his testimony, and the muslin used in his experiments, were admissible. But even if it be considered a matter of doubt whether the evidence objected to was proper or otherwise, we should feel bound in favorem vite to hold that in this case it was inadmissible, as it was pressed by the state as of vital consequence.