The deceased was found dead in his bed with two bullet wounds in the head. His father was prosecuted for murdering him. The theory advanced by the father was that his son had committed suicide by shooting himself. There were powder burns on the head. This, argued counsel for defense, rendered plausible his theory that deceased shot himself. To overthrow this theory the State called the sheriff, who, after qualifying as an expert, was permitted to express his opinion as to how far the muzzle of the pistol was from deceased's head when the fatal shots were fired. He based his opinion upon the results of an experiment he had made by shooting at a target of white cardboard with a pistol substantially like the one which had belonged to the deceased, at ranges from six to twenty inches.
We held on original hearing that the opinion of this expert, based as it was on such an experiment, was inadmissible because, the nature and texture of cardboard being fundamentally different from that of the human body, the experiment was not made under conditions and circumstances "substantially similar to those attending the alleged occurrence."
The argument made by counsel for the State in support of their application for rehearing was that the weight of authority is against our conclusion.
We have examined the jurisprudence further and find that our holding is not against, but in accord with, the views *Page 155 expressed in a great majority of the cases where the experiments considered were the same or practically the same as the one in this case. The books are full of cases dealing with "experimental evidence," and in all of them the rule that such evidence is inadmissible unless it is shown that the experiment was made "under circumstances and conditions substantially similar to those attending the alleged occurrence" is recognized. And, in practically all the cases, it is said that the question whether or not the experiment was made under such conditions and circumstances as to make the evidence admissible or inadmissible is one which must be determined by the court. But that does not mean that the ruling of the trial court as to the admissibility of such testimony is final, because the rulings of trial courts on the question of the admissibility of evidence are always subject to review.
In the case at bar the "alleged occurrence" was the shooting of a human being in the head. The experiment was made by shooting at white cardboard. Recognizing as we do, and as we have always done, the general rule above stated, we need no precedent to guide us in reaching the conclusion that the trial judge erred in this case by admitting evidence of the experiment. The reason is that there is no similarity between the "kind of stuff or substance," between the nature and texture of the hard, white, cardboard used as a target in making the experiment, and the skin of a human being, and for that reason the conclusion is inescapable that the results *Page 156 as to powder marks or burns might be quite different.
But, aside from our own personal opinion, we find on further investigation that the weight of authority supports the view that where the "alleged occurrence" was gunshot wounds on the head or on any exposed part of the body and where the target used in making the experiment was cardboard, pasteboard, or white paper, the experimental evidence is inadmissible.
In our original opinion we cited nine cases in support of this view. The first six are in point, but the others, State v. Hyde, Commonwealth v. Piper, and Jim v. State, are not. These were inadvertently included in this group. They may support the general rule, but have no application to white paper or cardboard experiments.
In State v. Allison, which we cited, the experiment was made by shooting at a target made of cotton pasted upon cardboard. Evidence of this experiment was held inadmissible. In McLendon v. State, the experiment was made by shooting at white paper and cloth. In Morton v. State, the experiment was made by shooting at pasteboard. In Epperson v. Commonwealth of Kentucky, the target used for the experiment was white paper. In the Federal case of New York Life Insurance Company v. Alman, the target used for the experiment was cardboard. In State v. Justus, the target was white paper. In each of these cases evidence of the experiment was rejected.
In addition to these cases, which unquestionably support our conclusions, we *Page 157 now cite the following cases, which are directly in point: Reagan v. State, 84 Tex.Crim. R., 208 S.W. 523, where white paper was used as a target; People v. Solani, 6 Cal. App. 103, 91 P. 654, where white paper was used as a target; McAlpine v. Fidelity Casualty Co., 134 Minn. 192, 158 N.W. 967, target white paper.
Turning now to the cases cited by the State, we find that only two or three of them are in point, because the substance used as targets was altogether different in nature and texture from cardboard or white paper.
In Thrawley v. State, 153 Ind. 375, 55 N.E. 95, the target used for the experiment was a blotting pad. In Irby v. State,18 Okla. Crim. 671, 197 P. 526, the targets were a napkin and tissue paper. In Fein v. Covenant Mut. Ben. Ass'n, 60 Ill. App. 274, the target was white paper. These cases are apparently in conflict with those which we have cited in support of our view.
However, the other cases cited by the State are not in point. In State v. Gruber, 150 Wash. 66, 272 P. 89, cited by the State, the experiments were made by shooting at cloth substantially of the same nature and texture as the clothing worn by the deceased. To the same effect is People v. Fiori, 123 A.D. 174, 108 N YS. 416. In Huestis v. Ætna Life Ins. Co., 131 Minn. 461, 155 N.W. 643, sheets of cotton wadding were used as a target. The State cited People v. Solani, supra, but that case is admittedly against its contentions. The State cited also Boyd v. State, 14 Lea (Tenn.) 161, where the target was cloth *Page 158 like that worn by the deceased; Lillie v. State, 72 Neb. 228, 100 N.W. 316, where the shots which killed the deceased passed through a window curtain and the target used for the experiment was a piece of muslin; Pollock v. State, 136 Wis. 136, 116 N.W. 851, where the target used for the experiment was the vest worn by the deceased at the time he was shot; State v. Copenbarger, 52 Idaho, 441, 16 P.2d 383, where experiments were made by shooting at cloth, cardboard, wood fiber, and beef ribs. But the experiments in that case were not made for the purpose of showing powder burns or powder marks, but to show the difference in appearance of the bullet hole through cloth on the entrance and exit sides. And State v. Asbell, 57 Kan. 398, 46 P. 770, 771, 773, where targets of hair and white paper were used. The court said: "We think the testimony was competent for the purpose of determining the effect of a pistol shot fired at human hair, and to show how much the powder marks from that particular pistol would scatter." But it was not held that the experiment with white paper as a target was admissible. In Sullivan v. Commonwealth, 93 Pa. 284, it was shown that there were powder marks or burns "upon the person or clothing of the deceased," and evidence of an experiment where the target was a piece of muslin was admitted.
The Louisiana case of State v. Dunn, 161 La. 532, 109 So. 56, has no application to the case now under consideration.
For an illuminating and exhaustive discussion of the particular point here involved, *Page 159 we refer especially to the case of Epperson v. Commonwealth, supra, where numerous authorities are cited and digested.
For the reasons assigned, our former decree is reinstated and made the final decree of the court.