dissenting.
I regret that I am unable to agree with the majority opinion in this case. I do not think that the evidence is sufficient to sustain the judgment of the court below. It is not strong enough to support a verdict higher than manslaughter.
The second paragraph of the syllabus seems to be objectionable because it takes from the jury the exercise of its proper functions. It attempts to confer upon the jury power not contemplated by the constitution and laws of the state. ■
It was bad for the defendant to use a razor. It should be remembered, however, that the man who was killed had the defendant by the throat very shortly before the razor was used.
In reading the evidence of Dr. Dodson, I find the statement that there"were two cuts. The doctor testified: “I said it appeared to me that after the cut had been made there had been a stab wound in the same cut.” There is testimony that when the man’s throat was cut the defendant’s arm went out suddenly. If there was a cut and after-wards a stab wound in the same cut, it is important how much time elapsed. If the deceased had the defendant by the throat, and the defendant drew the razor to compel the deceased to let loose and made the first wound, if there was a wound, in attempting to get the deceased to let loose, it is highly important what time elapsed between the making of the first wound and the making of the second wound. Of course, there is a good deal of uncertainty in the doctor’s testimony. The doctor testified: “He first said that he went out there and they got into a fight, and *508this fellow had him by the neck with his right hand, and he had a hold of him with his other hand. Q. Who did? A. McKinzey, a hold of his left hand, and he was choking him, and he said he pulled out his razor and he made a. slash at him, and when he slashed at him the other fellow threw up his arm and hit him on the under side of the arm, hand, here, and that threw his hand up, he said, and threw it into his throat; that was his statement.” The doctor comes to the conclusion that it was impossible to do it in that way. “Q. Now, what difference does it make? Can’t I make the same cut at you, this position, as if it was this way? A. No, sir; you cannot reach back that far and make that cut; no other man can. If you was in the front of him you would not; you have got to reach around. Q. What angle do I have to stand beside of you to make that cut? A. You could stand at any angle you wanted to. * * * Q. Now, if I am on the side of you, then how did it produce, that big gash there, the one that you said was more of a stab? A. It didn’t produce it at that first move, I say that my opinion is there was a second strike there, sir, and I have said that all the time. Q. And you still stick to it? A. Yes, sir; I do. I believe it, and all the testimony I have heard there don’t change my mind a bit.”
In People v. Fritch, 170 Mich. 258, the defendant was-prosecuted for causing death by a criminal operation. The state’s case was contained in hypothetical questions'asked of and answered by medical experts. In that case it was held improper for a medical expert to give his opinion of whether a criminal operation had been performed; it being the province of the court, and not of expert witnesses, to advise the jury concerning the facts necessary to establish a crime. In the same case it was held that a hypothetical question was improper which asked a medical expert for his opinion as to whether the deceased was pregnant, supposing she had taken cotton root, possessed a catheter, had made an appointment with the defendant to perform an operation upon certain terms; these things-included in the hypothetical question were held to be non*509scientific data which the jury were able to comprehend and estimate without the aid of expert witnesses. It will be seen that case is very much like the instant case so far as the testimony of Dr. Dodson relating to the wound is concerned.. Because of the length of the discussion it is impossible to fully report it.
The Michigan supreme court quotes Mr. Justice Campbell in Evans v. People, 12 Mich. 27, where he says that, when a scientific witness testifies to matters Avithin the comprehension of ordinary witnesses, he stands on the same footing with them as to all such testimony, and as to such matters can only give his opinions where any other observer might do so. Let that idea be applied to the instant case for a moment, and we will see that Dr. Dodson’s testimony should not have been taken. It was for the jury to determine whether that which Dodson testified to Avas true or not. A mere ordinary bystander would not be allowed to form his opinion and testify to it, because, if he did so, he would be croAvding the jury out. The matter was one for the jury to determine. The Michigan court say: “It does not require argument to prove that no medical witness called in the case at bar should have been asked for or permitted to give .the opinion that a criminal operation had been performed. To say that in this case any operation must have been criminal does not meet the objection. It was the duty and province of the court, not that of expert witnesses, to advise the jury concerning the facts necessary to establish a crime.”
The Michigan court further proceeds: “The second hypothetical question, set out in the statement of facts herein, called upon the witness to state who, in his opinion, committed the criminal act, and, by necessary inference, from all data supplied by the question itself, called upon the witness to state, in substance and effect, that respondent was guilty as charged. The court interposed and the question was not answered. But the hypothetical question first above set out is little less objectionable. Undoubtedly, it was competent to include in the premises for an expert opinion the fact that the girl supposed herself *510to be pregnant, having passed two monthly periods, be-" cause that fact, like a statement of it made by the girl as patient to the witness as her physician, might properly be considered. So all the evidence afforded by observation of the body of the deceased, considered with respect to the probable time when she died and the immersion of the body in water, should have been included in the premises stated. But how is it possible for a scientific opinion in the case to be aided by the facts that bricks were placed in the sacks with portions of the body, that deceased had taken cotton root, possessed a catheter, had made an appointment with respondent about an operation upon terms stated, that the body had been carried in an automobile from respondent’s office to Ecorse creek, that her body was dismembered in the office of the physician consulted by her? It was to data and observations impossible to lay before the jury and be comprehended by them, and such connecting and incidental data as afforded a basis for scientific opinion and deduction, that the experts should have been confined
The Michigan case is very recent, and may be consulted with profit because intended to be fair, and it is instructive as well as'apparently fair and the result of much labor.
The defendant had the same right to defend his wife from assault that he would have had if she had been a moral woman and he had been a moral man.
I think that what the deceased said and did was properly part of the res gestee, and shows the provocation suffered by the defendant, and that it was error to exclude it.