the matters stated in the memoranda, independent thereof, the paper itself is not admissible; nor is it admissible, in any case, to prove a fact not material to the issue.2 - § 285. Proper Practice where Witness is blind or cannot read. Where the witness is blind at the time of the trial, a contemporaneous writing made by himself-in the case in hand, an unstamped receipt for money given by him — though otherwise inadmissible, may nevertheless be read to the witness to refresh his recollection.3 So, also, where a paper is signed with the mark of a witness who cannot read or write, it may be read over to him for the same purpose.1 1 Meacham v. Pell, 51 Barb. (N. Y.) 65. The rule is well stated in a recent Alabama case: "A witness may refresh his memory by examining a memorandum made by himself, or known and recognized by him as stating the facts truly, when, after such examination, he can testify to the facts as matter of independent recollection, but the memorandum is not thereby made evidence. If the memory of the witness is not refreshed by an examination of the memorandum so that he can testify to the facts as matter of independent recollection, but he can, nevertheless, testify that, at or about the time the memorandum was made, he knew its contents, and he knew them to be correct and true, his testimony and the memorandum are both competent evidence; but if he did not know the contents of the memorandum to be true when it was made, although he saw it made, the memorandum is not admissible evidence." Acklen v. Hick man, 63 Ala. 494; s. c., 35 Am. Rep. 54. 2 Wolfborough v. Alton, 18 N. H. 185. For other cases holding the memoranda inadmissible, see Olds v. Powell, 10 Ala. 393; Rutherford v. Branch Bank at Mobile, 14 Ala. 92; Commonwealth v. Jeffs, 132 Mass. 5; Butler v. Benson, 1 Barb. (N. Y.) 526; Bissell v. Russell, 23 Hun (N. Y.) 659; Selover v. Rexford, 52 Pa. St. 308. See also a learned discussion of the earlier cases in note 587, 2 Phil. Ev. 5th Amer. Ed. 8 Per Lord Tenderden, in Catt v. Howard, 3 Stark. 3. 4 Commonwealth v. Fox, 7 Gray (Mass.) 585, where, however, it is held that it should not be read in the presence of the jury, but that the witness should withdraw with one of the counsel on each side, and have it read to him by them, without comment. PART IV.-OPINIONS. CHAPTER XXV. OPINIONS OF NON-PROFESSIONAL WITNESSES. § 286. The General Rule excluding Opinions. § 287. Scope and Extent of the Rule. § 288. Its Limits and Exceptions. § 289. Opinions as to Value. § 290. Opinions as to Amount of Damage. § 291. Opinions as to Sanity and Mental Capacity. § 286. The General Rule excluding Opinions. It is an elementary principle of the law of evidence that the opinions of non-professional witnesses are not admissible, except in a few special cases, resting upon peculiar circumstances.1 Such a witness must testify to facts themselves, and he will not be allowed to testify to mere conclusions or deductions from facts; or his impressions, suppositions, or understanding of a matter. To deduce conclusions from facts proved is the 1 Berry v. State, 10 Ga. 511; Mobile &c. Ins. Co. v. McMillan, 31 Ala. 711; Robertson v. Stark, 15 N. H. 109; Spear v. Richardson, 34 N. H. 428; Gibson v. Williams, 4 Wend. (N. Y.) 320; Zachary v. Swanger, 1 Oreg. 92; Carr v. Nothern Liberties, 35 Pa. St. 324; Lester v. Pittsford, 7 Vt. 161. 2 Gregory v. Walker, 38 Ala. 26; Perry v. Graham, 18 Ala. 822; Dickerson v. Johnson, 24 Ark. 251; Jones v. Childs, 2 Dana (Ky.) 25; McConnell v. New Orleans, 15 La. Ann. 410; Sparr v. Wellman, 11 Mo. 230; Morehouse v. Mathews, 2 N. Y. 514; Crounse v. Fitch, 14 Abb. (N. Y.) Pr. 346; Bailey v. Pool, 13 Ired. (N. C.) L. 404; Albatross v. Wayne, 16 Ohio, 513; 3 Chaires v. Brady, 10 Fla. 133; province of the jury, not that of the witness.1 Thus, the testimony of a witness that he understands that a person is dead, is not sufficient evidence of his death.2 So, the fact that "he considered" a certain transaction a loan, is not evidence; nor can he state that a party was "largely embarrassed with debts," that being a statement of conclusions, and not of facts.1 § 287. Scope and Extent of the Rule. (1) In general. The admissibility of opinion evidence, whether of experts or ordinary witnesses, should be confined to cases in which, from the very nature of the subject, facts disconnected from such opinions cannot be so presented to a jury as to enable them to pass upon the question with the requisite knowledge and justice. If the jury may be supposed to have the same degree of knowledge of the subject as the witness, his opinion is in no case admissible. So held of the opinion of a witness as to the age of a person, based entirely upon his appearance. Such evidence is an invasion of the province of the jury. Thus a witness cannot be heard to give an 31 Mo. 458; Hibbard v. Russell, 16 1 Largan v. Central R. R. Co., 40 Cal. 272; Gavisk v. Pacific R. R. Co., 49 Mo. 274. 2 Tibbetts v. Flanders, 18 N. H. 284. 3 Saltmarsh v. Bower, 34 Ala. 613. 4 Massey v. Walker, 10 Ala. 288; Nuckalls v. Pinkston, 38 Ala. 615; Babcock v. Middlesex &c. Bank, 28 Conn. 302. 5 Parker v. Chambers, 24 Ga. 518. In speaking of the competency as evidence of the opinion of non-professional witnesses, the Supreme Court of Massachusetts says: "The competency of this evidence rests upon two necessary conditions: first, that the subject-matter to which the testimony relates cannot be reproduced or described to the jury precisely as it appeared to the witness at the time; and second, that the facts upon which the witness is called to express his opinion are such as men in general are capable of comprehending and understanding. When these conditions have been complied with or fulfilled in a given case, the court must then pass upon the question, whether the witness had the opportunity and means of inquiry, and was careful and intelligent in his observation and examination. It is not the mere qualification of the witness, but the extent and thoroughness of his examination into the specific facts to which the inquiry relates, and the general character of those facts, as affording to one, having his opportunity to judge, the requisite means to form an opinion. The same rule applies to this class of testimony, as to the testimony of experts, whether the expert is competent by his study or business, and whether he has qualified himself to testify, or had proper opportunity to examine, are preliminary questions for the court." Com. v. Sturtevant, 117 Mass. 122, 137. 6 Sowers v. Dukes, 8 Minn. 23; Cooper v. State, 23 Tex. 331. 7 Morse v. State, 6 Conn. 9. 8 Bluitt v. State, 12 Tex. App. 39; Eaton v. Woolly, 28 Wis. 628. |