
    The People of the State of New York, Plaintiff in Error, v. Charles Manke, Defendant in Error.
    (Argued September SO, 1879;
    decided October 7, 1879.)
    Reported below, 17 Hun, 410.
    Defendant was indicted, for murder. Upon the trial it was proved that the person whom the defendant was charged with killing was shot, and near the place where the killing is alleged to have taken place was found some paper, which was claimed by the district-attorney to have been the wadding with which the gun was loaded. This alleged wadding was produced at the trial, and a witness, who stated that ho had used fire-arms a great deal, and was familiar with the appearance of wadding shot from a gun, was asked this question : “You may answer whether that (the paper found as stated) had that appearance or not ? ” This and the answer to it were objected to on the part of the prisoner, on the ground that the subject was not one of science or skill, and the opinion of the witness was incompetent and improper; that the paper and its appearance should be described and the jury should draw the inference. The court overruled the objection and allowed the witness, as far as he could, to state the facts as he observed them, and the prisoner excepted. The. witness answered: “ Yes, sir ; it had the appearance of being wadding shot from a gun; ” and the only fact he stated was that it was burned. The General Term reversed the judgment and granted a now trial, holding that this exception was well taken. The court here say, “ we concur generally in the opinion there pronounced. We regard the question as a border one ; and its competency is not free from doubt. We should ordinarily hesitate much before reversing a judgment for the reception of such evidence. But as the court below has reversed the conviction and granted a new trial, we do not feel sufficiently certain that the question ought to have been answered to reverse its judgment and render a decision, the effect of which will be to subject the defendant to capital punishment. We give the defendant the benefit of the doubt."
    
      Robert G. Titus for plaintiff in error.
    
      Wm. H. Gurney for defendant in error.
   Ter Guriam

opinion for affirmance.

All concur.

Order affirmed.  