
    William Moore v. The State of Ohio.
    A physician can not, as a witness, be allowed soto express his professional opinion, as necessarily to imply his belief of the existence of material facts outside of his art or profession, and not within his own knowledge, and which are not in their nature subject-matters of mere opinion.
    Error to the common pleas of Pickaway county. Reserved in the district court.
    The plaintiff in error was indicted under the 4th section of the crimes act (1 S. & C. 404), for having carnal knowledge of his daughter, Fanny Moore, forcibly and against her will. The indictment also contained counts charging the crime to be incest, and assault with intent to commit a rape. The defendant pleaded not guilty, and upon trial was convicted under the count for rape, and acquitted under the other counts, and was sentenced to the penitentiary for life.
    During the trial the state called as a witness a physician, who testified that he made an examination of the daughter, Fanny Moore, some four days after the time when the crime was charged to have been committed. He said that he found on her person evidences of violence, and also of disease, but that there was no means of determining with certainty whether the disease was gonorrhoea or vaginitis, the pus and other evidences of disease being indistinguishable in the two cases. The witness also testified that he made an examination of the person of the prisoner at the same time, and found that he was affected with gonorrhoea.
    
    The prosecuting attorney then asked the witness what, in his opinion, was the disease of Fanny Moore at the time he examined her. To this question the witness replied: That *judging-from the examination of said Fanny alone, his mind was in suspense, but that taking into consideration the facts aforesaid in regard to the pus upon her drawers, and the fact that said William Moore had gonorrhoea, he was of opinion that said Fanny had gonorrhoea at the time he so examined her. To which testimony the-counsel for the defendant objected, and asked the court to rule it out. But the court overruled the motion, and held the testimony to be competent.
    After the testimony had closed, the court charged the jury that they were not to regard the fact, testified to by said physician, that the prisoner had gonorrhoea, as evidence that Fanny had the same disease, but merely as evidence tending to show that th,e prisoner was the person who violated her, if in fact she had been violated. But the court did not tell the jury to disregard the opinion of the physician, that Fanny’s disease was gonorrhoea.
    
    The evidence showed that Fanny was at the time a child, between five and six years of age; and the court charged the jury that they should presume, in the absence of proof to the contrary, that she was incapable of giving consent, the rule of law being that such presumption attaches in all cases where the child is under ten years of age.
    To which rulings and instructions the prisoner’s counsel excepted.
    The errors assigned are: 1. That the court misdirected the jury; and, 2. That the testimony of the physician was improperly admitted.
    
      
      Henry F. Page, for plaintiff in error:
    The opinion of the physician was inadmissible. It was competent for him, as an expert, to give an opinion whether Fanny Moore-had a venereal disease, and whether the accused had that disease- or not; but if his opinion that Fanny had that disease was based, on the fact that the prisoner had it, it was not evidence.
    It was not the opinion of an expert. It was unnecessary to call a physician to draw that inference. It was a matter of argument and not of science. It was a question for the jury, but not for any witness.
    *That this opinion was calculated to prejudice the prisoner greatly, is evident. It should have been rejected as illegal testimony when offered. McCurry v. Hooper, 12 Ala. 823.
    After the error had been committed, the court should have instructed the jury, in the most clear and explicit manner, that this opinion of the physician was not evidence at all, and should be-wholly rejected. This was not done. The court told the jury to discard the examination of Moore for particular purposes, but not to discard the physician’s opinion. The charge was not clear, but left the matter in doubt, and was calculated to bewilder the minds-of the jury.
    That it is error to admit illegal evidence, and then exclude it, is-shown by the following authorities : 6 Binn. 430; 5 Serg. & R. 352; 1 Penn. 388; 31 Penn. St. 193; The State v. Mix, 15 Mo. 168; The State v. Wolf, 15 Ib. —; 15 Ala. 623; 7 Wend. 193.
    That instructions calculated to mislead, by being ambiguous or equivocal, are erroneous, is shown by the following cases: 31 Mo. 128; 15 Gratt. 230; 16 Jones (Law), N. C. 273; 1 Met. (Ky.) 83; 13 Cal. 345; 33 Penn. St. 318; 35 N. Y. 516; 19 N. Y. 299; 5 Blackf. 580.
    
      Itobert M. Briggs, also for plaintiff in error:
    The court below erred in charging the jury that they should presume, in the absence of proof to the contrary, that Fanny Moore being only a little over five years of age, was incapable of consenting to sexual intercourse.
    The instruction was based upon an alleged common-law pre sumption.' To that we answer, (1) that there never was, at common law, such a presumption; and (2) if there was or had been, it had and has no application in Ohio: because (1) if it existed, it was an essential element of a common-law crime, of which, as such, we have none in Ohio; and (2) our legislation excludes the claim that the crime defined by the 4th section of our crimes act can be made out or shown to exist by proving that the person was a female child under the age of ten years. 1 S. & C. Stat. 404, secs. 4, 5 ; Smith v. The State, 12 Ohio St. 469, 472; Rex v. Dead, 1 Den. C. C. 377; 2 Car. & Kir. 957; 1 Bishop’s Crim. Law, sec. 411; *Snyder v. The State, 3 Humphrey, 478; The State v. Farmer, 4 Iredell, 224; The State v. Cherry, 1 Swan, 160; Howard v. The State, 11 Ohio St. 328; Commonwealth v Bennett, 2 Va. Cas. 235.
    
      W. H. West (attorney-general), B. A. Harrison, and Joseph Olds (prosecuting attorney), for the state:
    1. The testimony of the physician was competent and properly admitted.
    He did not state that his opinion was predicated in part upon the fact that Moore did have sexual intercourse with the child, and it will not be presumed that it was, when he did not so state, directly or indirectly, or by necessary implication.
    The opinion was founded on a comparison of diseases. The child was affected by a disease whose nature and character, contemplated alone, he could not'definitely determine. But he discovered a disease on another person, the character and nature of which was known and admitted gonorrhoea. By comparing the disease on the •child with the known disease on the man, he found them to be the same. By thus instituting a comparison with that whose type and ■character was known and certain, he formed an opinion as to the type and character of that which, contemplated by itself, was uncertain. But the fact that the disease with which the comparison was made was upon the prisoner, did not enter as an element of this ■opinion. Neither the fact of the child’s disease, nor the opinion of its nature or character, depended upon the fact that the prisoner was diseased. The opinion was competent to fix the character of the child’s disease.
    2. In the charge of the court as to the nature and character of the child’s disease, the fact that gonorrhoea was upon the prisoner, .and every inference and opinion founded upon such fact, were excluded from the consideration of the jury. But they were permitted, after they should first find the nature of the child’s disease, and that she had been violated, etc., then, and only then, to consider the fact that the prisoner had gonorrhoea, as a circumstance to identify him as the guilty party. All of which was clearly proper.
    ^Surely the jury could not have understood the court as instructing them that they could not consider the fact that the prisoner had gonorrhoea, to establish the fact that the child had it, and yet that they might consider as competent evidence the opinion of a witness that the child had gonorrhoea from the fact that the prisoner had it, if such opinion had been deduced by such witness as an inference of reasoning purely, and not as the result of a scientific comparison.
    As to the testimony of experts, see 1 Redf. on Railways, 554; B. & I. R. R. Co. v. Bailey, 11 Ohio St. 333 ; Woodberry v. O’Lear, 7 Gray, 467; Hunt v. Gas Light Company, 8 Allen, 169; Seaver v. B. & M. R. R. Co., 14 Gray, 466; 38 Vt. 454; 45 Maine, 392.
    3. The court properly instructed the jury in regard to the child’s incapacity to consent. If the female is of tender age, the common law conclusively presumes that she did not consent; and this age, being not precisely determined in the common law, was settled by the statute of 18 Eliz. c. 7, at ten years. 3 Greenl. Ev., see. 211; Bishop’s Crim. Law, sec. 41.
    The only change in the rule of the common law on this subject, which it can be claimed has been wrought by the statute, is, that while the presumption in the common law was a conclusive one, under this statute it is a rebutable presumption.
   Welch, J.

We see no error in the instruction of the court. It has already been ruled at the present term, in the case of O’Meara v. The State, that the rule of the common law, by which a female child under ten years of age is, prima facie, held incapable of giving consent to an act of carnal knowledge, is to be regarded as the law of Ohio. If the court were right in so ruling, there was, of course, no error in charging, as the court did in the present case, that the presumption of inability attaches when the child is under six years of age.

But we are of opinion that the court erred in refusing to rule out so much of the testimony of the physician as was objected to on behalf of the prisoner. A medical or other professional witness, can not be allowed to give opinions outside *of his art or profession. The witness in this case had already declared his inability to form-any opinion of the disease of the child from mere inspection and examination. As a question of science, he said it was impossible to determine whether the disease was gonorrhoea or vaginitis, the symptoms and appearances of the two diseases being indistinguishable. But he was permitted to express to the jury his opinion, that the disease was gonorrhoea, founded in part upon the fact that he found that disease upon the father. The opinion thus expressed necessarily involved the further opinion, that the father had been in contact with her in such a way as to communicate the-disease. "Whether the father had so been in contact with her, was not a subject-matter of professional opinion. It was a question of fact for the jury, determinable by ordinary evidence, and requiring' no peculiar science or skill. The physician might properly have been permitted to say, as a matter of professional science, that the disease was in his opinion contagious; or that, if the father had been in contact with her, he would give it as his opinion-that her disease was also gonorrhoea. But he had no right, directly or indirectly, to express any opinion as to the fact that the father-had been so with her; because his opinion, as to that fact, must necessarily have been formed upon hearsay, or other incompetent testimony.

Nor do we think the bad effect which this testimony was calculated to have upon the minds of the jury, was obviated or countervailed by the charge of the court. The jury were told by the court, that the fact that the prisoner had gonorrhoea, was not to be regarded by them as evidence that the disease of the child was the same; but they were not told to reject the opinion of the physician, or not to regard it as evidence that the father had been with the-child so as to communicate the disease.

Judgment reversed, and cause remanded for a new trial.

Day, C. J., and White, Brinkerhoee, and Scott, JJ"., concurred.. 
      
       Ante, p. 515.
     