#### STATE v. DOCKERY McLAUGHLIN.

(Decided May 1, 1900.)

Genera,!, Rule, Opinions Not Evidence — Exceptions: Experts, Identity, Necessity.

1. The general rule i's, facts and not opinions are to be listened to by the jury. There are some exceptions: (1) The opinion of experts. (2) Opinions on the question of identity. (3) Opinions received from necessity.

2. The committing Justice may state what the prosecutrix testified to before him; the jury who heard her evidence before them are to determine whether her two statements were substantially the same.

INDICTMENT foi’ the ra.pe of Harriet MdMiílan. The prisoner was convicted at July Special Term, 1899, of the Eastern District Criminal Court of Robeson County, Battle, J., presiding, and appealed to> the Superior' Court, assigning as error admission of improper evidences The prosecutrix had been examined and cross-examined. One of the committing Justices, D. L. Stewart, was examined on. the part of the prisoner to show discrepancies in the evidence: of prose-cutrix in the Justice’s Court, and on the present trial. On his cross-examination, the State: proposed to ask the: witness if her testimony in this court was substantially the same as it was on the hearing before him in Justice’s Court. Objection by the prisoner. Question admitted. Answer: Yes, she testified to about the same on both trials. Prisoner excepts. The prisoner was convicted, and judgment of death was passed on him. He appealed to the Supreme Court, Timberlahe, J., presiding, who adjudged at Chambers on December 28, 1899, that there was error in the ruling of said Criminal Court, and that the defendant is entitled to a new *1081trial. The Solicitor, C. M. McLean, excepted, and appealed to< the Supreme Court.

Messrs. McLean, & McLean, with Attorney-Generalfor the State.

Messrs. J. D. Sha/w, Jr., and G. B. Patterson, for defendant.

Faircloth, C. J.

The defendant was convicted of the crime of rape, in the Criminal Court. On appeal to the Superior Court his Honor held that there was error in the trial, and the State appealed to this Court.

During the trial the prosecutrix, Harriet McMillan, was examined and cross-examined. The defendant examined the committing Justice of tíre Peace as to the evidence of the prosecutrix before him, who recited her* evidence fully to the jury for the purpose of showing discrepancies in her' two statements. The State on cross-examination proposed to ask the witness, “if the testimony of Harriet McMillan, the prosecutrix, in this court was substantially the same as it was on the hearing before Mm in the Justice’s Court.” The objection of tire defendant was overruled, and the question admitted, and the defendant excepted. The witness said: “She testified to about the same on both trials.”

The admission of this question and answer was error'. The general rule of law is that the jury (or the Judge, as the case may be) are the triers of matters of dispute, and form their conclusions from the facts before them, and not upon the opinions of others on the subject. So that, facts and not opinions are to be listened to by the .jury.

To this general rule there are some exceptions: 1. The opinion of’experts. 2. Opinions on the question of identity. 3. Opinions received from necessity, i. e., when from tire *1082nature of the subject under investigation, no' better evidence can be obtained. Illustration: Whether A was sick on a certain day, the opinion of a person who saw Mm on that day that A appeared sick, is admissible. McKee v. Nelson, 4 Cowan, 355.

The ordinary witness is not embraced within these exceptions, and he therefore falls under the general rule. That is the case in this instance.

Whether the two statements by tire prosecutrix were substantially the same, is a fact to be-determined by the jury, and not the witness. That would in effect make the witness the jury as to that fact. It was competent for the witness to state what the prosecutrix said on the former trial, and the jury would then determine whether the two statements were the same or not.

The converse of the principle is stated thus: “To impeach the credibility of a witness by proving that he swore differently as to a particular fact on a former trial, it is not necessary that the impeaching witness should' be able to state all that the impeached witness then deposed to-; it is sufficient if he is able to prove the repugnancy as to the particular fact, with regard to which it is alleged'to exist.” Edwards v. Sullivan, 30 N. C., 302.

There must, therefore, be a new trial in the Criminal Court, and it is so ordered.

The judgment of the Superior Court was correct, and it is

Affirmed.