Adams v. People 63 N.Y. 621

William Adams, Plaintiff in Error, v. The People of the State of New York, Defendants in Error.

(Argued November 10, 1875;

decided November 23, 1875.)

Plaintiff in error was indicted for assault and battery with intent to kill. (Reported below, 8 Hun, 654.)

On the trial the complainant positively identified the prisoner as one of the parties who committed the assault. To impair his credibility, evidence was given on the part of the prisoner tending to show that complainant was near-sighted, and sometimes used glasses. A witness was then called for the prosecution who testified that he had known complainant for fourteen years, working in the same store, and was on intimate terms with him. This witness, without any specific question being put, testified that he considered plaintiff’s eye-sight to be good; that he could distinguish a person across the room, and that he used glasses to read fine print. The prisoner’s counsel asked to have this testimony stricken out as incompetent. The court refused, and exception was taken. It was urged, upon appeal, that the evidence was improper, as being an opinion of one notan expert. Held, that the question whether the complainant’s eye-sight was good was one of fact, in respect to which a layman acquainted with him could testify; but that the objection that it was matter of opinion was not taken below ; and even if that part of the statement of the witness. *622that he considered complainant’s eye-sight good, was liable to that objection, it could not avail, as the motion to strike out applied to the entire statement, a portion of which was clearly competent.

This was the only exception relied upon or discussed in the opinion.

Mitchell Laird for the plaintiff in error.

Benjamin K Phelps for the defendants in error.