an opinion upon the very issue involved, a danger from this would be to substitute the opinion of the experts for that of the jury themselves, whose duty it is to find the facts and whose verdict in only an expression of their deductions from the facts."
This case also cites the case of Gibson vs. Gibson in 9, Yeager, 329, which is one of the early cases, and which is to the same effect.
And again, in the case of Cumberland Telephone and Telegraph Company vs. Mill Company, 109 Tennessee, 381, the court said it is an accepted rule that while experts may testify as to what, in their opinion, may or may not have been the cause of a given result or condition, it is not permissible for them to give their opinion as to the only fact that the jury was organized to determine, the question now under consideration required the witness to enter the domain of the jury and to pass upon one of the ultimate propositions inhering in the verdict.
Precedents Are Cited.
Now, this same position, if the court please, has been followed in the case of Cumberland Telephone and Telegraph Company vs. Mill Company—the one I have just cited, in Railroad Company vs. Brangee, which is a strong case, 114 Tennessee, 35, and in Kirkpatrick vs. Kirkpatrick, 1 Tennessee Cases, at 257; Owen vs. Jackson, 1 Appealed Cases, 413, where the court stated:
"Upon the facts to be determined by the jury no witness, expert or nonexpert, should be asked his conclusion upon any material fact that is to be passed upon by the jury."
In the case of Memphis Street Railway vs. Hicks, 1 Cates, File 13, it is said: "It is not permissable to ask a witness, expert or otherwise, his opinion upon issues which are to be determined by the jury. It is proper to propound to a witness a question that calls for an expression of opinion as to any point that the jury will, of necessity, have to determine."
Now, if the court please, as the state sees this case, the only issue this jury has to pass upon is whether or not what John Scopes taught is a violation of the law. That is the issue, and it is the only issue that the jury is to pass upon, and we maintain that this cannot be the subject of expert testimony. To permit an expert to testify upon this issue would be to substantiate trial by experts for trial by jury, and to announce to the world your honor's belief that this jury is too stupid to determine a simple question of fact. Admission of this testimony would be followed and, in our opinion, it would be reversible error. I, therefore, respectfully urge your honor to sustain the objection of the state to the introduction of this testimony.
The Court—Be at ease for two or three minutes.
(After a recess of fifteen minutes the hearing of this case was resumed.)
The Court—We have some lawyers in the case who, at times, indulge in a lot of wit. I do not know who is going to argue the case, and I do not know whether they are going to display their wit or not, but if they do, I don't want any manifestations in the courtroom, for two reasons: The first reason is that it is improper; the second reason is that this floor of the courthouse building is heavily burdened with weight. I do not want to alarm you; I do not know myself, for I am not a mechanic, but I do know that the floor is heavily weighted and the least vibration might cause something to happen, and applause might start trouble.
Mr. Hays—If your honor please, I am rather embarrassed by yow allusion that there will be such thunderous applause that the building might come down.
The Court—I believe the other vibrations won't cause it. I will say to you lawyers, gentlemen, that this is, of course a big question. I don't want any lawyer to feel that he has to be in a hurry. Take your time. Of course, I do not want you to occupy unreasonable time, but I want the information.
Hays is Astounded.
Mr. Hays—If your honor please, I am learning every day more about
