Opinion

An inference or conclusion drawn by a witness, expert, juror, judge or court, or counsel; and regards either or both facts and law. See Value. 1. The exception to the rule that the opinion of a witness is not competent evidence is not confined to the case of expert testimony. Wliile it is necessary that the witness should first state the facts upon which he bases his opinion, it is not necessary to do so where the facts are not capable of reproductio^j^ 1 Rowland v. Kleber, 1 Pittsb. 71 (1853). • 2 Thomas v. Lennon, 14 F. E. 849 (1883), cases, Lowell, Cir. J. » Eaton V. Smith, 20 Pick. 157 (18gS). such a way as to bring before the minds of the jury the condition of things upon which he bases his opinion. Such evidence is competent from the necessity of the case. ^ Facts which are made up of a great variety of circumstances and a combination of appearances, which, from the infirmity of language, cannot be properly described, may be shown by witnesses who observed them; and, where their observation is such as to justify it, they may state the conclusions of their own minds. In this category may be placed matters involving magnitude or quantities, portions of time, space, motion, gravitation, value, and such as relate to the condition or appearances of persons or things. On the same principle, the emotions or feelings of persons, such as grief, joy, hope, despondency, anger, fear, and excitement, may be likewise shown.* See Character; Expert; Representation, 2. S. The courts are not agreed as to the knowledge upon which the opinion of a juror must rest in order to render him Incompetent, or whether the opinion must be accompanied by malice or ill-will; but all hold that it must be foimded upon evidence, and he more than a mere impression, — if hypothetical only, the partiality is not so manifest as necessarily to set the juror aside. For an opinion need not make him impartial. An impression formed from reading newspapers does not necessarily unfit one for the service. ^ Upon the trial of the issue of fact raised by a challenge to a juror, in a criminal case, on the ground that he has formed and expressed an opinion as to the issue, the court is practically called upon to say whether the nature and strength of the opinion are such as in law necessarily raise the presumption of partiality. The question is one of mixed law and fact — the latter to be tried upon evidence. The finding ought not to be set aside, unless the error is manifest, unless it be clearly made to appear that, upon the evidence, the court should have found that the juror had formed such an opinion that he could not in law be deemed Impartial. The case must be one in which it is manifest that the law left nothing to the conscience or discretion of the court* "Those strong and deep impressions which close the mind against the testimony which may be offered in opposition to them, which will combat that testimony and resist its force, do constitute a suf Hcient objection " to a juror.' " Sanf ord's impressions [based upon rumor or newspaper statements] were not such as would refuse to 1 Jones V. Fuller, 19 S. C. 06 (1882); Commonwealth V. Sturtivant, 117 Mass. 133 (1876); Hardy v. Merrill, 56 N. H. 234 (1875); 1 Whart. Ev. §§ 511, 450. ''State V. Baldwin, 36 Kan. 10 (1886), cases, Johnston, J. « Reynolds v. United States, 98 U. S. li)5-56 (1878), cases; 19 Blatch. 255; 47 Conn. 530-31; 49 iii. 376; 6 Col. 456. < Reynolds v. United States, 98 U. S. 156 (1878), Waite, C. J. Approved, Spies u Illinois, 123 id. 179 (1887). yield to the testimony that might be offered, nor were they such as to close his mind to a fair consideration of the testimony." i Prejudice against crime will not of itself disqualify a man as a juror.^ A statute of Illinois, in force since July 1, 1874, provides that it shall not be a cause of challenge that a juror has read in the newspapers an account of the commission of the crime charged, nor shall the tact that he has formed an opinion or impression, based upon rumor or newspaper statements (about the truth of which he has expressed no opinion), disqualify him, if he shall upon oath state that he believes he can fairly and impartially render a verdict in accordance with the law and the evidence, and the court shall be satisfied of the truth of such statement. '* It is not a test question whether the juror will have the opinion which he has formed from newspapers changed by the evidence, but whether his verdict will be based upon the account which may here [before the trial court] be given by witnesses under oath." A similar statute was enacted in New York in 1878, in Michigan in 1873, in Ohio in 1880, in Nebraska in 1885; all which have been sustained by express decision or treated as valid by the highest courts of those States. The rule of the statute of Illinois, as construed, is not materially different from that adopted by the courts in many of the States without legislative action; and the same is not repugnant to the guaranty for an impartial jury in criminal trials.^ See further Challenge, 4; Impartial: Prejudice, 1; Religion. 3. The view of the facts in a case entertained by the judge who presides at the trial. It is no longer an open question that a judge of a court of the United States, in submitting a case to the jui-y, ma.y, in his discretion, express his opinion upon the facts; and that when no rule of law is incorrectly stated, and all matters of fact are ultimately submitted to the determination of the jmy, such expressions of opinion are not reviewable on writ of error.* See further Charge, 2 (2, c). The statement of the reasons advanced by a judge or court in support of a decision rendered. See Decision; Dictum, 2; Judgment. Concurring opinion. An opinion that agrees with the conclusions in another opinion rendered in the same case. Dissenting opinion. An opinion that does not agree with the views expressed by the majority of a court in its opinion. Whence dissentients. (Rare.) Judicial opinion. A ruling upon a question directly involved in an argument or cause. Extra-judicial opinion. A ruling upon a point either only incidentally raised 1 Spies et al. v. People, 122 Hi. 262 (1887). 2 Spies et al. v. People, 128111. 263-64,(1887). "The Anarchists' Case,

— Spies v. Illinois, 123 U. S. or else without any bearing whatever; a dictum, q. v. ^ Whenever, in any civil suit or proceeding in a circuit court held by a circuit justice and a circuit judge or a district judge, there occurs any " difference of opinion " between the judges as to any matter or thing to be decided, ruled, or ordered by the court, the opinion of the pr&iding justice or judge shall prevail, and be considered the opinion of the court for the time being. ^ In criminal proceedings the point shall, " upon the request of either party or their counsel, be stated under the direction of the judges, and certified, under seal of the court, to the Supreme Court at their next session." But the cause may proceed " if in the' opinion of the court, further proceedings can be had without prejudice to the merits." Where the judges disagree as to the imprisonment or punishment, none shall be permitted.^ v Where, on a certificate of division from a circuit court, the Supreme Court is equally divided in opinion, the case will be remitted to the court below to enable it to take such action as it may be advised.^ The Supreme Court will not take jurisdiction of the case, if the certificate, instead of being confined to the single points of law, presents either questions of fact or the whole case for adjudication.* A certificate of division can be resorted to only when " a question " has occurred in which the judges differ, and where " the point" of disagreement may be distinctly stated. It cannot be resorted to to present a question of fact, a question of fact and law, or a difference of opinion on the general case.* Each question certified must be upon a distinct point of law, clearly stated, and not upon the whole case, nor v^hether upon the evidence judgment should be for one party or for the other.* 4. A statement, often in writing, made by an attorney, of what he supposes the law to be with r^erence to a matter or case. See Attoknet, At law.