Opinion

In Evidence. An inference or conclusion stated by a witness, as distinguished from a statement of matters of fact. In Practice. The statement o£ reasons delivered by a judge or court for giving the judgment which is pronounced upon a case. The judgment itself is sometimes called an opinion, and sometimes the opinion is spoken of as the judgment of the court. A declaration, usually in writing, made by a counsel to his client of what the law is, according to his judgment, on a statement of facts submitted to him. An opinion is in both the above cases a ■decision of what principles of law are to be applied in the particular case, with the difference that judicial opinions pronounced by the court are law and of authority, while the opinions of counsel, however eminent, are merely advice to his client or argument to the court. OPORTET (Lat.) It behooves; it is needful or necessary. Oportebit (the future form) had, in the civil law, the sense of oportet. Dig. 50. 16. 8. And as to the meaning of oportere, see Dig. 50. 16. OPORTET QUOD CERTA RES DEDUcatur in donationem. It is necessary that a certain thing be brought into the gift, or made the subject of the conveyance. Bracton, fol. 15b. OPORTET QUOD CERTA RES DEDUcatur in judicium. A thing, to be brought to judgment, must be certain or definite. Jenk. Cent. Cas. 84; Bracton, fol. 15b. OPORTET QUOD CERTA SIT RES quae venditur. A thing, to be sold, must be certain or definite.

In Evidence. An inference or conclusion drawn by a witness as distinguished from facts known to him as facts. It Is the province of the jury to draw Inferences and conclusions; and if witnesses were in general allowed to testify what they believe as well as what they know, the verdict would sometimes prove not the decision of the jury, but that of the witnesses. Hence the rule that, in general, the witness cannot be asked his opinion upon a particular question; Patterson v. Colebrook, 29 N. H. 94; Dawson v. Callaway, 18 Ga. 573; Morehouse v. Mathews, 2 N. Y. 514; De Witt v. Barly, 17 N. Y. 340. Where all the facts of a transaction are clearly stated bv a witness, his inference therefrom is inadmissible; Gentry v. Singleton, 128 Fed. 679, 63 C. C. A. 231. While it is incompetent for a witness to state his opinion upon a question of law, where the intent with which an act done by him is drawn in question he may testify as to such intent; 12 Reptr. 664. Some confusion in the application of this rule arises from the delicacy of the line which divides that which is to he regarded as matter of observation from that which is matter of judgment founded upon observation. Thus, it is held that an unprofessional witness may testify to the fact that a person whom he saw was intoxicated, whether he is able to state all the constituent facts which amount to drunkenness or not; People v. Eastwood, 14 N. Y. 562; Stanley v. State, 26 Ala. 26; Mc Killop v. Ry. Co., 53 Minn. 532, 55 N. W. 739; he may also testify as to the apparent condition of a party as to sobriety, shortly before the commission of an offence; People v. Monteith, 73 Cal. 7, whether a person with whom he is familiarly associated is in good or bad health and hearing, is lame or has the nature^ use of his limbs, and also whether on certain occasions he was unconscious; Chicago City Ry. Co. v. Van Vleck, 143 111. 480, 32 N. E. 202; also whether a certain person has African blood in his veins; Hare v. Board of Education, 113 N. C. 9, 18 S. E. 55. But, on the other hand, insanity or mental incapacity cannot, in general, be proved by the mere assertion of an unprofessional witness; De Witt v. Early, 17 N. Y. 340; Gelirke v. State, 13 Tex. 568; but the opinion of non-expert witnesses may be given as to mental capacity where the facts upon which the opinions are based are disclosed; Johnson v. Culver, 116 Ind. 278, 19 N. E. 129; Keithley v. Stafford, 126 111. 507, 18 N. R. 740; State v. Potts, 100 N. C. 457, 6 S. E. 657; Frizzell v. Reed, 77 Ga. 724; Fishburne v. Ferguson’s Heirs, 84 Va. 87, 4 S. E. 575. So handwriting may be proved by being recognized by a witness who has seen other writings of the party in the usual course of business, or who has seen him write; Steph. Ev. § 51; Titford v. Knott, 2 Johns. Cas. (N. Y.) 211; Snider v. Burks, 84 Ala. 53, 4 South. 225. See Brown v. Hall, 85 Va. 14G, 7 S. E. 182. But, on the other hand, the authorship of an anonymous article in a newspaper cannot be proved by one professing to have a knowledge of the author’s style; Lee v. Bennett, IIow. App. Cas. 187. The mere opinions of witnesses, without the facts on which they are based, are of very little value, especially where the witnesses are constitutionally or by interest biased and not impartial; Pannell v. Tobacco Warehouse Co., 313 Ky. 630, 68 S. W. 662, 82 S. W. 1141; Kerr v. Lunsford, 31 W. Va. 659, 8 S. E. 493, 2 L. R. A. 668. From necessity, an exception to the rule of excluding opinions is made in questions involving matters of science, art, or trade, where skill and knowledge possessed by a witness, peculiar to the subject, give a value to his opinion above that of any inference which the jury could draw from facts which he might state; People v. Bodine, 1 Denio (N. Y.) 281; Reed v. Hobbs, 2 Scam. (111.) 297; Woodman v. Barker, 2 N. H. 480; Alfonso v. U. S., 2 Story 421, Fed. Cas. No. 188. Such a witness is termed an expert; and he may give his opinion in evidence; Whart. Ev. 440. Experts alone can give an opinion based on facts shown by others, assuming them to be true; State v. Potts, 100 N. C. 457, 6 S. E. 657. The following reference to some of the matters in which the opinions of expert witnesses have been held admissible will illustrate this principle. The unwritten or common law of foreign countries may be proved Pet (U. S.) 763, 8 L. Ed. 573; Packard v. Hill, 2 Wend. (N. Y.) 411; Raynham v. Canton, 3 Pick. (Mass.) 293; Frith r. Sprague, 14 Mass. 455; Dennison v. Hyde, 6 Conn. 508; Dougherty v. Snyder, 15 S. & R. (Pa.) 87, 16 Am. Dec. 520; the degree of hazard of property insured against fire; Hobby v. Dana, 17 Barb. (N. Y.) Ill; whether a picture is a good likeness or not; Barnes v. Ingalls, 39 Ala. 193; handwriting; Hopkins v. Megquire, 35 Me. 78; Bowman v. Sanborn, 25 N. H. 87; mechanical operations, the proper way of conducting a particular manufacture, and the effect of a certain method; Price v. Powell, 3 N. Y. 322; negligence of a navigator, and its effect in producing a collision; Cook v. Parham, 24 Ala. 21; sanity; Stuckey v. Bellah, 41 Ala. 700; People v. Lake, 12 N. Y. 358; impotency; 3 Phill. Eccl. 34; value of chattels; Dixon v. Barclay, 22 Ala. 370; Carpenter v. Walt, 11 Cush. (Mass.) 257; Nickley v. Thomas, 22 Barb. (N. Y.) 652; value of land: Dwight v. County Com’rs, 11 Cush. (Mass.) 203; Clark v. Baird, 9 N. Y. 183; value of services; Beekman v. Platner, 15 Barb. (N. Y.) 550; speed of a railway train; Salter v. R. Co., 59 N. Y. 631; benefit to real property by laying out a street adjacent thereto; Shaw v. Charlestown, 2 Gray (Mass.) 107; survey marks identified as being those made by United States surveyors; Brantly v. Swift, 24 Ala. 390; as to the location of surveys; Jackson v. Lambert, 121 Pa. 182, 15 Atl. 502; Ilockmoth v. Dos Grand Champs, 71 Mich. 520, 39 N. W. 737; seaworthiness; 10 Bingh. 57; whether a person appeared sick or well; Higbie v. Ins. Co., 53 N. Y. 603; of the effect of a personal injury; Evansville & T. H. R. Co. v. Crist, 116 Ind. 446, 19 N. E. 310, 2 L. R. A. 450, 9 Am. St. Rep. 865; Reed v. R. Co., 56 Fed. 184; whether fright would produce heart trouble; Illinois C. R. Co. v. Latimer, 128 111. 163, 21 N. E. 7; whether a child would have been born alive if he had received medical assistance in time; Western U. Tel. Co. v. Cooper, 71 Tex. 507, 9 S. W. 598, 1 L. R. A. 728, 10 Am. St. Rep. 772; as to the distance at which it is safe to stop before going upon a crossing; New York, C. & St. L. R. Co. v. R. Co., 116 Ind. 60, 18 N. E. 182. So an engineer may be called to say what, in his opinion, is the cause of a harbor having been blocked up; 3 Dougl. 158. Opinion evidence as to the age of a person, from his appearance, is not admissible; Morse v. State, 6 Conn. 9; but see Walker v. State, 25 Tex. App. 448, 8 S. W. 644; Eisner v. K. & L. of Honor, 98 Mo. 640, 11 S. W. 991; nor is it in cases involving adultery, on the question of guilt or guilty intent; see Cox’s Adm’r v. Whitfield, 18 Ala. 738; nor can an opinion be given as tp the meaning of an 3 S. E. 445; Brendon v. Worley, 3 Misc. 253, 28 N. Y. Supp. 557; nor in a matter requiring no peculiar knowledge or experience; Ft. Pitt Gas Co. v. Contract Co., 123 Fed. 63, 59

1. In the law of evidence, opinion is an inferenco or conclusion drawn by a witness from facts some of which are known to him and others assumed or drawn from facts which, though lending probability to the inference, do not evolve it by a process of absolutely necessary reasoning. See Lipscomb v. State, 75 Miss. 559, 23 South. 210. An inference necessarily involving certain facts may be stated without the facts, the inference being an equivalent to a specification of the facts ; but, when the facts are not necessarily involved in the inference (e. g., when the inference may be sustained upon either of several distinct phases of fact, neither of which it necessarily involves,) then the facts must be stated. Whart. Ev. § 510.
2. A document prepared by an attorney for his client, embodying his understanding of the law as applicable to a state of facts submitted to him for that purpose.
3. The statement by a judge or court of the decision reached in regard to a cause tried or argued before them, expounding the law as applied to the case, and detailing the reasons upon which the judgment is based. See Craig v. Bennett, 158 Ind. 9, 62 N. E. 273; Coffey v. Gamble, 117 Iowa, 545, 91 N. W. 813 ; Houston v. Williams, 13 Cui. 24, 73 Am. Dec. 565; Sinte v. Ramsburg, 43 Md. 333

— Concurring opinion. An opinion, separate from that which embodies the views and decision of the majority of the court, prepared and filed by a judge who agrees in the general result of the decision, and which either reinforces the majority opinion by the expression of the particular judge's own views or reasoning, or (more commonly) voices his disapproval of the grounds of the decision or the arguments on which it was based, though approving the final result.

— Dissenting opinion. A separate opinion in which a particular judge announces his dissent from the conclusion held by a majority of the court, and expounds his own views.
—Per curiam opinion. One concurred in by the entire court, but expressed as being "per curiam" or "by the court," without disclosing the name of any particular judge as being its author.

1. In the law of evidence, opinion is an inference or conclusion drawn by a witness from facts some of which are known to him and others assumed, or drawn from facts which, though lending probability to the inference, do not evolve it bya process of absolutely necessary reasoning. An inference necessarily involving certain facts may be stated without the facts, the inference being an equivalent to a specification of the facts; but, when the facts are not necessarily involved in the inference (¢. g., when the inference may be sustained upon either of several distinct phases of fact, neither of which it necessarily involves,) then the facts must be stated. Whart. Ev. § 510, 2. A document prepared by an attorney for his client, embodying his understanding of the law as applicable to a state of facts subdecision reached in regard to a canse tried or argued before them, expounding the law as applied to the case, and detailing tle reasons upon which the judgment is based. Oportet quod certa res deducatur in donationem. It is necessary that a certain thing be brought into the gift, or mace the subject of the conveyance. Bract. fol. 15d. Oportet quod certa res deducatur in judicium. Jenk. Cent. 84. <A thing certain must be brought to judgment. Oportet quod certa sit res que venditur. It is necessary that there should bea certain thing whichis sold. Tomakea valid sale, there must be certainty as to the thing which is sold. Bract. fol. 616. Oportet quod certs persone, terre, et certi status comprehendantur in declaratione usuum. 9 Coke, 9. It is neces. sary that given persons, lands, and estates should be comprehended in a declaration of uses.

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.