Lopez vs.

Heesen
365 P.2d 448 (1961)
Relevance

FACTS:
Appellee Heesen, an air Force officer, purchased a J.C. Higgins Model 51 30.06 rifle
from the store of appellee Sears. The rifle has a bolt action known as a Mausser type action
with a Class 1 safety mechanism. At the time of the purchase, Heesen was given an
instruction pamphlet which he read, explaining the composition of the rifle and gave operating
instructions, including the method to be pursued to make the gun safe.
Immediately after the purchase, Heesen left for a deer hunting trip in an area known as
Ute Park. He placed a live cartridge in the chamber and placed the gun on safety position. He
traveled a good deal during the hours before the shooting and on one of two occasions, he
discovered the gun off safety position. This occurred when he had come down a long hill
covered with rocks and boulders. Heesen was not aware that the rifle moved from safe to fire
position at least twice before the shooting. Ten minutes before the accident began, he left the
knoll and he was carrying the gun on his shoulder.
He later heard a rustle and saw a deer go between some trees. When he followed the
deer, his left foot went down hard on the ground on one side of a log and his right foot slipped on
the grass. This brought the rifle down and the rifle discharged, the bullet hitting appellant Lopez,
who was nearby.
Lopez brought suit against Heesen for allegedly unlawfully assaulting him, thereby
inflicting dangerous and painful wounds. He also included as party-defendant, the designer,
manufacturer and seller of the rifle, Sears, for allegedly negligently designing and manufacturing
the rifle bought by Heesen.
Defendants presented expert testimony on the general reputation of other firearms
companies who use the same modified leaf safety device as the Higgins Model 51. Lopez
objected to this evidence on the ground that it was wholly immaterial and irrelevant to any issue
in the case. He likewise objected on the introduction of testimony on the poundage pressure
required to move the safety levers from safe to fire position on the ground of irrelevance and
immateriality. Lastly, he objected to the introduction of opinion evidence regarding the design
of the safety mechanism, on the ground that it was a subject which is within the province of the
jury to determine.

ISSUE(S):
(1) Whether or not expert testimony on the general reputation of other firearms companies
using the same safety device is material and relevant.
(2) Whether or not testimony on the poundage pressure required is relevant and material.
(3) Whether or not the design of the safety mechanism was a proper subject of expert
testimony.

RULING:
(1) The expert testimony is admissible. The allegations on the ultimate facts in issue involve
whether the Higgins Model 51 rifle was in a dangerous and defective condition due to its
negligent manufacture, in that the safety mechanism moved re4adily from safe to fire
position. This is an issue, the proper understanding of which, requires knowledge or
experience and cannot be determined independently merely from deductions made and
inferences drawn on the basis of ordinary knowledge. Moreover, the conduct of others is
proper evidence for a jury to consider, in determining whether the tendency of the thing is
dangerous, defective, or the reverse. Considering these principles, the Court held that the
testimony as to the reputation of other firearms companies using the same safety device is
material and relevant to the issue of whether the safety device on the Higgins Model 51
was unsafe or safe, and that the trial court did not abuse its discretion in admitting this
testimony.

(2) The testimony was introduced under Lopezs contention that the Higgins model was
unsafe and thus, the issue arose as to the poundage pressure required to move the safety
lever from safe to fire. It was then proper for Sears to show the amount of pressure
required to move the safety lever as this was relevant to the issue posed.

(3) Expert testimony is admissible because the expert testimony was upon the ultimate issue
of whether or not the safety device was dangerous and defective. It was the proper
subject of expert testimony. It does not usurp the functions of the jury as the latter may
still reject these opinions. Said opinion evidence is not binding on the jury.




























State vs Ball
339 S.w2d 783 (1960)
Relevance

FACTS:
Ball appeals from an order of the trial court, convicting him of robbery.
At about 2:30 in the afternoon, two colored men, one of them tall and the other short,
entered the Krekeler Jewelry Store. As the taller man looked at jewelry and made his purchase,
the shorter man looked in the cases and moved about in the store. Later in the same day, at
around 5:30 p.m., as John Krekeler was placing the rings and watches in the safe preparing for
the closing of the store, the two men who had been in the store at 2:30, entered the store. They
were immediately recognized by Krekeler, especially the taller mans narrow-brimmed tall hat,
brown jacket, gray short and particularly a scar on his face.
The shorter man walked behind the counter and as Krekeler tried to intercept him, the
man hit Krekeler on the face using a 0.38 long barreled pistol. With the gun on his back, the two
men directed Krekeler to go to the watch repair department, then to the restroom, where he was
positioned, facing the wall. Thereafter, he could hear jewelry being dumped in a bag, and the
jingle of the car register. After hearing the door slam, Krekeler call the police. He reported
that the two men took $4,455.21 worth of watched and rings, and $140 in cash.
Three weeks later, Ball was arrested by Officers Powell and Ballard while walking in the
street. Ball shoved Officer Powell over and ran down the avenue. The officers ran after him and
he was only pacified when the Officers fired a bullet which fell in his back. Ball claims that this
evidence of flight was not material or relevant, since it was too remote from the date of the
robbery (3 weeks later), to indicate a consciousness of guilt. Ball likewise objected to the
admissibility of the following articles found in his person during the arrest on grounds of
immateriality and irrelevance: a brown felt hat, a brownish windbreaker type jacket, trousers,
gray shirt and shoes, and $258.02 in currency and two pennies.

ISSUES(S)
(1) Whether or not the evidence of flight is inadmissible for reason of remoteness to the time
of the commission of the crime.
(2) Whether or not the articles found in the person of the accused at the time of his arrest are
inadmissible for being irrelevant and immaterial.

RULING:
(1) Unexplained flight and resisting arrest even thirty days after the supposed commission of
the crime is a relevant circumstance. The remoteness of the flight goes to the weight of
the evidence rather than to its admissibility.

(2) In identifying Ball, Krekeler was impressed with and remembered the brown ensemble,
particularly the tall brown hat. These items were of course relevant and admissible in
evidence and there is no objection to them.
However, the money is inadmissible. The proof of the money here was evidently
on the theory that Ball did not have or was not likely to have such a sum of money on his
person prior to the commission of the offense. However, Krekeler was not able to
identify the money or any of the items on Balls person as having come from the jewelry
store so that in fact, they were not admissible in evidence. There was no proof as to the
denomination of the money in the cash register, it was simply a total of $140. Here,
nineteen days had elapsed, there was no proof that Ball had suddenly come into
possession of the $258.02 and in all these circumstances the mere possession of a
quantity of money is in itself no indication that the possessor was the taker of the money
charged as taken, because in general all money of the same denomination and material is
alike, and the hypothesis that the money found is the same as the money taken is too
forced and extraordinary to be receivable.