(after stating the facts). Except a motion in arrest of judgment, not pressed in this Court, and in our opinion not warranted by the form of the indictment, which pursues an approved precedent, Arch. Cr. PL 186, these are the only errors pointed out and complained of, as having been committed on the trial of the prisoner, and these only are we required to consider in his application for a new trial. ■
1st Exception. Dr. Arnold was permitted to give an account of the illness of the deceased in the year 1873.
No ground is assigned, upon which the objection to the competency of the evidence rests, but, in the argument here, its •remoteness in time, and tendency to mislead, are urged against its reception. It will be noticed, that the matter had come out in a conversation with the prisoner, in which he described the symptoms of the fatal attack, as similar to those on a former occasion, remarking that she had “just exactly such a spell,” describing it. The witness to whom he said this, saw one of those spells, and Dr. Arnold was also called in and treated her at that time. No exception was taken to this evidence when delivered by the witness, Wicker, but was taken to it when Dr. Arnold testified to the same facts. It was referred to by the prisoner, as •an expressive and clear way of making known to one, who had been present at the former attack, the physical manifestations that attended her death. The evidence was properly received.
2d Ex. The second exception is to the allowing of the expression of his opinion by Dr. Arnold, as to the cause of this attack.
The argument here, is directed against- the competency of the witness, as an expert, not ascertained to be such, to give a professional opinion in the case.
*964In State v. Secrest, 80 N. C., 450, objection was made to the competency of a witness to express an opinion, of whose opportunities, and the use made of them, for acquiring skill and experience in his profession, no proof was shown to have been offered and acted on by the Court, and it was sustained. The nature of the objection did not appear, but it was held that any just grounds could be assigned in this Court, when none had been assigned in the Court below, upon the authority of State v. Parish, Bush., 289.
But in Flynt v. Bodenhamer, 80 N. C., 205, decided at the same term, in answer to a similar objection, the Court used this language:
“The Court must decide whether the witness has had the necessary experience to enable him to testify as an expert. But the value of his opinion, when admissible, must be determined by the jury alone, and it depends upon the opportunities he has had for acquiring skill and knowledge, and the use he has made of those opportunities. If a regular and continuous practice in his profession for thirty years, does not entitle the witness to be regarded as an expert, or experienced physician, it is difficult to conceive what would do so.” Whether a witness, offered as an expert, is such,.is an enquiry to be decided by the Judge, as a fact, and like many other preliminary facts, such as the operation of hope or fear inducing a confession, is conclusively determined by the Judge. State v. Sanders, 84 N. C., 828; State v. Effler, 85 N. C., 585; State v. Burgwyn, 87 N. C., 572.
3rd Ex. We see no ground of exception to the proof, that the year previous to the illness of the deceased, the prisouer procured strychnia, for the alleged purpose of killing crows. It is in confirmation of the physician’s expressed opinion, that its use was indicated in the effect produced upon her physical condition, so closely resembling those developed at her last illness.
4th Ex. Dr. Snipes, being recalled, proceeded to explain in detail, the effects upon the human system, which this poisonous article, taken in larger or smaller quantities, produces, the time *965in which death ensues, and its resistant force against decomposition, and was then asked the question, and allowed to give the answer already recited, over the prisoner’s objection.
In this, also, we find no error. Both question and answer rest upon a hypothetical state of facts, of which there was evidence, should the jury so find the facts so to be. This mode of examination is warranted by the ruling in State v. Bowman, 78 N. C., 509, and the authorities there referred to. The opinion asked, was not a positive opinion, founded by the expert upon his own observation and the testimony of others, which would be -an invasion of the province of the jury, but is wholly contingent upon the facts, as the jury may ascertain them. In this form, and to aid the jury in their deliberations, such scientific information is allowed to be given.-
After a calm review of the case, we find no error in the record, and as the verdict declares that the unnatural crime of wife murder has been perpetrated by the prisoner, though the result is arrived at upon circumstantial evidence, the law must be vindicated, and the prisoner suffer the consequences of violating it.
This will be certified, to the end that the Court may proceed to judgment upon the verdict, and it is so ordered.
No error. Affirmed.