
    The People against Lake.
    It is not competent for a medical witness who has not heard all the testimony tending to show the mental condition of a person, to give an opinion founded on the portion heard by him as to his sanity.
    Even where such a witness has heard all the testimony, his opinion founded thereon, upon the general queston of sanity or insanity, is riot competent evidence. He should merely. give an opinion as to what the facts, proved or claimed to be proved, indicate as to the mental condition of the party. Per Hand, J.
    The opinion of a physician, who has personal knowledge of the conduct and habits of a person, is competent evidence as to the sanity of such person., Per Hand, J.
    On the cross-examination of a medical witness, who has testified that in his opinion the prisoner Was sane, it is competent to inquire whether in Iris opinion specified facts, claimed to he proved, indicate insanity.
    The defendant was tried in September, 1853, before the Dutchess county oyer and terminer, Mr. .Justice Barculo presiding, for murder in killing the woman with whom he cohabited as his wife. The defence relied upon was that the prisoner was insane at the time of the killing. On the trial it was proved that in the middle of the day, on the 7th of June, 1853, at Ms house in Lagrange, Dutchess county, the defendant with an ax killed the deceased, and that on the same occasion he killed his two infant children. He then, without making any attempt to flee, destroyed most of the furniture in the house, broke the windows and went to an upper room from which he could see the bodies of the deceased lying in front of the house, where he was found soon after by the persons who arrested him, nearly naked, and having a sword which he was flourishing in a menacing manner, calling it the sword of General Washington. Witnesses sworn on behalf of the prosecution, and also those sworn for the defence, described and detailed the conduct and conversation of the prisoner as witnessed by them, respectively, during some weeks prior to the alleged murder, at the time of and immediately after his arrest and at different times subsequently. Many of them testified as to conduct and conversations not seen or spoken of by the others, and where the witnesses testified as to the same occasion, their evidence varied in a greater or less degree. A number of physicians were sworn as witnesses on behalf of the defendant, who testified that they had heard the evidence given, and that they had had more or less opportunities. to converse with and examine the prisoner during his confinement subsequent to the homicide ; that the testimony given as to his conduct and conversations indicated that he was insane when he perpetrated the alleged murder; and that in their opinion he was then insane and continued to be so at the time of the trial.
    In reply to the case made for the defence, several physicians were sworn on behalf of the prosecution. One of them testified that he had seen the prisoner four or five times in jail and in court and had conversed with him ; that he had heard a portion of the evidence given on the trial,, probably one-half of it. Thereupon this witness was asked by the counsel for the people the following questions: From the testimony, was the prisoner, in your opinion, sane or insane at the time he committed the homicide ? To this question the counsel for the defendant objected, on the ground that Ihe witness had not heard all the testimony. The court then inquired of the witness if he had heard enough of the evidence to form an opinion ? To this inquiry the counsel for the defendant objected. The witness answered that he had heard enough of the testimony to believe that the prisoner was not insane when he committed the homicide. The defendant’s counsel excepted to the admission of this answer by the witness. The witness was then permitted to give, and gave it as his opinion, that the prisoner was not insane when he committed the homicide; and the counsel for the defendant excepted. Several other physicians were sworn for the prosecution and, without having heard all the evidence given on the trial relating to the mental condition of the prisoner, were asked and permitted to give their opinions based upon the testimony heard by them, touching the sanity of the prisoner; the counsel for the defendant objected to such testimony, on the specific ground that the witnesses had not heard all the evidence, and excepted to the ruling of the court permitting it to be given. A number of physicians, sworn on the part of the people, and who had heard all the evidence, were allowed without objection or exception on the part of the defendant to state the opinions they had formed therefrom as to the sanity of the prisoner at the time of the alleged murder.
    ■On the cross-examination of several of the physicians called on the part of the people, who testified on the direct examination that in their opinion the prisoner was sane, the counsel for the defendant put the following question : If a man should kill a woman with whom he lives as his wife and their two infant children with an ax in mid-day, and at the same time destroy the furniture in the house and break the windows and make no attempt to conceal the deed, or to escape, but should stay near the remains of those he had killed, would it be any evidence of insanity ? The counsel for the defendant also put to such physicians on their cross-examination many other similar hypothetical questions, based upon what he claimed was proved to have been the conduct of the prisoner at and immediately subsequent to the time of the homicide. The foregoing and all these hypothetical questions were objected to by the counsel for the people and excluded by the court, and the counsel for the defendant excepted-
    
      Some other exceptions were taken on the trial, which it is not important to state in the view of the case taken by this court. The prisoner was convicted of murder and sentenced to be executed. His counsel procured a bill of exceptions to be sealed, and the execution of the sentence was stayed. The case was brought before the supreme court by writ of error, and was heard at a general term in the third district. The supreme court reversed the judgment and ordered a new trial on the grounds, as appeared by the opinion contained in the case, that the court of oyer and terminer erred in permitting the medical witnesses, who had heard but a part of the evidence, to give opinions based upon the portion heard as to the sanity of the prisoner; and that there was also error in excluding the hypothetical questions put to the physicians on their cross-examination. The case came before. this court on a writ of error issued to the supreme court on behalf of the people.
    
      T. C. Campbell, district attorney for the people.
    
      H. Hale, for the defendant in error.
   Hand, J.

Some of the exceptions on the part of the prisoner on the trial of this cause were well taken, and consequently the supreme court was right in reversing the judgment of the oyer and terminer.

The defence complain that they were precluded, on the cross-examination of the medical witnesses who had testified in relation to the sanity of the prisoner, from putting certain hypothetical questions, founded upon a supposed state of facts which, as they contended, were already in evidence. After they had given their opinions on the direct examination, the counsel for the defendant should have been allowed to put inquiries tending to test the skill and capacity of the witnesses and the correctness of their conclusions; and to ask them whether certain facts already sworn to, and many of them by the witnesses for the people, did not furnish evidence of insanity; and the court of oyer and terminer erred in rejecting the evidence. I think they had a right to put hypothetical questions to those medical witnesses, predicable of the facts then proved, or. that might be fairly claimed to have been proved in the cause. And I do not say the court could not have permitted the cross-examination to have gone farther, and put questions upon mere supposition, or in any way calculated to test the correctness of the opinions of the witness, within a reasonable limit in the discretion of the court.

But the more important questions in this case arise upon the objections to the questions put by the prosecution to, and the opinions given by the medical witnesses. They were permitted, not only to give opinions when they had heard only a portion of the testimony in relation to the condition of the mind ’ of the prisoner and without any previous acquaintance with him, but also, under those circumstances, to testify to their belief that he was sane. This was erroneous.

In my opinion a medical witness, who has been present during the whole trial and has heard all" of the evidence, but had no previous knowledge of the prisoner, cannot, if the evidence be objected to, give his opinion as to the state of the prisoner’s mind at the time of the commission of the alleged offence. In such a case, before the questions upon matters of science can arise, the witness must determine in his mind upon the truth of the evidence which he has heard; which is not a matter of science, but of fact for the jury. But he may be asked whether such and such appearances were symptoms of insanity, and whether such a fact, if it exist (and which has been sworn to), is or is not an-indication of insanity. Questions of this nature can be answered without blending mere matters of science with those of fact only upon which the jury are competent and required to pass. Perhaps this rule lias not always been observed, either in this country or in England: but it is believed to be correct and to be founded upon principle as well as authority. (McNaghten's Case, 10 Cl. & Fin., 210; 67 Hansard's Parl. Deb., 728; 1 C. & Kyr., 130; 2 Greenl. Ev., § 373; Rex v. Wright, Russ. & Kyr., 456. And see Cow. & Hill's notes, No. 528; Whart. Cr. L., 48; 1 Phil. Ev., 290; 2 Russ. on Cr., 925; Chitt. Med. Jur., 356; Rosc. Cr. Ev., 180; 9 Mass., 225.)

Upon principle it may be doubted whether, strictly, medical witnesses should ever give an opinion upon the general question of the sanity or insanity of a prisoner; as that is a question for the jury. It is, in a sense, testifying to the very point the jury must decide, the general merits of the cause; especially upon a preliminary inquest to try the fact of insanity. (Jameson v. Drinkald, 12 Moore, 148; Rex v. Wright, supra; Norman v. Wells, 17 Wend., 161; Mayor of N. Y. v. Pentz, 24 id., 668; Fish v. Dodge, 4 Den., 311.) But where a medical man, conversant with the disease of insanity, has had sufficient previous opportunity by his own observation to become acquainted with the personal habits, conduct and appearance of the accused, upon authority I think he may Be asked the general question, and give his opinion as to the sanity or insanity of the prisoner. In such cases, it might be impossible for him to communicate to the jury every fact and circumstance and all the details of conduct, habits and appearance and the other particulars upon which he had formed his conclusions. Of course he may be questioned as to these and as to his experience, skill, &c.; but if he is conversant with the disease and has had sufficient opportunity to ascertain the state of the prisoner’s mind and has formed an opinion, I think that opinion may be evidence for the jury.

The judgment of the supreme court must be affirmed.

All the judges, except Gardiner, Ch. J., who did not hear the argument and took no part in the decision, were in favor of affirming the judgment of the supreme court on the grounds: 1. That the court of oyer and terminer erred in permitting physicians, who did not hear all the evidence relating to the mental condition of the prisoner, to give opinions as to his sanity, founded on the portion heard by them ; and 2. That the court erred in excluding the hypothetical questions put to the medical witnesses, by the defendant’s counsel, on the cross-examination. The court expressed no opinion on the other questions discussed in the foregoing opinion.

Judgment of the supreme court affirmed.  