
    The People of the State of New York, Respondent, v. Lawrence Rensing, Appellant, and Hugo Krombholz, Defendant.
    Argued April 1, 1964;
    decided May 7, 1964.
    
      James F. Ryan and Francis A. McGrath for appellant.
    I. The court erred in denying motion to set aside verdict and grant a new trial on newly discovered evidence. (People v. Salemi, 309 N. Y. 208; People v. Foller, 229 App. Div. 789.) II. The physical facts in this case contradicted the confession to the extent that the confession is incredible and insufficient to sustain the verdict. (United States ex rel. Rogers v. Cummings, 154 P. Supp. 663; People v. Miller, 247 App. Div. 489; People v. Clarke, 269 App. Div. 921; Macon v. Commonwealth of Va., 187 Va. 363.) III. Defendant was deprived of a fair and impartial trial. (People v. Zackowitz, 254 N. Y. 192; People v. Russell, 266 N. Y. 147.)
    
      
      Edward S. Silver, District Attorney (William I. Siegel of counsel), for respondent.
    I. Appellant’s guilt of murder in the first degree was established beyond a reasonable doubt. (People v. Meyer, 162 N. Y. 357; People v. White, 176 N. Y. 331; People v. Randazzio, 194 N. Y. 147; People v. Doran, 246 N. Y. 409; People v. Weiner, 248 N. Y. 118; People v. Pignataro, 263 N. Y. 229; People v. Elmore, 277 N. Y. 397; People v. Peller, 291 N. Y. 438; People v. Vargas, 7 N Y 2d 555; Lisenba v. California, 314 U. S. 219; Ashcraft v. Tennessee, 322 U. S. 143; Watts v. Indiana, 338 U. S. 49; Stein v. New York, 346 U. S. 156; Thomas v. Arizona, 356 U. S. 390; Rogers v. Richmond, 365 U. S. 534; Gallegos v. Colorado, 370 U. S. 49; People v. Conroy, 97 N. Y. 62.) II. The denial of the motion to set aside the verdict and grant a new trial was correct in law. (District of Columbia v. Armes, 107 U. S. 519; People v. Washor, 196 N. Y. 104; Ellarson v. Ellarson, 198 App. Div. 103; People v. Van Allen, 275 App. Div. 181; Aguilar v. State of New York, 279 App. Div. 103; People v. Salemi, 309 N. Y. 208, 350 U. S. 950.) III. Appellant was accorded a fair trial. (People v. Sorge, 301 N. Y. 198.)
   Fuld, J.

Charged with the shooting and killing of Arthur Holst on September 20, 1962, the appellant was convicted of murder in the first degree and sentenced to death. His codefendant, Hugo Krombholz, was also adjudged guilty but was declared insane prior to the imposition of sentence.

The body of the 17-year-old Holst was found, on the morning after he was killed, beside a dumbwaiter in the basement of the ice cream parlor in which he worked. He had been shot twice in the chest with a shotgun. The appellant, manager of the store, admitted committing the murder and implicated his codefendant Krombholz. The reason given by the appellant for his act was that his employer, who was also Holst’s, had instructed him to kill the boy because he was stealing money from the till.

Although the story given by the appellant in his statements may tax credulity, there can be no question that on the record before us his guilt was established beyond a reasonable doubt. The proof came not only from his confession and his possession of the murder weapon but also from the testimony given by Krombholz. If that were all there was to the case, we would have no alternative but to affirm, since no errors of any consequence were committed upon the trial. However, the facts revealed on the appellant’s motion for a new trial, concerning Krombholz’ long history of mental illness, compel a reversal.

The jury returned its verdict against both defendants on May 6, 1963. When they appeared before the court for sentencing some weeks later, the appellant was sentenced to death and Krombholz was sent to the Kings County Hospital for observation. A month thereafter, following psychiatric examination, Krombholz, found to be suffering from a ‘ ‘ longstanding mental illness ” and to be “ unaware of the situation in which he finds himself,” was certified as “ legally insane ” and committed to Matteawan State Hospital.

On the basis of this development, the appellant moved to set aside the verdict and the judgment and for a new trial, on the ground of newly discovered evidence, under section 465 of the Code of Criminal Procedure. He urged then, as he urges now, that, since Krombholz was the only witness who directly implicated him, his testimony must have had a tremendous impact upon the jurors and that the verdict might well have been different had they known of his long history of mental illness. The trial judge, however, denied the motion on the ground (1) that the finding of insanity made after the trial did not mean that Krombholz was mentally ill when he testified; (2) that he, the judge, concluded from his observations of Krombholz that he ‘‘ understood the obligation of his oath and was competent to testify”; and (3) that, in any event, Krombholz’ testimony could not have materially affected the deliberations of the jury since the appellant’s conviction was a foregone conclusion ”.

The undisputed fact is that Krombholz ’ mental condition went back many years. He had had a head injury and a brain operation in 1947 and had several times been hospitalized for mental illness, his case being diagnosed in 1948 as one of “ Paranoid Schizophrenia ”. The psychiatrists, who found him insane following the trial, stated that they were “ dealing with a longstanding mental illness ”, and the district attorney does not dispute this. Instead, it is his submission that Krombholz’ condition did not render his testimony inadmissible or require it to be rejected as a matter of law.

With this we are inclined to agree. The mere fact that one is insane or mentally ill does not per se disqualify him from testifying. He may give evidence, provided only .that he has sufficient intelligence to understand the nature of an oath and to give a reasonably accurate account of what he has seen and heard vis-a-vis the subject about which he is interrogated. (See Barker v. Washburn, 200 N. Y. 280, 283; Aguilar v. State of New York, 279 App. Div. 103, 104; District of Columbia v. Armes, 107 U. S. 519, 521.) The capacity of a person to be a witness is presumed and, if objection is made that he is incompetent, it is for the judge, in the exercise of his discretion, to determine his mental capacity to testify. (See People v. Washor, 196 N. Y. 104, 109-110; Aguilar v. State of New York, 279 App. Div. 103, 104-105, supra; Ellarson v. Ellarson, 198 App. Div. 103, 106; see, also, 2 Wigmore, Evidence [3d ed., 1940], §§ 478, 487.) “ We know both as a matter of definition and of observation ”, the court declared in the Barker case (200 N. Y. 280, 283, supra), “ that a person who would be judicially declared incompetent and unable to manage his affairs might nevertheless possess sufficient intelligence to be truthful and to describe simple occurrences as they were.”

These decisions do not, however, resolve the question presented. They simply stand for the proposition, in terms of the present case, that, if Krombholz’ mental condition had been put in issue during the trial, the court could have determined on the strength of its observations that he was capable of testifying as a witness. But, in that event, the jurors would have learned, by reason of the examination to which he would have been subjected, that Krombholz had had a long history of mental illness and they would have been in a position to assess and evaluate the testimony given by him and not accept it, as undoubtedly they did, as the statement of a “ normal ’ ’ individual. Indeed, the court remarked during the argument of the new trial application that Krombholz had acted normally throughout the trial and that his demeanor in the courtroom and on the witness stand had furnished no basis for inferring that there was something mentally wrong with him ”.

On this appeal, our inquiry must be, what would have been the reactions of the jurors had they been made aware that there was “ something mentally wrong” with Krombholz and had they known that he had ‘ ‘ visual and auditory hallucinations with marked memory defect ”, that he had been diagnosed “ as a case of Paranoid Schizophrenia ’ ’ and that he had been discharged from a sanitarium in 1950 “ against medical advice ”? We find it impossible to answer this question. On the one hand, the jury might have been reluctant to attach credence or weight to Krombholz’ story and base its verdict of guilt solely on the appellant’s confession — which he repudiated on the stand— and the other bits of evidence adduced by the prosecution. On the other hand, the jurors might have been persuaded that the appellant was guilty even without Krombholz’ testimony or they might have concluded that, mentally ill though he was, he was capable of reporting his talks with the appellant and describing the events which he observed before and after the killing. However, in a case such as this, when the punishment is death, we would not have our verdict to affirm rest on possibility or surmise. There is no need to remit the case for a hearing on the motion. On the record as it stands, the appellant is entitled, in the interests of justice, to a new trial (Code Grim. Pro., § 528).

Nor does our decision in People v. Salemi (309 N. Y. 208, supra) require a different conclusion. The court there affirmed a first degree murder conviction, although it appeared on a motion for a new trial that the witness who had identified the defendant was declared insane immediately after the trial. However, as a reading of the court’s opinion makes clear, that case differs from the one before us in that the matter relied upon by Salemi for a new trial “ was not new matter at all, but had been before the court and jury on the main trial ” (309 N. Y., at p. 212). More specifically, it had been brought home to the jurors that the witness in question ‘ ‘ had blown ‘ his top ’ ”, had attempted to commit suicide by butting his head against the iron bars of the cell in which he was detained and had previously been confined in a mental hospital. The jurors were, therefore, aware that the witness may not have been “normal” and, in consequence, their assessment of his testimony was not made, as it was in the present case, without knowledge that he was, and long had been, mentally ill.

The judgment of conviction should be reversed and a new trial ordered.

Burke, J.

(dissenting). We would affirm the judgment of conviction and the order denying a new trial. This is an instance in which a codefendant, who was later adjudged insane, took the stand in an attempt to clear himself and, in so doing, gave testimony against the defendant.

As is stated in the majority opinion, there is a presumption that a person has the capacity to testify and if objection is made on this ground that is for the Judge to determine in the exercise of discretion. (See People v. Washor, 196 N. Y. 104, 109-110; Aguilar v. State of New York, 279 App. Div. 103, 104-105; Ellarson v. Ellarson, 198 App. Div. 103, 106; see, also, 2 Wigmore, Evidence [3d ed., 1940], §§ 478, 487). In the case before us, there was evidence before the jury that Krombholz had sustained a brain injury in 1947, had been hospitalized and had been in three private sanitariums. The court refused to allow Krombholz’ mother to testify concerning an alleged brain injury but stated that, if medical testimony was forthcoming, it would be admitted. At the hearing upon the motion for a new trial, the Trial Judge noted that the issue of Krombholz’ capacity had come to his attention at trial and that he had offered to have him examined ‘ ‘ if there is any question about his mentality”. This offer was refused by counsel for Krombholz for the reason that “ during the trial he comported himself at the counsel table as a normal individual ”. The Judge, who had observed Krombholz throughout the course of the trial, recalled that he considered him “to be normal and as far as I could see, sane ”.

There is no real distinction between a competency examination made during trial and a sanity-competency motion after trial, in either case the issue is for the court to determine. The court was under no obligation to secure expert testimony at the trial on the issue of insanity absent expert evidence raising the issue of insanity. Under such circumstances the court may pass on the witness’ capacity to testify without expert evidence. Certainly the defendant’s attorney could have introduced evidence of insanity by way of impeachment, if it would have benefited his client, but his failure to do so in no way invalidates the court’s procedure in determining competency.

At any rate, Krombholz’ testimony was merely cumulative. In view of the defendant’s confessions, his possession of the murder gun and evidence of the consciousness of his guilt, when weighed against the total absence in the record of any scintilla of evidence pointing to innocence, it is impossible to conclude that the jury would have reached any different conclusion even if Krombholz had been prohibited from testifying entirely.

We think that the present case falls squarely within our holding in People v. Salemi (309 N. Y. 208). It is true, as the majority opinion states, that in that case the issue of the witness’ sanity was brought home to the jury in greater detail than we find in the present case; but this was accomplished by cross-examination, an avenue which was open to defendant in this case. Here there can be no doubt that the issue of competency was before the court and the record shows that the Judge’s obligation in this regard was well satisfied. While it may or may not have been advantageous for defendant’s attorney to develop the issue of insanity on cross-examination, the fact that he chose not to does not render this case dissimilar from Salemi. It is not the work of this court to sit in judgment of trial tactics. Salemi was actually a much stronger case for reversal since there the witness was the sole person to identify the defendant as the killer and, therefore, his testimony could not be considered merely cumulative.

Chief Judge Desmond and Judges Van Voorhis and Bergan concur with Judge Fuld; Judge Burke dissents in an opinion in which Judges Dye and Scileppi concur.

Judgment of conviction reversed, etc. 
      
      . Evidence of a witness’ insanity may constitute newly discovered evidence within the sense of section 465 of the code. (See, e.g., People v. Brown, 13 N Y 2d 201, 205-206; People v. Salemi, 309 N. Y. 208; People v. Foiler, 229 App. Div. 789.) It matters not that the witness, later declared insane, was called by a codefendant in connection with his defense rather than by the prosecution; in either instance, the harm to the defendant against whom the witness testified is the same.
     
      
      . However, the chances are that he would not have testified because of the fact that he was both an accused and a witness: if during the trial he had been sent to Kings County Hospital and found to be insane, he would in all likelihood have been committed to Matteawan and, in consequence, would not have appeared as a witness.
     