
    The People of the State of New York, Plaintiff in error, v. David Augsbury, Defendant in error.
    To entitle a party, as matter of legal right, to put hypothetical questions to an expert witness, the hypothesis must be based upon facts admitted; or established by evidence, or which, if controverted, the jury might legitimately find from the evidence.
    While, upon cross-examination of an expert, purely imaginary or abstract questions, assuming facts or theories for which there is no foundation in the evidence, may he put for the purpose of testing the knowledge and competency of the witness to give an opinion called out on the direct examination, the allowance of such questions rests in the discretion of the court, and where this discretion is fairly exercised it is not error to exclude them.
    (Argued November 26, 1884;
    decided December 16, 1884.)
    Error to the General Term of the Supreme Court, in the fourth judicial department, to review order made January 25, 1883, which reversed a judgment of the Court of Sessions of the county of Jefferson, entered upon a verdict convicting the defendant in error of the crime of assault with intent to kill.
    The facts, so far as material to the questions discussed, are stated in the opinion.
    
      E. C. Emerson, district attorney, for plaintiff in error.
    The defense having rested, they had no right to ask hypothetical questions as evidence in chief. Such questions could only be asked for the purpose of testing the skill and accuracy of the expert. (Williams v. Sargent, 46 N. Y. 481; Neil v. Thorn, 88 id. 270; Lester v. Crowley, 15 N. Y. Weekly Dig. 265; Agate v. Morrison, 85 N. Y. 673.) Counsel, in asking hypothetical questions, may assume any facts fairly within the range of the evidence and which the evidence fairly tends to justify. (Tiles v. N. Y. C. R. R. Co., 49 N. Y. 42; Hartnett v. Garvey, 66 id. 641; Cowley v. People, 83 id. 465; Stearns v. Field, 90 id. 640.) But they are not at liberty to assume facts which there is no evidence to support, except when such questions are asked on cross-examination of an expert for the purpose of testing his skill and accuracy, in which case facts outside the evidence and pertinent to the inquiry may be assumed in the discretion of the trial court. (Dilleber v. Home L. Ins. Co., 87 N. Y. 79.) The extent to which a cross-examination should be allowed to proceed, when the object is to test the qualifications of the witness, rests in the sound discretion of the court. (Terry v. McNeil, 58 Barb. 241; La Bean v. People, 34 N. Y. 223; Hay v. Douglass, 2 Sweeney, 49; King v. N. Y. C. R. R. Co., 72 N. Y. 607; McGuire v. People, 48 How. Pr. 517; 
      Lefler v. Field, 52 N. Y. 621; White v. McLean, 47 How. Pr. 193; Lehinaier v. Griswold, 8 J. & S. 542; Gt. W. T. Co. v. Loomis, 32 N. Y. 127; People v. Oyer & Terminer, 83 id. 438; People v. Casey, 72 id. 394; Plato v. Kelly, 16 Abb. Pr. 188; Goodsell v. Harrington, 19 Alb. L. J. 420; Tooley v. Bacon, 70 N. Y. 34.)
    
      J. Mullin for defendant in error.
    The hypothetical question put to Dr. Trowbridge should have been allowed. (Reynolds v. Robinson, 64 N. Y. 595; Cowley v. People, 83 id. 464; Dilleber v. Home L. Ins. Co., 87 id. 79; Butts v. Village of Lowville, 12 N. Y. Weekly Dig. 144.)
   Rapallo, J.

The indictment in this case was found in June, 1881. The review of the judgment is, therefore, governed by the laws in force before the Code of Criminal Procedure took effect. (Willett v. People, 92 N. Y. 29.)

The defendant was convicted, in November, 1881, in the Court of Sessions of Jefferson county, of shooting Samuel Zoller, with intent to .kill him. The judgment of the Court of Sessions was reversed, and a new trial granted, by the Supreme Court, and the people now bring their writ of error to review that judgment of reversal.

The ground upon which the Supreme Court reversed the conviction was that the Court of Sessions erred in excluding a question put by the prisoner’s counsel to one of the witnesses for the prosecution, on his cross-examination. The defense interposed by the prisoner was insanity. After he had produced witnesses to maintain that defense and had closed his testimony, the prosecution called in rebuttal Doctor Trowbridge, a physician who had made a personal examination of the prisoner after his arrest, and he testified to the result of his examination at that time, and also gave his opinion as to symptoms exhibited by the prisoner as described by two witnesses for the defense, and stated that those symptoms did not indicate insanity.

On cross-examination, the prisoner’s counsel asked Doctor Trowbridge several hypothetical questions, based upon facts proved, or claimed to have been proved, on the part of the prisoner, and also some theoretical questions. These questions were not objected to as out of order at that stage of the trial, and were allowed and answered. After this line of examination had been pursued for a considerable time, and the witness had testified that the commission of a great crime, without any apparent motive, was some evidence of insanity, the prisoner’s counsel asked the witness the following question:

Q. “ Supposing a man, on a bright day, in the morning, in plain sight of a frequently traveled road, goes into a field where three of his neighbors are at work, with whom he has never had any trouble, never has threatened any personal violence against them in any way ; that he passes one of those parties, who says good morning Uncle Dave,’ and he bows in return. He passes on to another of the neighbors, who is working with a team in the field; that he says to him, Sam I see you are at it again.’ Sam replies in substance: ‘I have got the farm and got to get in my crops; ’ before he finishes that sentence the prisoner shoots him through the chest.” The question then goes on to detail the shooting of the others of the three neighbors, and a second shooting of Sam,” who is the person named in the indictment, and also a second shooting of one of the others, and concludes by asking the witness whether the case supposed would indicate insanity.

The case supposed in the question was so much at variance with the facts appearing in evidence upon the trial, that it would be idle to contend that the question would have been a proper one to have been put by the defense on the direct' examination of one of its own witnesses. Both by its assumptions and its suppressions, the question suggested a case entirely dissimilar to the one on trial, and was a mere abstract inquiry. It was designed to depict a murderous assault, without any motive or provocation, upon three neighbors of the assailant, with whom he had never had any trouble, but was on amicable terms, exchanging ordinary morning salutations, and who were peaceably at work in their field; whereas the facts in evidence were that these three neighbors,” with whom the prisoner had never had any trouble, were Samuel Zoller and his two sons, who were claiming the right, under a lease from John A. Augsbury, to work the farm on which the prisoner had long lived, and which had belonged to him until he had been forced, by pecuniary embarrassments, to convey it to J. A. Augsbury. That at the time of the assault in question, John A. Augsbury was endeavoring to obtain possession of the farm, and had instituted summary proceedings for that purpose, the hearing of which had been adjourned to May 26, 1881, the day following the assault, which was committed on May 25, 1881.

The prisoner had declared his determination that these three “ neighbors,” the Zollers, should not have possession under J. A. Augsbury’s lease, had warned them off, and had threatened to sue them in trespass every time they came on the farm, and had actually brought an action of trespass against them for an entry on the 11th of May, 1881, and another like action for a second entry on the 12th of May, 1881, all of which actions were pending at the time of the assault. There is much other evidence in the case showing a bitter feeling on the part of the prisoner toward these three “ neighbors,” and none which would sustain the theory that they were on the amicable terms implied in the question, or that their presence on the farm occupied by the defendant was regarded by him as any thing but hostile.

The question put to the witness was objected to by the prosecution, two grounds of objection being specified; one, that there was no foundation for the question in the evidence, and the other, that it was reopening the defense.

If either of these objections was sound, it was a sufficient answer to the claim of the prisoner, as matter of legal right, to put the question, and even though the court might, in its discretion, have allowed it, the refusal to do so was not error.

The objection that there was no foundation for the question in the evidence was, in our judgment, sufficient to authorize the court to exclude it. Hypothetical questions are allowed to be put to experts ; but the hypothesis upon which they are examined must be based upon facts admitted or established by the evidence, or which, if controverted, the jury might legitimately find on weighing the evidence. Purely imaginary or abstract questions, assuming facts or theories for which there is no foundation in the evidence, are not admissible as matter of right. On cross-exainination, such abstract or theoretical questions, not founded upon the facts of the case on trial, may be put, for the purpose of testing the knowledge and information of the witness as to the subject upon which he has been examined, and his competency to give the opinion which he may have pronounced on his direct examination. But the allowance of such questions, like other collateral inquiries touching only the credibility of the witness, rests in the discretion of the court, and, when the discretion is fairly exercised, it is not error to exclude them. (Dilleber v. Home Life Ins. Co., 87 N. Y. 79-88; La Beau v. People, 34 id. 223.) Were the rule otherwise, there would be no limit to the cross-examination of a witness called as an expert. It could be protracted as long as the fertility of the imagination of the examining counsel might enable him to suppose cases, and the mental and physical powers of endurance of the witness would permit him to frame answers.

In our judgment the exclusion of the question put to Dr. Trowbridge was a fair exercise of the discretion of the court and therefore not error, and did not justify the Supreme Court in reversing the conviction. We have examined the other exceptions contained in the case, and find nothing in them warranting the reversal.

The order of the Supreme Court should, therefore, be reversed and the judgment of the Court of Sessions of Jefferson county affirmed.

All concur, except Danforth, J., not voting.

Order reversed and judgment affirmed.  