
    The People of the State of New York, Respondent, v. Harris Smiler, Appellant.
    (Submitted December 18, 1890;
    decided January 13, 1891.)
    Hypothetical questions submitted for expert opinion must be based upon proof in the case, and must not go outside of the facts as to which some evidence has been given, and which could be assumed as the possible truth.
    Appeal from judgment of the Court of General Sessions of the Peace in and for the city and county of Hew York, entered June 18, 1890, upon a verdict convicting the defendant of the crime of murder in the first degree.
   The following is an extract from the opinion:

■ “ One ground of the defense asserted was the insanity of the prisoner. After it had been shown that he was subject to fits of epilepsy, and to what were claimed to have been delusions ; that his mother died of paralysis and softening of the brain; that he occasionally talked in a manner which the witnesses deemed irrational; and that his mother had epileptic fits during her life-time, and her death was described in the certificate of the health department as in consequence of the ■disease of pachy meningitis; after this general proof Dr. O’Brien was called by the defense as an expert. After several efforts to frame a suitable question the doctor was permitted to answer that any man whose mother died of pachy meningitis would be predisposed to insanity. Such predisposition having been shown, the attention of the expert was drawn to ■the prisoner’s actual mental condition, and a series of hypothetical questions were framed, to some of which objections by the prosecution were sustained. The ruling of the court in these instances was based upon the doctrine that the hypothesis submitted for an opinion must be based upon the proofs, and must not go outside of the facts as to which some evidence had been given, and which, therefore, could be assumed as the possible truth. If the trial judge at one stage of the case expressed this doctrine somewhat more vigorously, he made no ruling which went beyond it. (People v. McElvaine, 121 N. Y. 250.) The first question assumed that the symptoms of the prisoner’s fits indirectly proved that they were epileptic, and wholly omitted the other facts relied on. The court complained-that the opinion of the expert was being asked 1 piecemeal,’ and the prisoner’s counsel tried again. The second attempt included an injury to the skull, of which it was conceded that there had been no proof. The third attempt was not •objected to, and the expert answered that the facts indicated ■epilepsy, and thati in epilepsy, of course, a person might at •any moment become insane.’ Very naturally the prisoner’s •counsel was not satisfied with this answer, and for the fourth time framed a hypothetical question, but in doing so assumed as a fact proved which had not been sworn to by anyone that ithe fits and fainting spells < indicated disease of the brain.’ The counsel renewed his effort, and after some discussion the fifth question was framed, and the court allowed it to be answered, but the expert replied: I can’t answer you with those facts that you mention.’ Then followed a sixth effort to get an opinion. The question rested mainly upon the facts claimed to indicate the existence of delusions. The expert answered that the facts indicated delusion and a £ symptom of a form of insanity.’ The prisoner’s counsel having obtained his answer, further inquired in several forms whether the prisoner ‘ couldn’t have committed the crime in one of these fits,’ and the questions were excluded. They were wholly immaterial. FTobody had denied that an insane person, whether made insane by epilepsy or any other cause, could commit a homicide. There was no such issue raised; and until some proof was given showing or tending to show insanity existing at the time of the homicide what could or might have happened was of no consequence. What did happen was the issue on trial, and nobody claimed or pretended that an insane epileptic might not kill. Then, for the seventh time, the defense framed a hypothetical question. It covered quite fairly the general facts • relied on, and the court permitted it to be answered. In all this we discover no ground of error. The trial judge was very patient and careful to protect the rights of the prisoner. Explanation and discussion transformed improper questions into proper ones which fairly presented the facts claimed to have been established by the defense, and those questions were permitted to be answered. We need not waste time over the unsuccessful efforts when the final result sought was fully accomplished in obtaining the opinion of the expert.

“Along this line of inquiry a specific question was asked and excluded. It was this: £ Suppose that a man commits a crime, and that when arrested for the crime, from his language, he had forgotten all about the crime if he had committed it % ’ The court asked for the evidence tending to support the hypothesis, and it turned out to be that when arrested he asked what he was arrested for. The inquiry did not indicate forgetfulness of what had occurred, and no rational argument to that purpose could be founded upon it. The prisoner ran away after the shooting: he did not know whether his victim was alive or dead; and so, was ignorant of the crime with Which he was charged. He might very naturally desire to know whether he was arrested for murder or assault with a deadly weapon, and so, whether his wife was living or dead. How utterly without foundation, in fact, the inquiry was became manifest upon the prisoner’s examination. He remembered every detail of the homicide almost exactly as the witnesses had described it, and swore that he did not fire the shots, but that he heard another man’s voice before the firing. Whatever else might be said, it is certain that he did not forget.”

John R. JLevnzelman for appellant.

John R. Fellows, District Attorney, and John W. Goff for respondent.

Finch, J.,

reads for affirmance.

All concur.

Judgment affirmed.  