
    The People of the State of New York, Respondent, v. Purnell Jackson, Appellant.
    Argued December 7, 1961;
    decided January 25, 1962.
    
      
      Nancy Carley, Edward H. Potter, Hyman J. Greenberg, Eugene K. Jones and Robert E. Green for appellant.
    I. Defendant was denied a fair trial on the issue of insanity. (People v. McElvaine, 121 N. Y. 250; People v. Friedt, 280 App. Div. 836; Jones v. Poinciana Realty Corp., 268 App. Div. 877; People v. Kohlmeyer, 284 N. Y. 366; People v. Samuels, 302 N. Y. 163; People v. Draper, 278 App. Div. 298.) II. The unfair comment of the prosecutor denied defendant a fair trial. (People v. Tassiello, 300 N. Y. 425; People v. Levan, 295 N. Y. 26; People v. Fielding, 158 N. Y. 542; People v. Mleczko, 298 N. Y. 153.)
    
      Frank D. O’Connor, District Attorney (Benj. J. Jacobson of counsel), for respondent.
    Defendant’s guilt of the crime charged and that he was mentally responsible to answer legally for its commission was established beyond a reasonable doubt in a trial free of prejudicial error. (People v. Horton, 308 N. Y. 1; People v. Kelly, 302 N. Y. 512; People v. Schmidt, 216 N. Y. 324; People v. Farmer, 194 N. Y. 251; People v. Irwin, 166 Misc. 751; People v. Egnor, 175 N. Y. 419; People v. Taylor, 138 N. Y. 398; People v. Kohlmeyer, 284 N. Y. 366; People v. Samuels, 302 N. Y. 163; People v. Draper, 278 App. Div. 298; People v. Hill, 9 A D 2d 451; People v. Marks, 6 N Y 2d 67; People v. Reade, 1 N Y 2d 459; People v. Sorge, 276 App. Div. 916, 301 N. Y. 198; People v. Hanover, 10 A D 2d 871; People v. Buchalter, 289 N. Y. 181; People v. Mleczko, 298 N. Y. 153; People v. Fielding, 158 N. Y. 542; People v. Carborano, 301 N. Y. 39.)
   Froessel, J.

Defendant stands convicted of murder in the first degree, and has been sentenced to death. He was indicted for the killing of one Cornelius Ogletree in the presence of eyewitnesses on the night of August 14, 1959. The decedent’s body was found in the front seat of an automobile parked on 107th Street, Corona, Queens County, New York, with his trousers removed and hung around his neck and shoulders. The cause of death was multiple fractures of the skull produced by a blunt, heavy instrument. A hatchet with traces of blood on it was found on the sidewalk near the parked car.

The evidence adduced at trial establishes beyond any reasonable doubt that defendant did in fact slay Ogletree, and he has not maintained otherwise — rather, his sole defense was predicated on the theory of insanity. In support of his specification of insanity, defendant called as an expert Dr. Harry A. La Burt, Senior Director of Creedmoor State Hospital for the past 18 years. Dr. La Burt testified that he had seen defendant on three separate occasions prior to the trial, and had completed a formal investigation into his mental state ’ ’. In addition, he had made a physical-neurological examination of defendant, and had examined his prior hospital records.

He testified that defendant had a history of syphilitic infection dating back to 1942, and that there was evidence of the infection still in his brain; “ there are residuals to brain damage as a result of the syphilitic infection ”. His tests indicated noticeable scarring of the uvula resulting from the syphilitic process and brain involvement. An electroencephalogram showed a mild abnormality of the right side of the brain. Defendant’s history also disclosed that he twice suffered head injuries, once when at the age of 17 he fell from a bicycle and was knocked unconscious, and again, 2 months before the killing, when part of a ceiling fell on his head, again rendering him unconscious. Defendant complained of pains and dizziness resulting from the last injury up to the time Dr. La Burt examined him.

Following his testimony as to defendant’s condition, Dr. La Burt was asked whether a hypothetical person having a similar condition, who had on the night of the killing consumed a considerable quantity of liquor—to wit, 4 glasses in each of which there were about 1% shots of liquor, 2 or 3 drinks from a bottle, and an unknown quantity while in a bar—was laboring under such a defect of reasoning as not to know the nature and quality of his act or that it was wrong. Dr. La Burt stated, in answer to this question: “I’d say that would be entirely possible and quite likely in a case such as you describe.”

The witness explained at some length the basis for his answer, and said he thought the ‘1 individual you described is in a serious mental situation, and I can well imagine that if you add a third substance to it [i.e., to the syphilitic condition and the two trauma] in the form of alcohol he’s pretty much out of control ”. He characterized the hypothetical person as “suffering with pathological intoxication ” — a “ recognized characterization ”.

Dr. La Burt continued by stating that a person with this condition is, at the time of the pathological intoxication, ‘ ‘ insane. He’s not in proper contact with the environment ”. The witness also testified that he would ‘1 definitely ’ ’ say that all that he had stated about the hypothetical person would pertain to defendant.

In addition to the expert’s testimony regarding the hypothetical person, defense counsel sought to elicit from the witness his definite opinion as to defendant’s sanity. Toward this end the following question was asked, although the witness was not permitted to answer it: “ Q. And is it your testimony, Doctor, that this defendant did not know the nature and quality of the act that he was doing on-” The District Attorney’s objection to that question was sustained.

Since Dr. La Burt had previously testified that he had personally examined defendant on three separate occasions, had obtained his medical history, and had examined the records of the Kings County Hospital, including the electroencephalograph tracings, and those of the Elmhurst G-eneral Hospital, it was clearly reversible error for the court to refuse to allow him to testify directly as to defendant’s mental condition at the time of the examination (People v. Faber, 199 N. Y. 256, 266; People v. Keough, 276 N. Y. 141, 145) and at the time of the killing (Penal Law, § 1120; People v. Johnson, 284 N. Y. 182, 184; Freeman v. People, 4 Denio 9, 40).

The error was aggravated by the fact that the court itself asked the People’s expert, Dr. Winkler, for his “ opinion as to whether this defendant knew that the acts he performed on the night of August 14, 1959, were wrong”. Thus the People’s expert was permitted to state his own opinion with regard to defendant’s sanity, whereas the defense expert was not allowed to answer such a question. The prejudice resulting from this is best demonstrated by considering the District Attorney’s argument from this fact during the course of his summation : “ Now, I say to you that there is a big difference in the positive finding as to this defendant that Dr. Winkler was talking about and as to the opinion of both doctors as to the hypothetical man placed in this defendant’s position”. (Emphasis supplied.) It is readily apparent that the District Attorney was attempting to impress upon the jury that a positive finding by an expert who has testified directly as to defendant’s mental condition should be given far greater weight than a mere answer to a hypothetical question.

In seeking to rebut the testimony of defendant’s expert, the prosecutor, as he stated he would do in his opening remarks, called Dr. Winkler, a psychiatrist, who was Chief of the Prison Service in Kings County Hospital and in charge of the Eleetroencephalographic Service. Dr. Winkler testified that he had examined defendant in October or November, 1960, two or three months before the commencement of this trial. He expressly stated that at the time of his examination of defendant the ‘ ‘ question of right and wrong was not put upon us to see whether he knew the nature, the difference between right and wrong”. After objections and some colloquy, the doctor continued: “ Well, at that time when we saw him, we were not concerned with the question whether he knew the difference between right and wrong when he committed the act. We were not concerned at that time when we saw him. We had to examine him and to make a diagnosis and to find out whether he was capable of understanding his charged’ (Emphasis supplied.)

The prosecutor had just previously inquired of the doctor whether he had come to a conclusion as to defendant’s ability to understand the nature and quality of his acts. The witness stated: £ £ The conclusion was that the man was capable of understanding his charge. ’ ’ Dr. Winkler subsequently repeated this statement on two more occasions — once in response to another question of the prosecutor, and once in response to the court’s question whether he had found defendant capable of understanding his charge.

Although the introduction of this testimony into the case, over repeated objections by defense counsel, clearly constituted reversible error (Code Grim. Pro., § 662; People v. Draper, 278 App. Div. 298, 305, affd. 303 N. Y. 653), the matter did not end there. In summation the District Attorney stated:

“ Now, I don’t think there is any question about the fact that you know we don’t try an insane man for any crime if we know it. And I don’t want any inference drawn by any of you people that this man is insane because of any statements made by Mr. Greenberg.
“As a matter of fact, the contrary is true. And what Dr. Winkler was talking about when Mr. Greenberg was talking about his testimony was that when Dr. Winkler examined this man in November of, or October whenever it was, he found him to understand or be capable of defending himself. That’s what he said he found this particular man, and that’s what the question was-” (emphasis supplied).

Defendant’s objection and motion for a mistrial at this point were improperly overruled and denied. Thereafter, in his charge, the court compounded the error of receiving this testimony by charging that Dr. Winkler “ examined the defendant on three occasions shortly after the alleged crime and found that he was capable of understanding the nature of the charges and proceed with the defense ” — an issue wholly irrelevant, and its admissibility forbidden by statute. The fact that no exception was taken to this erroneous charge does not preclude us from considering its prejudicial effect in this capital case.

In view of the foregoing serious errors, consisting of the exclusion of evidence and the allowance of inadmissible and highly prejudicial testimony with respect to the major issue in the case — defendant’s alleged insanity, it is unnecessary for us to discuss the clear inconsistency of Dr. Winkler’s testimony and other errors urged upon us by defendant.

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

Dye, J. (dissenting).

In my view the evidentiary ruling pointed to as a basis for reversal was entirely proper when considered in context. Up to the time the ruling was made, the examination of the defendant’s expert medical witness had been for the purpose of eliciting his opinion as to the mental state of a hypothetical man under the evidentiary facts and circumstances shown and which did not rest on the personal knowledge of the witness. Thus, the objection to the framed question was properly sustained.

The defense was not deprived of its proof. In the question that immediately followed, the defendant’s medical witness stated that at the time a person had pathological intoxication “ I would say he is insane ”. What more was needed to raise the issue is difficult to understand.

The hypothetical method of eliciting expert opinion has long been approved. In most instances it is preferable, affording as it does a basis in fact established by the proof. It is only then that a reviewing court may be sure that the medical expert and the jury are dealing with the same factual situation. The trial court ruling was consistent with this form of proof.

As the majority points out, a physician who has conducted an examination of a person whose sanity is at issue may state directly his opinion as to the person’s condition without first stating his premises (People v. Faber, 199 N. Y. 256, 266). Even so, we there made it clear that it is the better practice to require the witness to state the circumstances of his examination and the facts upon which his conclusions are based, before permitting an opinion to be given to the jury (People v. Keough, 276 N. Y. 141 to the same effect). This departure from the usual rules as to the examination of experts was heretofore permitted because the medical expert by examining the subject supplies himself with the necessary premises which are usually matters and facts of such a character that their significance or force might not be perceived by the jury. That exception should not give license to examine a doctor directly where his opinion does not rest entirely on the results of his own personal knowledge, as developed by the examination. Where, as here, a fundamental premise, drinking, is not within the personal knowledge of the witness we feel that the hypothetical method is preferable (2 Wigmore, Evidence [rev. ed], § 678). Furthermore, it was certainly within the discretion of the Trial Judge to require that there first be a statement of the facts upon which the doctor relied.

We agree that evidence relating to a defendant’s ability to understand the charge should not be in the case (Code Crim. Pro., § 662). Even so, it does not follow that its presence is so prejudicial as to require a reversal. Such evidence might be prejudicial where the defense seeks to establish a continuing course of insanity, the inference being that a finding of ability to understand is inconsistent with a finding of insanity. Where, as here, the defense is in the nature of temporary insanity that inference works no harm, since the jury must be said to understand that there is no allegation of any continuing course of mental instability, but only temporary flights. Thus, the inference at best supports only what the testimony already indicates.

To sum up, none of the errors specified are so prejudicial as to require or warrant a reversal. Indeed, the issue of temporary insanity was submitted to the jury upon a proper and adequate charge, a charge which counsel for the defense considered ‘ fair ’5 and to which no exception was taken other than to call the court’s attention to a slight misstatement of fact that Dr. Winkler’s pretrial examination of the defendant had taken place a year and a half after the arrest and not ‘6 shortly ’ ’ after, as stated by the court, which the court promptly instructed the jury was for them to resolve.

The trial was long. The proof of guilt was overwhelming and no effort was made to controvert it. The various deviations occurring in the course of the examination of the medical witnesses on the infrequent and little known aspects of pathological intoxication, as a type of temporary insanity, were of the kind that frequently arise in the course of a long, drawn-out criminal trial and, taken separately or collectively, do not rise to the level of prejudicial error requiring a new trial. The issue of temporary insanity was left to the jury and their answer, implicit in the verdict of guilty, should not be disturbed.

The judgment of conviction should be affirmed..

Judges Fuld, Van Voorhis, Burke and Foster concur with Judge Froessel ; Judge Dye dissents in an opinion in which Chief Judge Desmond concurs.

Judgment of conviction reversed, etc.  