
    The People of the State of New York, Respondent, v. John M. Schuyler, Appellant.
    Where a party seeks to exclude the testimony of a physician under the provision of the Code of Civil Procedure (§ 834), forbidding a physician from disclosing information he “acquired in attending a patient in a professional capacity and which was necessary to enable him to act in that capacity,’- the burden is upon such party to bring the case within the provision, he must make it appear not only that the information which he seeks to exclude was acquired by the witness in attending the patient in a professional capacity, but also that it was necessary to enable him to act in that capacity.
    Upon the trial of an indictment for murder, where the defense was insanity, the prosecution called as a witness, B., who was a physician of the jail where defendant was confined for six months prior to the trial. B. testified that he was employed bylthe board of supervisors, and as such had medical charge of all prisoners in the jail; that he examined defendant at the request of both parties and “ kept an eye on the case; ” that he saw to the defendant, as he did to others, when he needed it. There was no proof that defendant was at any time sick during the six months, or that the witness was ever called to attend upon or prescribe for him as a physician. A hypothetical question was then put to the witness, from which was excluded all personal knowledge he had of the defendant, but which was based entirely on facts which occurred before defendant came to the jail, and the witness was requested to answer, without any reference to anything, except to the facts stated as to whether the defendant was sane or insane when he committed the act. The witness stated that it was very questionable whether in answering he could, and he was unwilling to say that he could, exclude the knowledge he had obtained while defendant was in jail The question was objected to as incompetent under said provision and the witness allowed to answer. He answered “ sane.” Meld (Rapallo and Andrews, JJ_, dissenting), that the evidence was competent; that ■ even if the witness was influenced by the knowledge he acquired by seeing the defendant in jail, this did render his testimony incompetent.
    On cross-examination the witness stated he thought it was a practical impossibility to eliminate from his own mind the convictions formed as the physician of the prisoner and thus answer the question. On being reminded that he had answered, he stated that he withdrew the answer and did not wish it to be treated as an answer. The district attorney objected, the court held it had hot the power to strike out the answer and refused so to do. Meld (Rapallo and Andrews, JJ., dissenting) that as the witness was not bound to eliminate the knowledge he acquired as jail physician, if he could not, it did not render the answer incompetent; and so it was not error to refuse to strike it out.
    After the statements of the witness as to his knowledge of the prisoner and before the hypothetical question was put, the court stated that the witness could not give any testimony based upon any fact that he learned either from or in regard to defendant at any time when the relation of patient and physician existed. Held, that the erroneous assumption by the court that the mere fact that the witness was the jail physician created the relation of patient and physician between him and defendant, did not render the question incompetent; that an erroneous ruling in defendant’s favor could not render incompetent evidence which, in its nature, was competent.
    As to whether the said provision renders a physician incompetent to testify that his patient was free from disease of any kind, qucere.
    
    Also, qumre, as to whether, when the patient calls witnesses to testify as to his mental condition, he does not waive his privilege under the provision and throw open the inquiry.
    Defendant’s wife was called as a witness in his behalf, and testified among other things, that the night before the commission of the crime defendant came home at nine o’clock sick at his stomach and with a severe h'eadache; that he went to bed and she put a board at his feet so that by pressing against it he could press his head against the headboard, and that he lay there for hours. On cross-examination her attention was called to an occasion, the day after the homicide, when the district attorney and certain other persons specified were present, and she was asked if she did not say to the district attorney on that occasion that she had never seen anything strange or unusual in the conduct of her husband. Also; if she did not say “ that he went to bed as usual the night before,” or “ that he went to bed and slept as usual.” She denied having said anything of the kind. Subsequently one of the persons named was called as a witness by the prosecution, and his attention having been called by the district attorney to the occasion referred to, he was asked; 11 Did she then say to us that Mr. Schuyler went to bed about nine p. m. the preceding evening in his usually healthy condition and slept all night as far as she knew? ” This was objected to, the objection overruled and witness answered, “ she did.” Held, that the evidence was properly received to contradict and discredit the defendant’s witness; and that the evidence went no further than her examination fairly justified.
    (Argued May 11, 1887;
    decided June 28, 1887.)
    Appeal from judgment of the General Term of the Supreme Court, in the fourth judicial department, entered upon an order made January 11,1887, which affirmed a judgment of the Court of Oyer and Terminer of Otsego county, entered upon a verdict convicting the defendant of the crime of murder in the first degree. (Reported below, 43 Hun, 88.)
    The indictment charged the prisoner with having on the 2d of July, 1885, at the town of Morris, Otsego county, with a deliberate and premeditated design to effect her death, killed Amy Schuyler, by violently hurling her head against a wooden block, thereby crashing in a portion of her skull and thus causing her death. The defense was insanity.
    The evidence, so far as material, is stated in the opinions.
    
      Nathaniel C. Moah for appellant.
    When cross-examination shows evidence to be improper, it should be promptly stricken out and the wrong, as far as possible, repaired. (Dunn v. Hewitt, 2 Den. 637, 638; Stebbins v. Cooper, 4 id. 191, 192; Hatch v. Pryor, 3 Keyes, 441, 443; Jennings v. Osborne, 1 N. Y. 267, 269, 270; Crane v. Crane, 5 id. 423, 424, 425; Barnett v. Williams, 7 Kan. 339, 343.) A party is not bound to interrupt the examination of a witness called by his adversary in respect to a material matter, on a mere suspicion that the witness may be debarred by his position from testifying ; he may await the cross-examination to bring out the facts, and if it appears thereby that the witness is incompetent, make his motion to have the testimony struck out. (Loveridge v. Hill, 96 N. Y. 222, 226, 227.) Under the circumstances to allow the jail, physician to give an opinion, based even in part, on what he had learned from communications to and from defendant, or from observations made while acting as a physician to defendant, was illegal and improper. (Code of Civ. Pro., §§ 834, 836; Code of Crim. Pro., § 392; People v. Murphy, 101 N. Y. 126; Renihan v. Dennin, 103 id. 573; Westover v. Ætna, 99 id. 56; Grattan v. Metropolitan, 92 id. 274, 286, 287; 28 Hun, 430; Edington v. Mutual, 67 N. Y. 185; Storrs v. Scongale, 48 Mich. 395, 396; 12 N. West. R., 505.) Prior conversations between the defendant and his wife were not admissible in this case. (People v. Lamb, 2 Keyes, 371.) A layman when examined as to facts within his own knowledge bearing on the question of sanity, may be permitted to characterize the acts to which he testifies as rational or irrational. He may testify to the impression produced by what he witnessed. (O’Brien v. People, 36 N. Y. 282; Clapp v. Fullerton, 34 id. 195.)
    
      Charles T. Brewer for respondent.
    The relation of physician and patient does not exist unless illness has been proved to exist at some time in the alleged patient. (Renihan v. Dennin, 103 N. Y. 573; Westover v. Ætna Life Ins. Co., 99 id. 57; Grattan v. Met. Life Ins. Co., 80 id. 286, 295; Edington v. Mut. Life Ins. Co., 67 id. 189; Dilleber v. Home Ins. Co., 69 id. 260; People v. Murphy, 101 id. 126; People v. Stout, 3 Park. 670.) The burden was upon the defendant to show, and that in the first instance, that the technical relation of physician and patient existed between these parties. (Cary v. White, 59 N. Y. 339; Steele v. Ward, 30 Hun, 560; Edington v. Ætna Life Ins. Co., 77 N. Y. 564, 571.) The hypothetical questions propounded to Dr. Babbitt were properly allowed. All the facts assumed having occurred before the witness ever saw the prisoner. (Edington v. Ætna Life Ins. Co., 77 N. Y. 564; Grattan v. Met. Life Ins. Co., 80 id. 281; Staunton v. Parker, 19 Hun, 57; Steele v. Ward, 30 Hun, 555; Pierson v. People, 79 N. Y. 433, 434.) The testimony of the prisoner’s wife that after he got up from the table he took “ this same child by the heels and threatened ox attempted to strike it on the stove ” was competent as part of the res gestae at the time of the killing, and as showing the animus of the prisoner toward the person killed. (People v. Jones, 99 N. Y. 668, 669; Dunn v. State, 2 Ark. 229; Thorp v. State, 15 Ala. 749; Roscoe’s Cr. Ev. [7th ed.] 92; 3 Russ on Cr. [9th ed.] 228; People v. Kern, 61 Cal. 244; People v. Shulman, 80 N. Y. 373, n; People v. Wood, 3 Park. 684; People v. Thompson, 97 N. Y. 319; Hope v. People, 83 id. 418; State v. Knapp, 45 N. H. 156; Hopkins v. Comm. 50 Penn. St. 15; Ford v. State, 71 Ala. 396.) The fact of murder being established, the inability to discover the motive does not disprove the crime. (Lake v. People, 1 Park. Cr. R. 539-541; McLain v. Comm. 99 Penn. St. 99; Goodwin v. State, 4 Cr. Law Mag. 579; State v. Green, 92 N. C. 779; Clifton v. State, 73 Ala. 478.) The people were entitled to show the history of the defendant. (1 Wharton’s Law of Ev. § 175; Lake v. People, 1 Park. 556, 557; Hochrieter v. People, 2 Abb. App. Dec. 363.)
   Per Curiam.

The able and satisfactory opinion pronounced in the court below, renders it unnecessary that much should be written now. A brief presentation of our views will be sufficient to justify the conclusion we have reached.

The killing by the defendant of his child was, upon the trial, undisputed, and his sole defense was insanity. The crime was committed on the second day of July, 1885, and the defendant was then twenty-seven years old. It does not appear that before that date he said or did anything indicating unsoundness, of mind, nor does it appear that, at any subsequent time, he gave any sign whatever, by word or deed, of insanity. From the moment of the commission of the crime, all his acts and conversations were perfectly sane and rational. He at once recognized the moral quality of his act, and was perfectly aware that he had violated the law and was liable to be punished. Down to the trial of this action, it does not appear that he ever claimed that he killed his' child while unconscious or irrational, or laboring under any delusion; but his avowal was that he had done it in a passion. Four physicians were called on the part of the defense, who testified that they had examined the defendant, and in answer to a hypothetical question, assuming such facts justified by the evidence as his counsel saw fit to insert therein, stated ■ that he was insane at the date of the crime. Four physicians were called upon the part of the people, who, in answer to a hypothetical question put by the district attorney, which contained such facts justified by the evidence as he saw fit to insert therein, testified that he was sane. There was thus ai question of fact as to the defendant’s sanity for the jury; and with their determination thereof, based, as we believe, upon a preponderance of the evidence, we have no occasion or power to interfere.

It appeared that the crime was committed when the defendant was in a great passion. Upon the evidence there was ground for claiming that' there was the absence of that deliberation and premeditation which are the necessary elements of the crime of murder in the first degree. But it was not claimed upon the trial that there was not sufficient evidence of the presence of these elements for the consideration of the jury, and their determination, justified by the evidence, also concludes us.

During the progress of the trial numerous exceptions to the rulings of the court were taken on behalf of the defendant. We have carefully examined and considered them all, and we agree that all but two are unfounded; and as to the two only, there is difference of opinion among the members of this court. To them, therefore, we will briefly direct attention. Among the expert witnesses called on behalf of the people, to give evidence as to the condition of the defendant’s mind at the time of the crime, was Dr. Bassett. He testified that for six months preceding the trial he was the jail physician, employed by the board of supervisors; that as such he had medical charge of all the prisoners in the jail; that during that time he examined the defendant at the request of both parties, and “ kept an eye on the case ” and had him under his observation; that he assumed the obligation of attending the prisoners in the jail and “ saw to the defendant as he did to the others, when he needed it.” After these statements, the court remarked to the district attorney : “You cannot give any testimony based upon any fact that he learned either from the defendant or in regard to the defendant at any time when the relation of patient and physician existed.” A hypothetical question was then stated to the witness, from which was excluded all knowledge which he had of the defendant personally, and which was based entirely upon facts which occurred before the defendant came to the jail, concluding as follows : “ Assuming those facts to be proved, and without any reference to anything except those stated, was this man, if he did the act, sane or insane at the time he committed that act?” This question was objected to on the part of the defendant “because the witness held the confidential relation of physician and patient; that it is practically impossible to eliminate the position in which he stands and decide upon a question, in this case, and the question put is in this case, as they claim upon the facts in this case, and therefore that the testimony of this witness, was incompetent and improper.” The objection was overruled, and the witness answered, “ Sane.” It is claimed that this question and answer were incompetent under section 834 of the Code, which provides as follows: A person duly authorized to practice physic or surgery shall not be allowed to disclose any information which he acquired in attending a patient in a professional capacity and which was necessary to enable him to act in that capacity.” When a party seeks to exclude evidence under this section the burden is upon him to bring the case within its purview. He must make it appear, if it does not otherwise appear, that the information which he seeks to exclude was such as the witness acquired in attending the patient in a professional capacity not only, but he must also show that it was such as was necessary to enable him to act in that capacity. (Eddington v. Ætna, Life Ins. Co., 77 N. Y. 564.) Here there was no proof that the defendant was at any time sick during the six months in which the witness was the jail physician, or that the witness ever attended or prescribed for him as a physician, or that he derived any of the information upon which the question or answer thereto could be based while attending Mm as a physician. It was assumed by the defendant’s counsel, and by the court, that the mere fact that the witness was the jail physician created the relation of patient and physician between Mm and the defendant, and that the mere existence of that relation was sufficient to exclude evidence. But the assumption by the court was beneficial rather than harmful to the defendant. It restricted the examination of the witness, and embarrassed .him in giving his evidence. An erroneous ruling in defendant’s favor could not render incompetent evidence which in its nature was competent, and the case is like that of a correct decision made by a judge under a misconception of the law. It does not appear and cannot be inferred that the defendant, in consequence of this erroneous assumption, omitted to prove anything which he otherwise could or would have proved. The inquiry related to the condition of the defendant’s mind at the time of the commission of the crime, about eleven months before the trial, and not to anything which occurred or appeared during the time he was confined in the jail; and the witness was not asked to testify as to the mental condition of the defendant while in the jail, or to disclose any information he acquired while he was there. He did not, in fact, disclose any such information, and it is utterly impossible for us to perceive how the evidence of the witness could have been excluded under that section., It is true he said it waá very questionable whether he could exclude, in answering the hypothetical question, the knowledge which he had obtained of the defendant while in the jail, and that he was unwilling to say, in giving his opinion as to the condition of the defendant’s mind at the time of the commission of the crime, .that he could eliminate from his mind such knowledge. But he nowhere in his evidence intimated that he had any knowledge which he had obtained from the prisoner while attending him in a professional capacity, or that he had received any information whatever from him which was necessary to enable him to attend him as a physician, or that he ever prescribed for him as a physician.

The hypothetical question was, therefore, in any view of the case, a competent question to put. It does not appear that, in answering it, the witness took into consideration any improper elements, and if he was influenced by the knowledge he acquired of the defendant by •seeing him in jail, that circumstance did not render the evidence incompetent. He was not bound to eliminate from his -mind that knowledge in answering the question, and even if "he could not, that did not render his answer incompetent. A proper question having been put and answered, the court waá not, upon anything appearing in the record, bound to strike it -out. The objection, therefore, to the evidence given by Dr. Bassett and the rulings of the court in reference thereto, present no error requiring the reversal of this judgment.

The object of the section referred to was to prevent the dis«closure by a physician of his patient’s ailments and infirmities, •and it may he queried whether it makes him incompetent to «testify that his patient was free from disease oí any kind; and was not Dr. Bassett, therefore, competent under any view •of the case, to testify that the defendant was not insane, but -•sane Í And when thej defendant called experts, who had «examined him, to testify as to his mental condition and to show ■that he was insane, did he not waive his privilege undefi the •.section referred to and throw open the inquiry as to his mental condition ? In other words, can a party himself upon a trial «expose his ailments and make them the subject of inquiry, and then object that his physician shall tell anything he knows about them?" We do not deeni it important to answer these questions at this time, and leave them to be solved when the •exigencies of some future case may require it.

The defendant’s wife was called as a witness in his behalf and testified, among other' things,- that the night before the commission of the crime the defendant came home at nine •o’clock, sick at his stomach, and with a severe headache; that •he undressed and went to bed and that she put a board at the ■foot of the bed so that he could press his feet against it while his head would be against the headboard, and that he lay there for hours. On her cross-examination her attention was called to a time when the district attorney and one Merrills were present with her at the court house, and she recollected having -a conversation there. She was then asked questions and gave answers as follows : Did you say to Mr. Barber (the district attorney), in the presence of Mr. Merrills that you had never seen anything strange or unusual in John’s conduct ? ” A. “ I don’t remember of saying so.” Q. “And that he was not affected by the ball play ? ” A. “I never said so.” Q. “And that he went to sleep as usual the night before the homicide, and ate as usual? ” A. “No, sir, I did not say that as I remember, because it is not true; I don’t remember of saying it.” Her attention was then called to another occasion, the day after the commission of the crime, when the district attorney, Mr. Fairchild and Mr. Sweet were present, and she was asked questions and gave answers as follows : Q. “ Did you say then to the district attorney in the presence of Mr. Fairchild and Mr. Sweet that yon had never seen anything strange or unusual in John’s conduct? ” A. “ I do not think I said so.” Q. “ That he went to bed as usual the night before?” A. “I did not say so, for it was not true.” Q. “You deny now that you said to Mr. Barber that he went to bed the night before and slept as usual ? ” A. “ I don’t remember talking to Mr. Barber the next day; I remember talking to him in his office in January.” Q. “Did you say that to him there?” A. “No, I don’t believe I did.” Q. “ You didn’t say anything of the kind?” A. “1 don’t believe I said so at all.” Mr. Sweet was subsequently called and testified that on the occasion' referred to on the cross-examination of Mrs. Schuyler, when he, Fairchild and the district attorney were present, the day after the commission of the crime, she stated that she never saw anything peculiar in her husband before that time, and he was asked this: Q. “ Did she say that the evening before he came home, he went to bed as usual, and slept all night, so far as she knew?” And he answered, “yes, sir; she did.” This question and answer were not objected to. Subsequently Fairchild was called as a witness, and his attention being called to the interview with Mrs. Schuyler, the day after the homicide, he was asked this question by the district attorney: “ Did she there say to us that Mr. Schuyler went to bed about nine p. m. the preceding evening in his usually halthy condition and slept all night, so far as she knew % ” This was objected to by the defendant as-improper and incompetent, and that there was no ground laid for the contradiction of Mrs. Schuyler, and any statements-she then made could not be binding upon or used against the defendant. The objection was overruled, and the witness-answered “ She did.” Merrills was called as a witness and his attention being directed to the interview with Mrs. Schuyler when the district attorney was present, was asked this question : Did she say to me (the district attorney), in your presence on that day that she had never seen anything strange or unusual in John’s conduct ? ” This'was objected to by the defendant’s counsel as incompetent and improper. The objection was overruled and the witness answered : I think she said she had not, more than he had headaches once in a while, she spoke about that.” He was then asked this ques - tion: Did she say that he went to bed and slept as usual the night before the homicide,” and he answered, I think she did.” In the examination of these witnesses, Sweet, Fairchild and Merrills, no error was committed. The evidence was given merely for the purpose of .contradicting and discrediting Mrs. Schuyler. She had testified on her direct-examination that the defendant came home the night before the crime,, sick; that he undressed and went to bed and that she put a. board at the foot of the bed so that he could press his feet against it with his head against the head-board, and that he lay there for hours. The purpose of the district attorney was to-show that she had made statements out of court at variance with this evidence, and the object of her cross-examination was to show that she had stated out of court that, instead of' going to bed in that unusual manner, he went to bed as-usual the night before and slept as usual. After she had substantially denied making such statements or any statements of that kind, these witnesses were called for the purpose of contradicting her, and we think no error was committed in receiving their evidence. That evidence went no further than her examination fairly justified, and it was a proper contradiction of what she had testified to.

Upon the whole case we do not believe that any error was ■committed upon the trial prejudicial to the defendant, and the judgment should be affirmed.

Rapallo, J.

(dissenting). The deceased was a daughter of the prisoner and his wife, Minnie Schuyler, and was about three years of age. Evidence was given on the part of the prisoner that he had resided at Morris for four or five years and was a quiet, peaceable and gentlemanly man. This was not controverted by the prosecution. It appeared by the evidence of Minnie Schuyler, the mother of the deceased, that on the morning of the second of July, on lea,ving his home for his place of business, which was near by, he kissed her and his two children, as was his custom, and that he was always kind to the children, and particularly to Amy, for whom be showed partiality. When he went away his wife asked him to bring home some berries.

The evidence on the part of the prosecution showed that he ■did not returnrnntil about two o’clock in the afternoon, which was much later than his usual hour for dinner; that an altercation immediately ensued between him and his wife, which was followed by them throwing dishes at each other; that he then struck her and she ran out into the yard through the wood-shed which was in the rear of the house, he following her. Their next door neighbor, Sweet, saw the affray through the window and cried out to him “John, hold on.” As he spoke the prisoner looked up at the witness, and Mrs. Schuyler ran out of the wood-shed door, the prisoner right after her; as he came out of the door he said to witness “ this is a family affair and neighbors need not interfere; ” witness then reproved him for striking his wife; the prisoner denied that he had done so; the witness repeated the charge, and the prisoner again denied it; Mrs. Schuyler then spoke and said, “John, you lie, you "did strike me,” and she pointed to blood upon her face; witness then turned away and the next thing he saw .was Schuyler going back into his house; he went a few steps and came out again; she, Mrs. Schuyler, was then going away from the wood-shed door towards the road and the prisoner asked her whether she was going to take care of those young ones, and she said no, I am not; ” other witnesses, said her reply was no, 1 am not, while you are here; ” he then turned hack and entered the wood shed door out of Sweet’s sight, and the next thing Sweet saw was the prisoner coming out of the wood-shed door holding the child hy hoth its ankles, head down, and he struck its head three times on a large wooden block which stood near the wood-shed.

The mother, Sweet and several neighbors, who had been attracted by the fracas, were then in sight, and their testimony substantially agrees with that of Sweet. There was no claim that the prisoner was intoxicated. As he dashed the child’s head against the block he exclaimed: See here.” The space of time which elapsed between the prisoner entering the door of the wood-shed and reappearing with the child was-very brief. Sweet testified that it was not more than four or five seconds, and this was not controverted. It all happened while the wife was walking from the wood-shed door toward the road, and she had gone but a short distance when the child was killed. After having killed his child he laid the body down by the block and walked to the front of the house, then turned back and took the body in his arms and carried it into the house, laid it on a lounge and then went to-the front of the house and said that he had killed the baby and expected to hang for it. He asked some one to go in and close its eyes and mouth and to look after the younger baby, and proceeded toward the village. Meeting Mr. Gardner, a deputy sheriff, he surrendered himself, and said to him that he had killed his child, and that it would not have happened but for the neighbors. He was taken to a hotel, where he remained in custody several hours while the papers for his commitment were being prepared. During this time he conversed with several persons, and he was afterwards conveyed' by wagon, in charge of Gardner and Mr. Taylor, a former deputy sheriff, to the jail, twenty-two miles distant, occupying about four hours in the trip. His declarations to these witnesses, as well as to those with whom he conversed at the hotel, were put in evidence by the prosecution.

At the hotel he said to Hall: I have killed my child and expect to hang for it.” He began crying and lamenting, saying: “I have killed that dear child, and the child was not to blame.” My poor little Amy; 1 have killed my child, my poor little innocent child; ” that his temper got the best of him. To Dr. Hall he said: “ They say 1 have killed' my child; is she dead ? ” He also said if it had not been for Sweet it would not have happened. Ealph Murdock,, who» appears to have been an intimate friend of the prisoner, camei to see him at the hotel, and the prisoner put his arms around his neck and said: “ Ealph, don’t be down on me for thisit. was done in a passion, and what’s done can’t be undonea.nd repeated: It was a sad, sad caper; ” and later on he said that Sweet caused it. When told that he would not be tried before January, he expressed regret that, he would have to wait so long. In the wagon he sat with Taylor on the back seat, and was handcuffed to him. He was sobbing and crying and repeatedly exclaiming, “ Is it possible that I have killed that poor little child?” Taylor testified that the prisoner slept on the way, or seemed to be asleep, and would start up occasionally and speak of his child every time he roused up,, and moan: 11 Oh, my poor little child.”

Minnie Schuyler, the wife of the prisoner, was called for the defense, and related the origin of the quarrel with her husband on the occasion in question. She testified that when he came home to dinner she stood in the front door, and he came along swinging his pail in such a manner that she thought he had no berries in it (in which she proved to have been mistaken), and she reproached him with being so late and keeping her waiting at a time of day when she had so much to do. An angry altercation then ensued. She says he looked so strange, so funny, that she accused him of having been drinking, which he denied. He sat down and she told him to help himself to the dinner. He looked very staring, eyes glassy, very pale and lips blue. She made some remark* he picked up a cup and saucer and threw it, and she picked up a saucer and threw it at him, and he then grabbed her. She told him not to talk so loud as the neighbors would hear, and he shut down the window. She ran into the back room and he struck her and she fell. Then Sweet spoke to him, and she relates the rest according to the testimony of the witnesses for the prosecution. She says that she told him twice that he lied, and that she spoke unkindly to him, very unkindly. She was asked whether from what she saw of him then and heard him say she believed that he was rational or irrational then, but on objection by the prosecution the question was excluded. The witnesses for the prosecution describe him as having looked very pale at the time of the commission of the crime.

The evidence on the part of the defense to sustain the plea of insanity was to the effect that when he was eleven years of age (he was twenty-seven at the time of the killing) he had a sun-stroke, from the effect of which he was confined to his bed for several days; that he had been a weakly child from his birth, and was troubled generally with costiveness; that .he had been beaten on the head with stones; that he had been brought home insensible from other injuries; that there were some depressions in his skull; that ever since the sunstroke he had suffered severe headaches which caused him to manifest great pain, accompanied and followed by pallor; that a week or ten days before the homicide, in playing ball, he had violently butted his head against that of another person and was thereby felled to the ground with much force; that from that time to the second of July he complained of severe headaches, and his wife testified that on the night before the homicide on retiring he complained of a severe headache, and when he retired she procured for him a board against which he pressed his feet while he pressed his head against the head board of the bed, and lay thus for several hours. She describes these headaches as very violent, and his actions as strange while he was suffering from them. On tlie morning of the day of the homicide, which was a hot day, he worked for a considerable time hoeing in the garden, in the sun, wearing a black skull cap. Afterwards, during the morning, he had a heated discussion on politics with a neighbor, in which he became much excited, and was in this condition when he came home, and was received by his wife in the manner which she described. There was a great deal of testimony on these and other points and on the part of the defense, five physicians, Drs. Hall, Pilgrim, Crane, Hills and McClellan, testified, four of them, in answer to a hypothetical question, detailing facts in evidence, and which was not objected to by the prosecution as assuming any fact not in evidence, and Dr. Hall testifying from what he saw on the day of the homicide, that, in their opinion, he was insane at the time of the commission of the act, two of them saying they had no doubt about it. Three of these physicians were acquainted with the prisoner, and had seen him frequently at his residence, but they agreed that when they saw him, after his arrest, he was sane, their theory being that his brain was diseased in a manner liable to develope into insanity under peculiar excitement, and Dr. Hall expressing the opinion, on cross-examination, that he was delirious at the time of the homicide. This evidence was met by the prosecution by the testimony of four physicians who had never seen the prisoner until after he had been confined in the jail, and who, in answer to a hypothetical question framed by the prosecution, and which was objected to by the defense as assuming facts not in evidence, and omitting facts in evidence, expressed the opinion that he was sane. To some of this evidence exceptions were taken by the defense which are referred to hereafter. Exception was also taken to the admission of evidence as to the declaration of the mother of the deceased for the purpose of impeaching her credibility, which is also set forth in detail.

The atrocity of the act committed by the prisoner was such as necessarily to excite the indignation of the jury as well as of the court, but its unnatural character, in view of the previous character of the man as a quiet and peacable person, and of his affection for his child render it difficult, if not impossible, to conceive that he could have been, at the time, go far in possession of his faculties as to be capable of the deliberation which, by our statute, is made an essential element of the crime of murder in the first degree.

. There was undoubtedly sufficient evidence of the intent to-kill, and sufficient also to satisfy the former statutory requirement of premeditation, but in view of the conceded facts, and of the position taken by the prosecution, no case was made for the submission to the jury of the question of deliberation The evidence as well as the claims of the prosecuting attorney rebut the idea that the prisoner deliberately premeditated and intended the death of his child and clearly characterize the act as one of momentary frenzy resulting either from temporary insanity, or anger working on an enfeebled brain to such a degree as to render the patient incapable for the moment of deliberating or exercising his reasoning powers.

His conduct and exclamations after he had recovered from his paroxysm, and which were put in evidence by the prosecution, show that in the commission of the act he did violence to his own nature and affections. His lamentations over the death of his innocent child, the manner in which they were expressed, so soon after the commission of the fearful deed, his anxiety that the punishment which he supposed that he merited should not be deferred, all show (and this is the evidence on the part of the prosecution) that he was not himself-when he committed the act, and that he condemned himself as soon as he returned to consciousness. Ho intoxication is claimed by the prosecution or could be claimed.

The claims of the prosecution on the trial, as shown not only by the examination of the witnesses, but as summarized in the charge of the judge, were in accordance with what the prisoner said to his intimate friend Ralph Murdock, when at the hotel after the arrest. “Ralph, don’t be down on me for this, it was done in a passion, and what’s done can’t be undone.” The learned judge in charging the jury stated .the claims made by the prosecution and the defense. The defense claimed that the pallor of the prisoner was one of the evidences of his insanity. The judge stated to the jury that it was claimed by the prosecution that the prisoner at the time “ was angry, that he was pale from anger, that the expression of his eyes and his demeanor were from anger; that all the symptoms and appearances established by the evidence in the case were the symptoms of anger rather than those of insanity.”

Assuming this to be all true as claimed by the prosecution, taken in connection with the undisputed testimony of Sweet, that between the time of the last provocation, which appears to have incensed the prisoner, when he re-entered the wood shed, and the time when he reappeared holding the child by its ankles and dashing its head upon the block, not more than four t>r five seconds elapsed; that it all happened while his wife was walking away from the wood shed towards the road and had proceeded but a very short distance, that the prisoner was pale from anger, and considering these circumstances in connection with the other evidence on the part of the prosecution, is it possible to say that the evidence was such as to authorize a verdict of deliberation and premeditation or even the submission of that question to the jury.

A man pale with rage seizes on the instant his favorite child of tender years, and publicly, in the presence of his wife and neighbors, brutally dashes its head' against a block, and immediately afterwards realizes what he has done, invokes, death as the proper punishment for his crime, and pathetically laments the death of his child ; and this a man of ordinarily quiet and peacable. disposition. If these facts do not indicate temporary insanity in a person whose physical condition is-such as to render him susceptible to such a paroxysm, they at least show such a momentary suspension of his moral faculties and reasoning powers as to render him, for the time, incapable of that deliberation which the law demands that the prosecution should establish.

But, strange to say, that point was not taken on the part of the defense, and no exception raising it is contained in the ease. This court is, consequently, powerless to correct any error which may have been committed in that regard; and although, in my opinion, a conviction of murder in the first degree was not justified under the conceded facts, and the verdict should have been in the second degree, irrespective of the defense of insanity, the only remedy for this error rests with the executive.

With regard to the defense of insanity, the evidence was such as would have justified a finding either way; consequently the verdict of the jury is conclusive upon this court, unless some of the exceptions taken by the defense are sustained. In my judgment, under the circumstances of this case, these exceptions should be considered with careful attention; not because there is anything in the case which ■should incline as favorably towards the prisoner, but because, in my judgment at least, his conviction of murder in the first degree is not warranted by the present statute, and if any legal ground exists for having him retried and a proper verdict rendered, it should be made available.

One of the four physicians examined as experts on the part of the prosecution, Dr. Bassett, was the physician employed in the jail where the prisoner was confined after his arrest for the homicide, and it was his duty to attend and prescribe for the prisoners when ill. He had never known the prisoner before, and did not know his antecedents, upon which the physicians called by the defense had predicated their opinion that the prisoner’s brain was diseased. Dr. Bassett testified that he had been for forty-two years a physician and surgeon, and had examined tbe prisoner while in the jail, commencing about the first of December (six months After the homicide), and had kept his eye on the case ever since; that he was the physician of the jail, appointed in Hovember, and had acted as such down to the time of the trial; that he saw to the prisoner whenever he needed it, as he did to the other prisoners ; that he assumed the obligation of attending to those patients in the jail; that the prisoner was one of them whenever he required attendance, and that that relation still existed. Thereupon the prisoner’s counsel objected to any testimony of the witness, and the court instructed him that he could not give any testimony based upon any fact that he learned either from the prisoner or in regard to him, at any time when the relation of patient and physician existed. The district attorney then asked the following question: “ Eliminating from your answer all consideration of any evidence that you obtained as to his-condition from any talk with him, or from anything that you observed in him when you were attending him as jail physician, you may state is he sane or insane ? ” The question being objected to, the court asked the witness: “Is it possible for you to eliminate the knowledge you have obtained there?” The witness answered, “It is very questionable.” The court then said: “ I guess we will not take the evidence; I don’t believe he can do it.” The district attorney then asked him whether he could, and the witness answered that he was not willing to say that he could separate the two; that it intermingled in such a way that he did not think he could separate them. The district attorney then read to the witness a long hypothetical question of five printed pages, different from that which had been asked of the witnesses for the defense, and asked him to throw out of the case everything except the facts which he there assumed to be proved, and, after reading the question, asked the witness : “ Assuming those facts to be proved, and without any reference to anything except those stated, was this man, if he did the act, sane or insane at the time he committed that act ? ”

This question was objected to on the ground that it assumed facts not proved, specifying them. Also because the witness held the confidential relation of physician and patient and it was practically impossible to eliminate the information obtained in that relation.

The court overruled the objection and allowed the question, and the witness answered “ sane.” Being cross-examined the witness stated that he thought it was a practical impossibility for him to eliminate from his own mind the convictions formed as the physician of the prisoner, and thus answer the hypothetical question. Being reminded that he had answered it, he said that when it was ruled that he should answer he supposed that he must answer, that he withdrew his answer and did not wish it to be treated as an answer. The counsel for the prisoner asked the court to strike out the answer. The district attorney objected, and the court held that it could not strike out the answer and the prisoner’s counsel excepted.

I think the substance of the statement of the witness was ■that it was impossible for him to answer the hypothetical question without being influenced in his answer by the convictions he had formed while attending the prisoner as his physician. That consequently his testimony had been based in part upon what he had thus learned, and that when this was made to appear by the cross-examination, the judge erred in holding that he could not strike out the answer which the witness had given, as he supposed, under compulsion, and that the court not only had the power to strike it out, but ought to have done so. The witness was the most experienced physician examined in the case, and his testimony must have had great weight with the jury.

The ruling of the trial judge is sought to be sustained on the ground that it was not distinctly proved- that the witness had attended the prisoner as his physician. I do not think that this is a fair criticism. There was no suggestion, even, upon the trial of any such ground. If there had been, then the proof on this point could have been made still more explicit than it was, for Dr. Babbitt, the predecessor of Dr. Bassett, as jail physician, and who acted as such during the first five months of the prisoner’s confinement, stated that he prescribed for the prisoner several times, and like others, considered him his patient. Dr. Bassett testified that he saw to the prisoner whenever he needed it as he did to the other prisoners, that he assumed the obligation of attending those patients in the jail, and the prisoner was one of them, whenever he required attendance, and that relation still existed. The objection was placed on the express ground that the con-

Sciential relation of patient and physician existed between the prisoner and Dr. Bassett and this was in no way disputed, but on the contrary the district attorney in his question assumed that .that relation existed, for he asked the witness to eliminate from his mind information obtained by Dr. Bassett while he was attending him as physician, and the court also assumed and held that the relation had been sufficiently proved, first by excluding the examination of Dr. Bassett, and next by asking him whether it was. possible for him to eliminate the knowledge then obtained, and at first excluding the witness on the ground that the court did not believe that he could eliminate the privileged matter. After all this it would have been idle for the prisoner’s counsel to go into details to show that Dr. Bassett had attended the prisoner as his physician, a fact which appeared to be conceded by court and counsel. It would be very unfair to deprive the prisoner of the benefit of his objection on the ground that he had not been sufficiently definite in his proof of the fact thus assumed and conceded.

I think there was also error in the admission of the question to George W. Fairchild, a newspaper editor, who had testified that he went with the district attorney, Mr. Barber, to Mr. Sweet’s house to see the prisoner’s wife, and there had a talk with her in presence of Mr. Sweet. The district attorney then asked the witness the following question: “ Did she then say to us that Mr. Schuyler went to bed about nine p. m. the preceding evening in his usual healthy condition and slept all night as far as she knew % The prisoner’s counsel objected to the question as improper, incompetent, and that no ground had been laid for the contradiction of Mrs. Schuyler, or any statements she made there, and that they could not be binding upon or used as evidence against the prisoner. The objection was overruled, the defendant excepted and the witness answered, “ She did.”

I think this exception was well taken. The only ground laid for the question as a contradiction was in the question to Mrs. Schuyler, “ Did you say to Mr. Barber, in the presence of Mr. Fairchild and Mr. Sweet, that he went to bed as usual the night before,” to'which she male a negative answer.

A contradiction of that answer would not have been very-material, but the statement, as testified to by the witness, and as recited in the question, was a very material contradiction and entirely different from that as to which she had been • asked on her cross-examination. She had testified to his" severe headache that night and her arranging a board against which to brace himself so as to press his head against the head-board of the bed, and other facts quite inconsistent with his then being in liis usual health, and she had not been asked as to any statement in regard to the state of his health when he went-to bed.

The prisoner’s wife was a very important witness in his behalf, and many facts depended upon her testimony alone. Any impeachment of her credibility was, therefore, highly prejudicial to the defense.

For the errors pointed out I think there should be a new trial on which the degree of the crime may be considered.

All concur for affirmance except Bapallo, J., who reads for reversal, and Andrews, J., dissenting '

Judgment affirmed.  