
    Supreme Court—Appellate Division—Third Department.
    May 2, 1900.
    PEOPLE v. FRANK O'DONNELL.
    (51 App. Div. 115; 98 St. Rep. 263.)
    Insanity of prisoner—Testimony of lay witness.
    In a case where the insanity of the prisoner is the sole question litigated, a lay witness cannot, without describing his actions and without detailing in full conversations had with him, be permitted to declare his opinion that the prisoner seemed rational.
    
      Appeal by the defendant, Frank O’Donnell, from a judgment of the County Court of Franklin county in favor of the plaintiff, entered in the office of the clerk of the county of Franklin on the 7th day of December, 1899, convicting him of the crime of burglary in the third degree and grand larceny in the second degree, and also from an order entered in said clerk’s office on the 7th day of December, 1899, denying the defendant’s motion for a new trial.
    R. M. Moore, for the appellant.
    Gordon H. Main, for the respondents.
   Smith, J.

The question litigated was of the insanity of the defendant. The acts constituting the burglary and larceny were committed on the 13th day of October, 1898. The defendant offered in evidence a certified copy of an original inquisition adjudging him to be a lunatic upon the 16th day of June, 1897. Witnesses were produced who swore to acts which to the jury might have indicated an unsound mind. An expert physician swore to the fact that he was insane at various periods preceding the doing of the acts charged. Evidence was produced sufficient to raise a question of fact for the jury as to whether the defendant was insane at the time of the commission of the alleged wrongful acts. A lay witness, an undersheriff of Franklin county, was examined for the People and testified as follows: “ I talked with him coming from the junction to the jail the "day he was arrested. I told him it looked as though he was in a bad scrape. He said it looked that way. He didn’t say much. Q. Did his actions and what he talked about impress you as being rational or irrational ? Did he appear rational or irrational? [Objected to as incompetent, immaterial, and calls for expert testimony. The impressions of the witness cannot be given in evidence. Overruled. Exception.] A. He appeared to be rational. ”

This exception appears to us to present an error which the court cannot disregard. The witness was not claimed to be an expert witness. The extent to which a lay witness may go in characterizing the acts of the party as rational or irrational has been clearly defined by the authorities.

In Paine v. Aldrich (133 N. Y. 547) Judge Maynard, in writing for the Court of Appeals, says: “ The witness was a layman, and could not properly give an opinion as to the mental capacity of the grantor, or as to whether he was rational or irrational, even when such opinion might be based upon specific acts and conversations and his personal observations. He could state the acts and conversations of which he had personal knowledge, and then be permitted to say whether, in his judgment, such acts and conversations were rational or irrational, or were those of a rational or irrational person. This is the extent to which any of the cases have gone, and the tendency is to limit rather than enlarge the rule, because even in its present form it is an infringement of the fundamental law of evidence that a witness, who is not an expert, shall not be permitted to testify to his conclusions or opinions as to an issuable fact.

In the case at bar, without describing his actions, without detailing in full the conversation, this lay witness was permitted to declare his opinion that the prisoner appeared rational. Within the authority cited this would seem to be error.

It is unnecessary to examine the other questions presented by the record, as for this error the judgment must be reversed. .

All concurred.

Judgment of conviction reversed and a new trial ordered.  