
    The People of the State of New York, Resp’ts, v. John M. Schuyler, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed July 1, 1887.)
    
    1 Criminal law—Insanity as a defense—Premeditation.
    The insanity of a defendant charged with crime, or the absence of deliberation and premeditation, are questions of fact for the jury, and where their determination is based upon a preponderance of the evidence, the court of appeals has no occasion or power to interfere.
    3. Same—Evidence—Privileged communication—Code Civ. Pro., § 884.
    When a party seeks to exclude evidence of communications to a physician as a privileged communication, under Code Civ. Pro., § 884, the burden is upon him to bring the case within its purview. He must make it appear, if it does 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 bnly, but lie must also show that it was such as was necessary to enable him to act in that capacity.
    3. Same—Jail physician.
    A witness was called who has been, for six months before tne trial, the jail physician, and had examined the defendant at the request of both parties. He “saw to the defendant, as he did to the others, when he needed it.” An hypothetical question as to prisoner’s insanity was then put to him, with the direction that he exclude all knowledge he had of the defendant personally, and based on facts which occurred before the defendant came to the jail. Feld, competent; that the witness was not asked, to testify to the mental condition of the defendant while in the jail, or to disclose any information he acquired while he was there.
    4. Same—Evidence.
    The prisoner’s wife stated, on direct examination, that the night before the crime he came home sick, that at his request she put a board at the foot of the bed, so that he could press his head against the head-board, etc. The district-attorney ofEered to prove that witness, the day after the homicide, had stated that she never saw anything peculiar in her husband before that time, and that he slept as usual the night before. Feld, competent; that such evidence went no further than her examination fairly justified, and was a proper contradiction of what she had testified to. Rapadlo & Andrews, JJ., dissenting.
    
      ■Appeal from the judgment of the supreme court, general term, fourth department, affirming the conviction of the prisoner of the crime of murder in the first degree.
    The indictment charged the prisoner with having, on the 3d 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 crushing in a portion of her skull, and thus causing her death. The defense was insanity.
    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, Eeaceable and gentlemanly man. This was not controverted y the prosecution. It appeared, by the evidence of Minnie Schuyler, the mother of the deceased, that on the morning of the 3d of July, on leaving 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 he 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 return until 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 their 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 ydoor, he said to witness: “This is a family affair, and neighbors need not interfere.” Witness then reproved him .for striking his wife. 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 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: “Ho, I am not.” Other witnesses said her reply was: “Ho, I am not while you are here.”
    He then turned back, 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 "by both its ankles, head down, and he struck its head three times on a large wooden block which stood near the woodshed. 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 towards 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 towards the village. Meeting Mr. Gardner, a deputy sheriff, he surrendered himself, and said to him that he had killed the 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 ! I have killed my child, my poor little innocent child;” that his temper got the best of him. To Dr. Hall he said “ They say I have killed my child. Is she dead ?” He also said, if it had not been for Sweet it would not have happened. Ralph Murdock, who appears to have been an intimate friend of the prisoner, came to see him at tho hotel, and the prisoner put his arms, around his neck, and said: “Ralph, don’t be down on me for this, it was done in a passion, and what’s done can’t be undone;” and 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 testies 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: “ 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 sun-stroke 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 the morning of the day of the homicide, which was a hot day, he worked for a considerable time hoeing in his 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 develop 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 an 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 in the opinion, and exception was also taken to the admission of evidence as to declarations of the mother of the deceased for the purpose of impeaching her credibility.
    
      Nathaniel C. Moak, for app’lt; Chas. T. Brewer, districtattorney, for resp’t.
    
      
       Affirming 43 Hun, 88.
    
   Per Curiam.

The able and satisfactory opinion pronounced m 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 an 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 a 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 of the county; 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 1¿he 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 gi ve 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.” An 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 is 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 folows; “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 Edington 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 him 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 him 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 lime 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 was 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 the jail, that circumstance did not render his 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 was 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 disclosure by a physician of his patient’s ailments and infirmities, and it may be queried whether it makes him incompetent to testify that his patient was free _rom disease of 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? And when the 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 under the section'referred to, and throw open the inquiry as to his mental condition? In other words, can &. 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 deem it important to answer these questions at this time, and leave them to he 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 head-board, and that he lay there for hours. On her cross-examination her attention was called to a time when the district-attorney and one Morrills were present with her at the court-house, and she testified that she recollected having a' conversation there. She was then asked questions and gave answers as follows: “Did you say to Mr. Barber [thedistrict-attorney,] in the presence of Mr. Morrills, that you had never seen anything strange or unusual in John’s conduct? Answer. I don’t remember of saying so. Question. 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. Ho, 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: “ Question. Did you say then to the district attorney, in the presence of Mr. Fairchild and Mr. Sweet, that you had never seen anything strange or unusual in John’s conduct? Answer. 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. Ho; I don’t believe I did. Q. You didn’t say anything of the kind? A. I 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: “Question. Did she say that, the evening before, he came home, went to bed as usual, 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 9 p. m. the preceding evening in his usually healthy 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.”

Morrills 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 ■ ,'ounsel 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 question: “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 Morrills, 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 headboard, and that he lay there for hours. The object 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 vzas 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 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 peaceable person, and of his affection for his child, renders it difficult, if not impossible, to conceive that he could have been, at the time, so 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. No 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 dashed its head upon the block, not more than four or 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 the 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 punislnnent for his crime, arid pathetically laments the death of his child; and this, a man of ordinarily quiet and peaceable disposition. If these facts do not indicate temporary msanity 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 case. 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 insanitv. 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 the case which should incline us 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 the prisoner while in 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 November, 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: “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?” This 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 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 j'ury.

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 they required attendance, and that relation still existed. The objection was placed on the express ground that the confidential 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 thus 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 nave 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 usually healthy condition, and slept all night, as far as she knew?” The prisoner’s counsel objected to this 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 made 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 his usual health, and she had not been asked as to any statements 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.

Andrews, J., concurs.  