[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 300 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 a *Page 303 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 *Page 304 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 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 *Page 305 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 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 *Page 306 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 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 from 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 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 deem 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 *Page 307 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 you 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. "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: 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 *Page 308 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 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 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. *Page 309
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.