The majority opinion is for reversal, on these grounds:
1. That it was prejudicial error to permit Mrs. Kushner, sister of the deceased, to testify to a conversation wherein Mrs. Kushner urged defendant to permit an autopsy and wherein Mrs. Kushner mentioned to defendant that Mrs. Berkowitz, the mother of the witness and of deceased, had exhibited before her death some of the same symptoms as deceased.
2. That this alleged error was not cured by the court's instructions to the jury that the jurors were not to infer, or suspect from the testimony above referred to, that defendant "had any hand in causing Mrs. Berkowitz's death".
3. That this alleged error was the more serious and requires a reversal here, because, we are told, the central fact issue in the case — as to whether deceased died from strychnine taken at the hospital an hour and a half before her death or at her home thirty hours before her death — had to be decided by the jury merely on a choice between the conflicting views of two sets of qualified experts.
4. That certain language in the court's charge as to reasonable doubt was susceptible of implications unfavorable to defendant's position.
We cannot agree to any of those four propositions. In our view, no error was committed on the trial and the jury's verdict *Page 141 stands on evidence strong enough and convincing enough to leave the jurors without any reasonable doubt of defendant's guilt.
1. The conversation between Mrs. Kushner and defendant on the day after the funeral, testified to by the former, is quoted in Judge LEWIS' opinion. In that conversation Mrs. Kushner did not accuse defendant of responsibility for the death of her sister or of her mother. She asked defendant to permit an autopsy so that the family, bereaved by the two deaths, might "find out" their cause. She pointed out to defendant that she (Mrs. Kushner) had two children of her own and that she did not want her two children "to be stricken that way". The cause of death was not then known, as to either the mother or the daughter. The reference to the mother's symptoms, in this conversation, was a natural one, since it was the similarity of symptoms which troubled Mrs. Kushner and led her to desire further investigation into the two deaths. Defendant refused to consent to an autopsy. We do not understand that the majority is holding that it was error to receive the testimony as to that refusal. There is in the record other evidence, received without objection, given by the family physician that he, too, suggested to defendant, soon after the funeral, that the body be exhumed, for the same purpose.
It has always been held in this State that efforts to conceal a crime, or the evidence thereof, are "proper subjects of consideration, as indicative of a guilty mind, and in determining the question of the guilt or innocence of the person charged" (People v. Place, 157 N.Y. 584, 598; see People v.Buchalter, 289 N.Y. 181, 217). "It is today universally conceded that the fact of an accused's flight, escape from custody, resistance to arrest, concealment, assumption of a false name, and related conduct, are admissible as evidence of consciousness of guilt, and thus of guilt itself" (2 Wigmore on Evidence [3d ed.], § 276). "Evidence of flight, concealment or analogous conduct is always admissible" (People v. Reddy,261 N.Y. 479, 486). This is an application, perhaps, of the more general rule that "the demeanor of a prisoner at the time of his arrest, or soon after the commission of a crime, or upon being charged with the offense, is a proper subject of consideration in determining the question of guilt" (Greenfield *Page 142 v. People, 85 N.Y. 75, 86). Such evidence, like evidence of flight, is taken "upon the theory that the jury will give it such weight as it deserves, depending upon the surrounding circumstances" (Ryan v. People, 79 N.Y. 593, 601). The kinds of conduct properly suggesting consciousness of guilt are beyond enumeration, as Wigmore points out (Vol. II, [3d ed.], § 273 [1]). We think the refusal of a husband to heed the entreaties of his wife's sister — and the suggestion of the trusted family physician — that an autopsy be had to delve further into a mysterious death, is such conduct. In itself it does not establish guilt — there is much stronger proof here as we shall point out hereafter — but it is a circumstance from which the jurors could conclude that defendant was trying to prevent a scientific investigation of his wife's death. The jurors might be satisfied with the husband's explanation for his refusal, as given to the family physician: that he had religious scruples against exhumation. They might, on the other hand, decide that it was a case of "The wicked flee when no man pursueth", or they might attach to the incident no importance whatever. It was for them to say.
If, then, it was proper to let the jury hear about defendant's rejection of the suggestion, it was right and fair that they should hear the whole of the conversation between defendant and his sister-in-law. Her statement of her reasons for wanting a post-mortem examination might be important to the jury in judging the significance of defendant's refusal to permit it. Such a demand, if made without any show of reason, might well be ignored by a husband. But Mrs. Kushner's reasons were weighty ones — or so the jury might think — and the husband's spurning of so moving a supplication might be meaningful to a jury. The jury was entitled to hear the whole of the conversation and the reception of the whole thereof was not erroneous merely because it might start the jury thinking about another possible crime (seePeople v. Buchalter, supra, 289 N.Y. at pp. 217, 218).
As Judge LEWIS points out, the District Attorney in his summation quoted to the jury the testimony of Mrs. Kushner, including the reference to the mother's symptoms, and also reminded the jury that Dr. Ginsberg, too, had suggested a post-mortem examination. The District Attorney then argued to the jury *Page 143 that the defendant's refusals amounted to concealment. We think that was fair argument. We have examined with care the several paragraphs of the prosecutor's summation in which he discusses, and argues from, defendant's answers to the proposals that the body be disinterred. We find nowhere in that summing-up speech, any suggestion, open or covert, that defendant was involved in the mother's death also.
2. If there was any error in the admission of the proof of that conversation or in letting the District Attorney discuss it in summation, the error was cured by the trial judge's clear and positive instructions to the jury, as quoted in Judge LEWIS' opinion. In plainest language the County Judge told the jurors, just before they retired to deliberate, that they must not infer or suspect that defendant had anything to do with the death of his mother-in-law. We are in duty bound to presume that those instructions effaced all prejudice (People v. Barnes,202 N.Y. 77, 78; People v. Pacelli, 251 N.Y. 66, 67).
3. We are told that the prejudicial references to the mother-in-law's death symptoms were all the more unfair to this defendant since this, so it is said, was a close case where the jury had to settle the principal issue of fact by balancing, one against the other, the more or less equally strong, but directly contradictory, opinions of the rival groups of experts. Surely it is not the law that experts always cancel each other out or that a defendant, merely by producing an expert to swear the other way, creates, as matter of law, a reasonable doubt of the validity of the opinion of the People's expert. Such cases asPeople v. Harris (136 N.Y. 423), People v. Buchanan (145 N.Y. 1), and many others, show that it is for the jury to resolve such disputes and decide where the truth lies (see People v.Place, 157 N.Y. 584, 594). It was, of course, essential here that the People prove beyond a reasonable doubt that Mrs. Feldman died from strychnine administered to her at the hospital. That a massive dose of strychnine killed her was established by the post-mortem findings (an autopsy was finally had pursuant to a court order). Unquestionably she had ingested some quantity of that drug at her home, thirty hours before her death. If that was the lethal draught, defendant could not be convicted here. It had to be shown that the fatal dose was swallowed at the hospital and that defendant was responsible for the presence of the *Page 144 strychnine in that dose. With his own hands he had filled the six bottles of prescribed medicine, so, if the poison was in one of those bottles, defendant put it there. What was left to prove was that the wife died from drinking the bottle of medicine which the nurse gave her at 2:30 A.M. on the morning of December 9th, a half hour before her fingers flexed, her body discolored and there began the final convulsions that continued until her death at 4:00 o'clock. Before the nurse furnished that dose, Mrs. Feldman had showed signs of improvement and approaching recovery. If that last attack resulted from the medicine taken just before the onset of the attack, then, in all human probability, defendant was guilty of murder by poisoning. Three experienced, thoroughly qualified specialists testified for the People. Answering the same hypothetical question, each told the jury, flatly and positively, that the woman could not have lived for thirty hours with 3.7 grains of strychnine in her body. (One grain is fatal, it is agreed.) The fatal ingestion, they insisted, must have been at the hospital. They were certain that such a quantity of the poison would kill within a period of ten minutes to an hour. From the established facts, as related to them, they concluded that the poison was in the second bottle of medicine. The defense called two expert witnesses. Neither of them met the People's proof head on. Neither gave testimony nearly as strong or positive as that of the People's experts. Dr. Danzer, for defendant, would go no further than to say that death, under the circumstances, "might have" or "could have" resulted from strychnine taken before Mrs. Feldman went to the hospital. He pointed out that total elimination of strychnine from the system, by nature's own methods, sometimes takes two or three days. He knew of cases where patients, having taken deadly doses of strychnine, lived for thirty-six hours afterward. Dr. Danzer did not say that he ever heard of a person living for thirty hours, or any other period, after taking 3.7 grains of strychnine. His opinion seemed to be that the other medicines (all nonpoisonous), given Mrs. Feldman at the hospital, necessarily retarded the action of the strychnine so that a day and a half elapsed before the woman died of the poison. To conclude from such theorizing that the poison was taken before admission to the hospital would be to conclude that no quantity of the drug, however great, could *Page 145 produce death in less than thirty to thirty-six hours. The witness did not go that far and the jury would not have been bound to go that far with him. The People's witnesses were certain that 3.7 grains of strychnine would bring death in an hour or less. Dr. Danzer did not directly dispute that. His opinion was that, ordinarily, treatment such as Mrs. Feldman had at the hospital would slow up the fatal processes and keep the patient alive for twenty-eight hours or more. Defendant's other expert, Dr. Melinos, was even less helpful to defendant's cause. On cross-examination he admitted that it was "improbable" that the woman could have lived twenty-eight hours with 3.7 grains of strychnine in her system. The jurors were justified in accepting the clear, strong statements of the People's technical witnesses, statements not broken down on cross-examination and not directly disputed by Dr. Danzer or Dr. Melinos.
The People had to prove that the poison was in the second bottle. We think the People proved that, to the hilt. But there was much other proof against defendant. Since this is a dissenting opinion, we will not analyze those corroborations but merely list them: defendant's greed for money, his attentions to another woman, his disparaging remarks about his wife (seePeople v. Benham, 160 N.Y. 402), his false statements when questioned by the police and by the prosecutor. Those items form a background for the undisputed showing that Mrs. Feldman died from a triple-strength, fatal draught of strychnine, and for the strong evidence, above described, that the baneful substance came from a bottle which had been filled by defendant as he stood at his prescription counter, with strychnine right at hand and no one there to watch what he did. Of course all that was not direct but circumstantial evidence, but such is the only kind of proof available against secret poisoners (see People v. Harris andPeople v. Buchanan, supra; People v. Benham, supra). And it was circumstantial evidence of such quality and quantity as to be "the higher form of evidence" (People v. Place, supra, 157 N Y at p. 594; see People v. DeMartini, 218 N.Y. 561, 566).
4. The County Judge, in his charge, told the jury that a reasonable doubt was not one based "upon a reluctance of a weak-kneed, timid, jellyfish of a juror who is seeking to avoid the performance of a disagreeable duty * * *". That was, of *Page 146 course, rather a free translation of the language of People v.Barker (153 N.Y. 111, 115): "nor is it a mere subterfuge to which resort may be had in order to avoid doing a disagreeable thing". The County Judge's language here was racier and more colorful, but it meant the same thing. Whether the phrasing was fortunate or not, the idea was the thing and "there is no rigid rule as to the manner of doing it" (People v. Hughes,137 N.Y. 29, 40). This was a long and thorough trial. We should not lightly assume that the jurors were so weak of will and judgment as to let their verdict in a capital case be influenced by a single lurid phrase.
The judgment of conviction should be affirmed.
LOUGHRAN, Ch. J., CONWAY, DYE and FULD, JJ., concur with LEWIS, J.; DESMOND, J., dissents in opinion in which THACHER, J., concurs.
Judgment of conviction reversed, etc.