(concurring):
In my opinion the evidence in this case was ample to sustain the verdict of the jury. There is no dispute that the defendant killed the decedent, that the homicide was deliberate and premeditated. The defense was that defendant was insane at the timé she shot decedent, and again that defense is narrowed by the concession that at the time she knew the nature and quality of the act she was doing. This left the issue whether at the time she was laboring under such a defect of reason as not to know that the act was wrong. I think her own evidence of her actions at the time of the homicide is positive proof that she knew that the act was wrong. Her insistence on seeing the deceased alone, her escape by way of the operating room after the shooting, her journey to Manhattan instead of to her home in Brooklyn, her telephone messages, and her subsequent meeting with her father and her husband in the street, the consultation not with medical men but with experienced counsel, and her subsequent surrender two days later by her counsel to the district attorney, all these things are incompatible with the claim that she did not know that she had violated the law. It is impossible to read her statement two days after the killing, made to Judge Lewis, then district attorney, voluntarily, by advice of and in presence of her counsel, who took part in the examination, asking her questions, without the abiding conviction that at the time of the crime she was sane, knew what she was doing and knew that it was wrong. A woman more than twenty-one years of age, engaged in business in Manhattan, maintained illicit relations with deceased, a married man, for four or five years, although she knew and visited his'wife and family. She wanted him to go away with her and to marry her in some other State. He refused and she subsequently married her present husband. She testifies that at the outset of their relations deceased assaulted her, but we have only her story as to the inception of the relations, the dead man cannot tell his story, and she voluntarily continued the relations for four or five years. The jury saw her and heard *464her story, and their verdict seems to me to be in accord with the evidence. Indeed, they dealt mercifully with her, because the evidence would have justified a verdict of murder in the first degree.
My brother Manning has discussed the exceptions urged as grounds for reversal of the judgment. I concur with his conclusions. I do not think that it was error to exclude the questions asked the alienist as to statements made by defendant to him some time after the shooting concerning her history and acts prior to the killing. There was no claim of present insanity, it was not claimed that she was insane at the date of her interview with the alienist, and he was allowed to testify to everything he observed concerning her then physical and mental condition. Her narrative to him of her transactions prior to the commission of the crime was, it'seems to me, hearsay. But all of these alleged transactions were before the jury, testified to by the defendant herself and her witnesses, and were embodied in the hypothetical question propounded to the expert, upon which his opinion was founded, and the jury had the benefit of his opinion. As to the appellant’s criticism and exceptions concerning the remarks of the trial justice and the complaint that his maimer of conducting the trial was prejudicial to the defendant, I have to say: There were some incidents which I think might better not have occurred, some remarks which I think had better not have been made, but out of it all there can be no doubt on examination of the record that the learned justice intended to be absolutely fair and impartial as between the prosecution and the defendant. His charge to the jury was not objected to or excepted to. He placed the responsibility for the verdict squarely on the jury. In my opinion the defendant’s- case was not prejudiced by the rulings of the court or the manner of the trial justice. We are directed by the statute (Code Crim. Proc. § 542) to give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties, and I, therefore, vote to affirm the judgment.