(dissenting):
I dissent. I think error was committed by the learned trial justice in two respects. The first involves what seems to me an expression of opinion by him indicating that the defendant was neither truthful nor candid, a view that was extremely detrimental *465to her. The issue of insanity, even if regarded in the light most favorable to the prosecution, was clearly one of fact. It was not, in my opinion, a defense lightly to be cast aside, nor to be regarded, in advance of the verdict, to use a colloquial expression, as “ cooked up.” But, whether that be so, or not, the defendant was entitled to an absolutely fair and impartial trial of this, to her, most important issue; and any attitude of the trial court which might tend either to belittle her in the eyes of the jury, or to reflect upon her integrity, should not be passed by as presenting immaterial or technical error. Commencing with the point where defendant was about to state what her thoughts were and how she felt when she got to the decedent’s room just prior to the shooting, the court interrupted, saying to her: “If you want the jury to hear your story, you had better talk to them, instead of whining about it.” Later, the court asked defendant why she did not answer her lawyer’s questions, and when she replied, “ I didn’t hear,” there was a retort by the eourt, “ Oh, yes, you did.” Again, when defendant was being interrogated whether she cried when under examination by Dr. Meagher, the People’s expert, the record shows: “ By the Court: Well, you are not crying now, are you? Are you crying now? A. Yes, sir. Q. That is what you call crying, is it? No tears, are there? A. Yes, there are tears.”
Possibly, we might disregard these incidents if it were not for later occurrences.
When Dr. Kirby, for the defendant, was under examination, we find the following: “By the Court: Q. You several times referred to the defendant as weeping or having wept while you were making examinations. What do you mean by her weeping? A. Crying, shedding tears. Q. Does that mean shedding tears? A. Yes, sir. Q. It doesn’t mean whining as she is doing here in this trialf A. No, sir. Mr. Conway: I object to that statement by the Court and I take exception to it. By the Court: Q. You have heard her whine, haven’t you? A. Yes. Q. I don’t know what you call it. Do you call it whining? Mr. Conway: I take the same exception. A. A moan. By the Court: Q. A moan or whine? A. Yes. Mr. Conway: I take the same exception. By the Court: Q. She has been doing it during your examination and you have heard it? A. In court? Q. Yes, in court, not in jail. A. No, I didn’t hear the moan. Mr. Conway: I take the same exception to each of your Honor’s remarks. The Court: I made no remarks; I asked questions. If you take an exception, then it is perfectly proper. Mr. Conway: I take an exception to each of your Honor’s questions and to what I thought were remarks.”
*466As I read the foregoing excerpts from the record, I am constrained to say that the attitude of the court was tantamount to a denunciation of the defendant as a malingerer, and that what occurred was calculated to convey to the jury the court’s opinion that the defendant was endeavoring to deceive them, and was pretending emotion. It seems to me difficult to entertain any implication from what occurred other than that the trial court expressed his opinion that the defendant was falsifying emotion. And if this be so, the jury must also have entertained the view that if she attempted to deceive them she must likewise have attempted to deceive the various doctors who examined her, and that no reliance could be placed upon their testimony based, as it largely was, upon their examinations of the defendant. In this respect, I think the trial cannot be characterized as fair to the defendant.
Second. As to the exclusion of the symptoms, as expressed by the defendant to the examining physicians: The rulings repeatedly made were that the doctors were not to tell what the defendant said to them. These statements were obviously those upon which the physicians based their opinions to a material extent. They were not narratives of past events. They were symptoms of a condition existing at the time of the shooting and which persisted at the periods of the examinations. I think the rulings were erroneous. I do not understand the law to be that an expert witness may not state facts, even though they involve expressions made to him by the defendant while under observation or examination, if his opinion of the defendant’s sanity or insanity is based thereon.
It is thought by some of my associates that as the hypothetical question put to the doctors contained the substance of the'excluded expressions, the rulings ehminating the defendant’s statements to the doctors and which they regarded as symptomatic, were harmless. It seems to me clear enough that if.important factors contained in a hypothetical question are not allowed in evidence the question even though it contained the excluded matter is of no value to the party. From the record, as it unfolds itself to me, the jury may well have concluded that the court was excluding practically all complaints, or symptoms, described by the defendant to her doctors, thus leaving nothing but a barren opinion by them without an intelligence of the facts upon which such opinion was based. But, whatever may have been the jury’s view, I am of opinion that the rulings excluding what the defendant said to the physicians, and upon which they based their opinions of her insanity, were erroneous.
Judgment of conviction affirmed.