(dissenting). The facts in this case are accurately stated in the opinion of Mr. Justice Callahan and there is no necessity for their repetition here.
I am convinced that the judgment of conviction should be reversed and that appellant should be accorded a new trial.
Appellant returned to his home at about 7:30 p.m. on March 13,1949, in a state of intoxication. He quarreled with his wife, assaulted her and demolished various household articles with a bayonet. On the trial his wife was called as a witness for the prosecution and she testified that while brandishing the bayonet he said: “ I am going to kill. I am going to kill everybody. I’m going to kill any * * * person I see.” This testimony was given over appellant’s objection and exception.
After making these statements appellant left the apartment and returned later. I agree with Justice Callahan that the statements which he made to his wife upon his return in the presence of a third person were neither privileged nor confidential.
At common law the wife of the prisoner was not a competent witness in a criminal proceeding instituted against him. The common-law rule that a husband and wife cannot be witnesses for or against each other has been modified by section 2445 of the Penal Law. That section makes a husband or wife of a person indicted or accused of crime in all cases a competent witness, but “ neither husband nor wife can be compelled to disclose a confidential communication, made by one to the other during their marriage.” (Italics supplied.)
The statute does not leave the matter of disclosing a confidential communication to the witness but the other spouse may object to any such communication and upon objection being made the witness not only cannot be compelled but has no right to make the disclosure (People v. Wood, 126 N. Y. 249).
The wife’s testimony in my opinion was clearly incompetent (People v. Daghita, 299 N. Y. 194).
It seems to me that the court erred in its charge on the subject of intoxication. At the conclusion of the charge appellant’s counsel made the following request: “ Now, on the subject of intoxication Tour Honor. I ask Tour Honor to charge the jury that if they find that the defendant was so intoxicated as to be *200incapable of forming an intent to kill that they cannot find him guilty, either of murder in the first, or murder in the second, degree.” I think the court was justified in not granting this request. The court stated that it had already covered the subject in the main charge. Appellant’s counsel then stated: “ Tour Honor referred to murder in the first degree.” The court then said: “ Murder in the first degree, they have to find that he had the ability to premeditate and deliberate on his act, but had an intent to kill. Intoxication would not excuse an intent to kill. A drunken man can form an intent to kill.”
It is for the jury to determine the extent of the intoxication and whether it had the effect to prevent the necessary intent, deliberation and premeditation (People v. Leonardi, 143 N. Y. 360; People v. Van Zandt, 224 N. Y. 354).
The statement of the court that “ A drunken man can form an intent to kill ” took from the jury the very question which it had to decide and in my judgment constitutes serious prejudicial error. (Italics supplied.)
On the argument and in his brief the prosecutor has argued that the evidence establishes that appellant is guilty. That argument has no persuasive force with me. All we know or can know is that a jury by its verdict has so found. Our only duty is to determine whether that verdict is tainted with legal error and, if so, it is our solemn duty to set it aside.
Peck, P. J., and Cohn, J., concur with Callahan, J.; Van Voorhis, J., concurs in result in opinion; Heeeernan, J., dissents and votes to reverse, in opinion.
Judgment affirmed.