(Dissenting.) I am not able to agree with my brothers, Hogeboom and Gould, that it was not error in allowing the question to be propounded to and answered by Professor Porter. The question was: “In your opinion, can a physician, from a mere, post-mortem, examination of the exterior surface, and the indications of inflammation which he discovers, determine, with any degree of certainty, the precise period of time when such inflammation was caused?” The prisoner’s counsel objected to the inquiry, first, as immaterial and improper; second, as incompetent. The court overruled the objection, and the witness answered in the negative.
It is now said that the specific objections were not taken, either that the opinion of the witness upon the subject matter of the inquiry was not competent evidence, or that the witness had not been shown to be qualified to express an opinion upon such subject matter. In a case of this magnitude, I am not inclined to enforce a technical rule with rigid strictness. It ought not to be that human life should depend, in any degree, upon the skill and adroitness of counsel in stating objections. Although, in the humane spirit of our criminal jurisprudence, we allow a prisoner to be defended by counsel, and oftentimes, as in this case, assign counsel for that purpose, yet the court is not thereby relieved from the responsibility once resting upon it, to see that no objectionable evidence is received to the prejudice of the accused, or that no injury results from the unskilfulness of counsel. Besides, if the objection cannot be obviated, or the testimony made competent by additional proof, the rule does not apply.
There was no evidence that the witness Porter was, or ever had been, a practitioner of medicine, or that he had familiarized himself by study or practice with the mysteries of the healing art. He was a professor of chemistry, but a knowledge *334of chemistry is but one of many qualities that make the physician; and it does not necessarily follow that a chemist is familiar with the structure and properties of the human system.
It is possible, however, that the objection that he was not of the medical profession, might have been obviated by additional proof; but had this been done, if the opinion, even of a physician, was incompetent, it would be covered by the general objection of incompetency. Ho .one will pretend, that unless the opinion asked1 was exclusively upon a scientific subject on which it was important that the jury should be enlightened, that it was material or competent.
The purpose of the interrogatory is obvious from the case. It was not to elicit information on a scientific question beyond the range of ordinary knowledge; but if the witness answered in the negative (as he did), to impress the jury with the conviction that from the imperfect nature of the post-mortem examination, the opinion of Dr. Eheinhart (who had made it), that the irritating matter which caused the death of Hartung must have been taken into the stomach two months before death, was unreliable. It was not the intention to enlighten the jury upon any matter of science with which they were not supposed to have familiarity. The nature and subtlety of arsenic or other poisons1, in the organism of the stomach and oesophagus, were not inquired into; in short, nothing from which it might be inferred by the jury that the mere observance of inflammation on the exterior surface of the parts affected, would not enable the man of science to approximate to the period of time when such inflammation commenced. The witness had been- put in possession of the parts affected immediately after the post-mortem examination, with full opportunity to observe their appearances and the extent of .inflammation ; but it is to be observed, that he was not asked, as an expert, whether, from indications of inflammation that he discovered, he could “determine, with any degree of certainty, the precise period of time when such inflammation was caused.” He had already substantially answered this question, and expressed the opinion that the irritating matter adminis*335tered to the deceased was arsenic, and that death must have ensued within a very few days. Hor was the inquiry, whether a physician, under any circumstances, could determine with proximate accuracy when the inflammation caused by irritating matter taken into the stomach commenced, but whether a physician, from the indications of inflammation which he may discover upon a post-mortem examination of the exterior surface of the stomach, intestines, &c., can determine it. Dr. Rheinhart had been called by the prosecution, and testified that he was a practising physician and surgeon, and had made a, postmortem examination. On his cross-examination, he stated that, in his opinion, the irritating matter which caused the death of Hartung, had been taken into the stomach two months before death. On re-examination by the prosecution, he testified that he was familiar with the appearances produced by arsenic, and that the cause of Hartung’s death was inflammation of the oesophagus and stomach. In answer to a question from the court, he stated that the appearances which he observed could not have been produced by arsenic, administered within three days of the time of the death, and that such appearances were sufficient of themselves to produce death.
Rheinhart’s theory obviously was, that Hartung had died from the administration of a slow poison. This was antagonistic to the theory of the prosecution, which was, that he died from the administration of arsenic by the prisoner, which had been purchased by her within three days of her husband’s death. It had been proved that she purchased arsenic from a druggist in Albany upon a single occasion, which was the Sunday prior to the death,, which occurred on Wednesday.
It had been shown that she attended upon her husband in his last illness.
Professor Porter testified that he had found six grains of arsenic in two-thirds of the stomach of the deceased, and expressed the opinion that Hartung died from the effects of arsenic taken, and from the quantity found, that he could not have lived long; it might have been one day or several days. This proof tended strongly to sustain the theory of the prose*336cution, that the death was occasioned by arsenic, and that the prisoner was a guilty participant in the administration of it. But if any force or effect was to be given by the jury to the opinion and testimony of Bheinhart (though the death may have been occasioned by arsenic), it went far to relieve the prisoner from the crushing weight of the inference to be drawn from the fact that she had purchased arsenic within three days of the death.
This was the strongest and most conclusive circumstance connecting her with the killing. In fact, unless the' jury ber: lieved that arsenic was administered in such quantities as to have produced death within three days, "the evidence would hot have justified her conviction. There was no pretence that she had purchased or procured arsenic at any other time than the Sunday prior to the death. If the irritating matter which had caused Hartung’s death was taken into the stomach two months before dissolution, or if the appearances which Bheinhart observed could not have been produced by arsenic administered within three days of the time of the death, it went far to relieve the case of the strongest circumstance tending to connect the prisoner with the transaction. This evidently was seen by the prosecution, and it was deemed important to discredit the testimony of Bheinhart. Professor Porter was interrogated in respect to the symptoms of poisoning by arsenic, and, although not shown to have ever studied or practised physic, the appearances of death by poison. The examination was allowed to proceed without objection, though, so far as a description of appearances was concerned, it' amounted to nothing. He could not certainly tell whether there would be inflammation of the stomach and the smaller intestines, and he presumed, though he could not speak with certainty, that the oesophagus would be inflamed; yet it is urged now that this examination showed the witness to have been a medical expert. It was then that the objectionable interrogatory was propounded to .him. It was manifestly pointed at Dr. Bheinhart. He had made the post-mortem examination; and in any view other than to discredit his testimony, the inquiry was immaterial and im*337pertinent. The expression of an opinion whether a physician, from the discoveries of inflammation he might make on a post-mortem examination, could or could not determine, with any degree of accuracy, when the inflammation was caused, was entirely irrelevant and foreign to the case on trial, unless pointing to th% post-mortem examination of Rheinhart.
If there had been no post-mortem examination, and Dr. Rheinhart had expressed no opinion as to when the inflammation which he discovered had commmenced, it can scarcely be pretended that there would have been any pertinency or materiality in the inquiry. The interrogatory was, therefore, aimed at Rheinhart, and with no other purpose, that I can conceive, but to discredit his testimony with the jury, not on the ground of his incompetency as a physician, nor on the further ground that it was not within the scope of medical science, by close and skilful examination, to determine when inflammation was caused with proximate accuracy, but on the ground that the imperfect and hasty examination which he had given the subject, did not qualify him to express a reliable opinion as to when the irritating matter, which had caused the inflammation of the oesophagus and stomach, had been administered. In no other light was it at all important. Conceding the witness to have been an expert, it was not necessary for the information of the jury that one expert should be called to express the opinion that another expert, from an imperfect and hasty examination of the surface of the inflamed parts, and from the indications of inflammation which he may discover on such an examination, could not determine, with any degree of certainty, the precise period of time when the inflammation commenced. It required no medical expert to enlighten a jury of unlearned men on this point, nor was it important to a proper determination of the cause of Hartung’s death. It was a fact (if there was any importance attached to it), that the jury were abundantly able to determine for themselves, after being instructed in the constitution and properties of the parts affected, and the nature and properties of the irritating matter administered internally; and above all, it required not the *338skill of an expert to satisfy even an ordinary man that an imperfect and careless examination, even of a skilful and learned physician, would not conduce to accuracy of opinion or judgment.
I am of the opinion that the interrogatory was objectionable for the reasons:
1st. That it called for the opinion of a witness not shown to be a medical expert; and, 2d. That even the opinion of an expert, as to the subject matter of inquiry, was incompetent evidence.
Though the witness may have been, and doubtless was, eminent as a chemist, it did not necessarily follow that he was an anatomist or physiologist; nor are the opinions of experts always competent evidence. Ordinarily, the jury are to find the facts bearing on the issues involved in the case, and form their own opinions and conclusions. Only in cases where, from the nature of the subject, facts disconnected from opinions cannot be so presented as to enable them to pass upon the question with the requisite knowledge and judgment, are persons of skill allowed to give their opinions in evidence. (Jefferson Insurance Company v. Cotheal, 7 Wend., 73.) The opinion of a physician, upon a question not involving medical skill or science, is not admissible evidence; and when the jury, after being put in possession of the facts, can judge equally well with the witness, it is not a case for an expert. (Wooden v. The People, 1 Park. Cr. Rep., 464.) Assuming the inquiry to have been in this case, whether a physician was competent to determine when inflammation commenced, the reasons stated by the witness Porter, ancl upon which he based his opinion, clearly showed that the question put to him was not a scientific one. These reasons were because “ different substances might be used, which would produce more or less quickly, and to a greater or less extent, the inflammation.” The facts there stated would enable the jury to pass upon the question of competency, without the aid of opinion. They were reasons which one intelligent man could understand and appreciate as well as another, and famished the jury with all the knowledge that *339they required to draw the requisite conclusion. Under such circumstances, the aid of the opinion of an expert was not required; and if not, such opinion was inadmissible.
But the interrogatory was restricted to the case of a physician who merely made a post-mortem examination, and relies upon an imperfect and meagre examination of the exterior surfaces of the parts inflamed; and in this view, if the inquiry was a scientific one in part, it was not wholly so. If the capacity generally of the medical profession be the proper subject for the opinion of an expert, the inquiry should not be limited to the case of a physician who exercises his profession under peculiar circumstances, and when the jury are quite as well able as the expert to determine whether such circumstances do or do not conduce to accuracy of opinion or judgment. But the competency of the medical profession, under any circumstances, is not, in my judgment, ever to be determined by the opinions of experts. Opinions are only admissible when the nature of the inquiry involves a question of science or art, or of professional or medical skil], and then only from witnesses skilled in the particular business to which the question relates. This was not a case in which the adage that “ doctors are dangerous ” has any real application.
In Leighton v. Sargent (11 Foster, 119), upon a question made as to the degree of skill possessed by a surgeon, the Supreme Court of New Hampshire held that the opinions of physicians were not competent evidence upon that question, and that opinions are never to be received when it is supposable that jurors can form a correct judgment without the aid of the opinions of others, from the facts being stated to them. Witnesses should never be allowed to usurp the province of the jury, except from necessity. In the present case, the witness was not asked whether 'he, as a physician, could reach any conclusion upon the subject matter of the inquiry, for, as regarded himself, he could speak with positiveness, but, substantially, whether the medical faculty, with full knowledge of the structure of the stomach and other parts affected, and the more or less irritating properties of different poisons, could determine, *340with any degree of certainty, from an examination of the exterior surface of the inflamed parts, when inflammation commenced. Then the witness was asked to sit in judgment on the skill and capacity of the medical faculty in general, and Dr. Eheinhart in particular, for the benefit and information of the jury.. I think it will be difficult to find any precedent for such an inquiry, and I am at a loss for any sound or safe principle on which to rest it. It is begging the question to say that the fact sought to be elicited was one of science bearing on the issues in the case, and without the range of ordinary knowledge, and which the jury were to be supposed incapable of finding without the aid of a professional opinion.
It is urged by the counsel for the defendants in error, that the question and answer, if improper, was really unimportant in the case, and worked no injury to the prisoner. I cannot see the matter in this light, nor do I understand my brethren to question the materiality of the evidence. Professor Porter and Dr. Eheinhart had evidently opposite theories respecting Hartung’s death—the latter, that he died from the slow administration of poison; the former, that his death was caused by administering arsenic in such quantities as to produce death within one, two or three days.
The prosecution seems to have leaned towards both of these theories in the progress of the trial. When Professor Porter came to testify that he had found some six grains of arsenic in two-thirds of the stomach .of the deceased, and that three or four grains had been known to produce death, if the evidence was credited the inference became almost irresistible that the deceased was poisoned by arsenic, and that a sufficient quantity had been administered to produce death in a very brief period of time. If the testimony of Dr. Eheinhart was to be credited (and he was put on the stand as a witness by the prosecution), the appearances which he observed could not have been produced by arsenic administered within three days of the time of the death, but the irritating matter of which the deceased ■died must have been taken into the stomach two months before death. It was not pretended or shown that the prisoner had *341purchased arsenic at any other time than the Sunday prior to the death. This circumstance lost much of its weight if the death was not occasioned by arsenic administered within three days of the time of dissolution. The tendency of Dr. Rheinhart’s testimony, if worth anything, was to relieve the prisoner from the weight of the inference to be drawn from the fact that she had purchased arsenic three days before the death of her husband. The theory was, that the death was effected by the very poison that she had procured at the druggist’s three days previously. If Rheinhart was correct in the opinion which he expressed, the fact that the prisoner purchased arsenic shortly before the death of her husband, lost much of its weight and significance.
The effect of the opinion of Professor Porter was to deprive her of the benefit of the opinion of the physician in her favor. It told the jury, in effect, that the physician was not capable of forming the opinion that he had expressed. At all events, the evidence was calculated to make that impression on the minds of the jury, and it is impossible to say that it did not influence the verdict.
Upon the ground stated, I am in favor of reversing the judgment of the Oyer and Terminer. I think there was error, and it is easily to be seen that the prisoner may have been prejudiced thereby.
There was an application made to the Oyer and Terminer for a new trial, on the ground of irregularity and misconduct of the jury, and the officers attending them. The motion papers show that one of the jurors inquired of a constable in attendance whether the jury could bring in a verdict of manslaughter, stating that if they could do so the whole jury would agree on such a verdict. The constable replied that he thought they could, adding that they had better consult their foreman, who, being a justice of the peace, would probably know. Subsequently, the Revised Statutes were sent for by the jury, and such parts thereof as related to the crimes of murder and manslaughter examined. On Sunday evening (after the jury had been out more than twenty-four hours), one of the jurors for*342warded to the presiding judge a written communication of this tenor: “If the annexed question can be answered in the affirmative, then will you be kind enough to convene the court and answer such question, and receive our verdict, otherwise return this note. 1 Q. If the jurors, after the most careful and laborious investigation, are absolutely unable to find which of the inculpated parties is most guilty, then can a verdict of not guilty be rendered in this case?’” The court was not convened until the next morning, when the jury stood equally divided upon the question of the prisoner’s guilt; and after being told by the presiding judge that he could conceive of no aspect of the testimony in the case that would warrant them in finding any other verdict than guilty or not guilty of the crime with which the accused was charged; and that a verdict of manslaughter would not be sustained by the evidence, they again retired, and returned in a few minutes with a verdict of guilty. During the deliberations of the jury, one or more of the three constables, sworn to attend them, were constantly present in the jury room. TIiq eminent judge who presided in the Oyer and Terminer, well characterized the proceeding on the part of the jury, in consulting with a constable as to the law, and then sending for and examining themselves the provisions of the Revised Statutes in relation to the crimes of murder and manslaughter, as a reprehensible irregularity. The court, however, arrived at the conclusion that no injury had resulted from it to the defendant, and that the verdict had not been affected in the least degree by the impropriety of the jury in seeking to inform themselves as to the law, and finding no other charges of misconduct sustained by proof, denied the motion for a new trial. We are now asked to review this decision. I think that we are without the power to review it. We cannot review the action of a Court of Oyer and Terminer in granting or refusing a new trial on the merits, or on the ground of misconduct of the jury, but are confined to errors of law appearing on the record or in the bill of exceptions. The motion papers in the Oyer and Terminer, I think properly form no part of the record. It is for this reason alone that I refrain *343from discussing the merits of this question. My brethren, think that the motion was properly decided, and very probably it was; but I may say this for myself, that where a jury was shown to be guilty of the glaring misconduct of advising with a constable as to the law of the case, and examining for themselves the statutory provisions relating to the offences of murder and manslaughter, though subsequently instructed by the court as to these matters, I should hesitate long in coming to the conclusion that the accused could not possibly be prejudiced thereby, and hence that such misconduct was insufficient to vitiate the verdict.
Judgment affirmed.