Defendant, convicted of the crime of murder in the first degree, with a recommendation of life imprisonment, has been sentenced to State prison for- the term of his natural life. Although the record in this case leaves little doubt that defendant brutally killed a 10-year-old girl while attempting to rape her, there is a serious question as to whether the conviction should stand in view of the submission to the jury of prejudicial, incompetent evidence.
*303Bince the facts proving the commission of the crime are not substantially questioned on this appeal, it becomes unnecessary to recite the gruesome details of the homicide. Unquestionably, on the basis of the evidence, the jury would have been justified in omitting from their verdict the recommendation that the defendant be imprisoned for the term of his naural life. That the recommendation was made only after inquiry by the jury whether, if made, such recommendation would insure that defendant would, under no circumstances, be released from prison and would die there, indicates that the jury had some reservations as to defendant’s sanity at the time he committed the crime.
The slaying occurred at about 1:00 p.m. on November 24, 1958 and the defendant was apprehended within a few hours thereafter. He was arraigned in the Magistrates ’ Court the following day, after he had made several incriminating statements and had confessed his guilt. The Magistrate committed defendant to Bellevue Hospital for observation in order to determine whether he was in such a state of idiocy, inbecility or insanity as to be incapable of understanding the charge against him or making his defense. (Code Grim. Pro., § 870.) On December 5, 1958—while the examination at Bellevue Hospital was in progress—-the Grand Jury of Bronx County returned an indictment charging him with murder in the first degree. Thereafter, on January 20, 1959, upon completion of the examination of defendant at Bellevue Hospital, a report was transmitted to the court by the psychiatrists (Code Crim. Pro., §§ 662, 870) finding that he was capable of understanding the charge against him and of making his defense. On February 17, 1959, defendant entered a plea of not guilty with a specification of insanity.
Practically the sole contested issue on the trial was the legal insanity of the defendant at the time of the commission of the crime. The defendant testified in his own behalf; and in support of his specification of insanity, called a psychiatrist who testified that in his opinion the defendant was insane at the time of the commission of the crime under the standards of the McNaughton Buie, now incorporated in section .1120 of the Penal Law.
Upon the cross-examination of the defendant, the Assistant District Attorney confronted him with the admissions he had made to the psychiatrists in the course of the examination at Bellevue Hospital pursuant'to the section 870 commitment. The official report of the psychiatrists, transmitted pursuant to section 662 of the Code of Criminal Procedure, contained a sum *304mary of defendant’s answers to questions propounded by the psychiatrists, which answers, among other things, admitted the commission of the crime and gave details thereof. These incriminating answers were also noted in the hospital records, incident to this report, under the dates when made. Both the report of the psychiatrists and the hospital records were used by the People in the cross-examination of defendant’s psychiatrist.
In rebuttal, the People called two psychiatric experts who testified as to defendant’s legal sanity at the time of the commission of the crime. One of these witnesses, Dr. Weiss, was one of the two psychiatrists who had examined defendant pursuant to the commitment under section 870 of the Code of Criminal Procedure and had reported to the court pursuant to section 662. In the course of the examination of Dr. Weiss, the People made repeated reference to the official report and to the entries in the hospital records incidental thereto. The avowed purpose in so utilizing the report and records was to support the People’s contention that if defendant were sane shortly after his arrest, he must have been sane at the time of the homicide. Moreover, in the charge to the jury, the court alluded to the psychiatric examination conducted four days after the homicide.
Section 662 of the Code of Criminal Procedure provides: “ The report of the psychiatrists made pursuant to this section shall not be received in evidence upon the trial of the defendant ”. The use of the official psychiatric report and the hospital records incidental thereto on the trial of the defendant not only violated the express language of section 662, but was contrary to the pervading purpose and spirit of section 658 et seq. of the Code of Criminal Procedure. Consideration by the jury of such incompetent evidence on the issue of defendant’s sanity under section 1120 of the Penal Law was so prejudicial as to result in an unfair trial, and, in the interests of justice, the judgment of conviction should be .reversed and a new trial ordered.
Sections 658 to 662 of the Code of Criminal Procedure provide the procedure to ascertain before final judgment whether a defendant indicted for a felony or a misdemeanor is in such a state of idiocy, imbecility or insanity that he is incapable of understanding the charge, indictment or proceedings or of making his defense. Similar procedures are available to the Court of Special Sessions and the Magistrates’ Court under sections 870 to 875 of the Code of Criminal Procedure. So, too, section 658 permits .a court, upon its own motion, or that of the District Attorney or the defendant, to order a defendant *305to be examined to determine the question of his sanity where a defendant makes a plea of insanity to the indictment. But the distinction must be noted between the sanity which is probed in an examination under section 658, and that which forms the basis for criminal responsibility under section 1120 of the Penal Law. In the former a determination is made as to the ability to understand the nature of the proceedings and to make a defense, while in the latter it is a question of knowing the nature and quality of the act and that it was wrong.
Section 659 provides for the appointment of two psychiatrists by the Director of the Division of Psychiatry of the Department of Hospitals. The examiners are authorized to interrogate not only the defendant, but also witnesses whose attendance may be compelled.
The obvious import of section 658 el seq. of the Code of Criminal Procedure is to make available to a court a method to determine whether further proceedings in a pending prosecution should be stayed because of a defendant’s mental condition. From the involuntary nature of the proceedings, it would clearly follow that any incriminating statements or admissions made by a defendant in the course of such an examination, if offered by the People at a trial, would properly be subject to an objection of testimonial compulsion. When we consider the procedures under a section 658 examination, the People can, in no event, avail themselves of any of the statements made in the course of such examination as evidence-in-chief in any prosecution. As already noted hereinabove, section 662 expressly makes the transmitted report of the psychiatrists inadmissible in evidence upon the trial of the defendant.
In People v. Draper (278 App. Div. 298, affd. 303 N. Y. 653) a conviction was reversed because the prosecution was permitted to place before the jury the findings of the psychiatrists appointed under section 658. Similarly, in People v. Colavecchio (11 A D 2d 161) the court, per Bastow, J., declared that not only was the report of the psychiatrists inadmissible under section 662 of the Code of Criminal Procedure, but that the statute could not be circumvented by having the psychiatrists testify to the contents of the report. However, in both cases the court indicated that the hospital record, incidental to the report, could be offered by the defendant. In ColaveccMo it was specifically held that the defendant would have the right to use the testimony of the psychiatrist who had examined the patient to show lack of specific intent to commit the crime charged.
*306The- statute does not specifically prohibit a psychiatrist, who has made a section 658 examination from testifying at a trial as an expert as to.a' defendant’s criminal responsibility. However, in People v. Butchino ( 13 A D 2d 183, 185), the court stated, per Bebgan,’ P. J.: ‘ ‘ Although the examination as a witness on the trial of a psychiatrist who made a section 658 examination is not prohibited by statute, if it is done it should be under carefully prescribed conditions and ordinarily be avoided if there is available to the People alternative medical proof, in view of the fact that the official report of such a physician is expressly by statute made inadmissible on the trial.” Irrespective of any privilege-of the People to call Dr. Weiss as a witness on the trial of the defendant — and I am of the opinion that no such privilege existed — the fact remains that he was so called and did testify as to defendant’s criminal responsibility. But added to the questionable use by the People of Dr. Weiss as an expert, was his prejudicial testimony as to the contents of the report transmitted on the section 870 examination of the defendant and as to the notes of this examiner made in the hospital records incidental to the examination. What is more, Dr. Weiss was permitted to express an opinion as to defendant’s legal sanity at the time of the commission of the crime predicated on the report and the records made incidental thereto. All of this constituted reversible error. (People v. Draper, supra; People v. Colavecchio, supra;' People v. Samuels, 302 N. Y. 163; Code Crim. Pro., § 662.)
An examination of the hospital records incidental to the defendant’s section 870 commitment reveals that he was extensively questioned by a team of psychiatrists at different times. The notes also show that his mother, his sister, and his wife were examined and the answers they gave also entered. -The records also indicate that the defendant was administered sodium amytal—a so-called “ truth drug ”—on 14 days of his stay there. When we consider that the defendant was involuntarily committed by the Magistrate (no counsel present) for the purpose of this examination, the conclusion is inescapable that the use by the People of any incriminating statements made by the defendant in the course of such an examination violated the defendant’s constitutional rights. The fact that he made incriminating admissions, and confirmed his guilt prior to his commitment, can nowise condone the use of this hospital record. "- - " . "
The defendant was entitled to have the question of his sanity submitted to the jury for determination, free of the - official *307report of the hospital, the records incidental thereto and of the testimony, of the examining psychiatrist. The failure to so submit the case resulted in an unfair trial.
Additionally, the People should not have been permitted to argue to the jury that because the defendant was not in such a state of idiocy, imbecility or insanity as to be unable to prepare his case that he must have been legally sane at the time of the' commission of the crime. Section 658 of the Code of Criminal Procedure and section 1120 of the Penal Law contemplate different norms. Capacity to understand the nature of the charge and to defend is no proof that the defendant knew the nature and quality of his act and that it was wrong. Under section 1120 of the Penal Law, a defendant is not excused from criminal liability because he was an idiot, imbecile or insane person if the People are able to prove that at the time of the commission of the crime he knew the nature and quality of his act and that it was wrong.
The People attempt to justify the use of the report and the hospital records incidental thereto because of the offer and receipt in evidence of defendant’s Exhibit I, the Bellevue Hospital record concerning the defendant. This record was offered by defense counsel in support of the specification of insanity. Prior to the defendant’s commitment to Bellevue Hospital under section 870, the defendant had an institutionalization experience that began when he was seven years of age and lasted almost ■continuously thereafter until his release from Kings Park State Hospital on October 22, 1950. During this period he was at Hawthorne, Cedar Knolls School from August 31, 1943 to April 1, 1948; in Bellevue Hospital by court order on three different occasions apart from the section 870 commitment; the Children’s Shelter, Edenwald School and Kings Park State Hospital from which he was. discharged on October 22, 1951 with a final diagnosis of “ Dementia Praecox: Childhood Schizophrenia.”
Defendant’s Exhibit ! consisted of the records of the defendant’s stay at Bellevue Hospital on the three occasions prior to the section 870 commitment. It also contains the hospital record incident to the section 870 commitment and a copy of the official report of the psychiatrist.*
• The majority of this court agree with the contention- of the People that, the defendant’s Exhibit I was offered without limitation-by the defense and that the People therefore were entitled to use any part of it. This, however, would not justify *308the use by the People of the official report of the psychiatrist which is interdicted by section 662 of the Code of Criminal Procedure (People v. Draper, supra; People v. Colavecchio, supra).*
As I read this record, there is considerable doubt as to whether the defendant intended to offer as part of defendant’s Exhibit I the Bellevue Hospital record incident to the section 870 examination. Defense counsel offered the Bellevue Hospital records in evidence and used the following language: “ I offer in evidence records of Bellevue Hospital of the defendant Jerry Both.” There followed a discussion between court and counsel. The District Attorney stated that it was his understanding that everything in the record was going to be permitted. The court replied, “I don’t Imow yet. The record has been marked in evidence. I have no way of deleting parts of that. It. is impossible.” After the District Attorney explained why he made no objection, the court stated: “ No, I’ll permit this statement to go in. As they arise I’ll rule on them.” The District Attorney then proceeded to use the section 870 report (a copy of which was improperly part of the hospital record) and other parts of the record incident to that commitment. The defense attorney’s prompt and proper objections to each and every use thereof were overruled.
On balance, I would say that the record leaves considerable doubt as to the scope and meaning of the court’s ruling and, this being a capital case, I would resolve that doubt in favor of the defendant.
Even if it be that the defense did offer the section 870 hospital record, nevertheless timely objection was made when the People attempted to use it. That objection, in the interest of justice, should have been sustained. Everything in that record was damaging to the defendant and, if his counsel inadvertently offered it, the defendant should not have been penalized by permitting it to be used in the face of a timely objection. The trial of a criminal case is not like a chess game where once a chessman has been moved, and the hand lifted away, the move is irrevocable. Assuming that defense counsel did offer the hospital record, incident to the section 870 examination, the fact remains he realized his mistake in time and, as the People were about to act on it, he objected. The court was not without power to prevent its use and, in the interest of justice and of a fair trial, the defense’s objection should have been sustained.
*309To recapitulate then, the submission to the jury of the official report of the psychiatrist and the hospital records incidental thereto, to be considered in their deliberation as to defendant’s criminal responsibility, was prejudicial error and resulted in an unfair trial. The error affected substantial rights of the defendant and may not be disregarded.
In the language of People v. Ochs (3 N Y 2d 54, 57) per Froessel, J., the error is one that: “ tends to blur an important issue and prevent a proper consideration thereof by the jury, or which may have misled the jury and influenced them in reaching their verdict * * * and may not be disregarded even though the evidence may convince us of the defendant’s guilt [cases cited].”
Whatever we may think of his connection with the crime, defendant was entitled to a fair trial according to law. (People v. Mleczko, 298 N. Y. 153, 163.)
I would therefore reverse the conviction and grant a new trial.
Botein, P. J., Stevens and Bergan, JJ., concur with Eager, J., Várente, J., dissents in opinion.
Judgment of conviction affirmed.
Section 662 makes no provision for incorporating a copy of the report into the hospital record of the examinations.
From the language of section 662, it is questionable if even the defendant can ]ise £he report at the trial of an action.