dissenting.
My understanding of the evidence and of the law applicable thereto is radically different from that' of the majority. Defendant shot and killed his brother, October 3, 1911. This fact cannot be successfully controverted, and there is no attempt to do so. Unless the jury could have found from the evidence that defendant, at the time of the homicide, was insane Avithin the meaning of the criminal law, there Avas no justification whatever for a verdict of acquittal. After defendant had adduced testimony tending to sIioav he was insane, the state called in rebuttal Dr. Hildreth, who ansAvered a question as follows: “I saw nothing to indicate to me but what he was competent and sane.” The refusal of the trial court to strike this answer out of the record on motion of defendant is, according to the opinion, an error; and a reason given for setting aside the verdict of the jury is as fol*38lows: “This evidence we think was incompetent, and was plainly very prejudicial to the defendant.” The majority neither hold that the answer quoted was incompetent, nor that Dr. Hildreth was an incompetent witness, because his testimony violated the statute forbidding the disclosure of privileged communications. In testing the competency of his answer from the standpoint of the majority, therefore, his professional capacity must be considered in connection with other proofs. The following facts are proved: Dr. Hildreth was a graduate of Bush Medical College, Chicago. He was a duly licensed physician. He had been practicing his profession in- the vicinity of the homicide for 31 years. He had known defendant about 15 years, 'and had been fairly well acquainted with him for 5 years; saw him a great deal not in a professional way — possibly three or four times a month. Saw him in town; saw him frequently when he was not attending him professionally. In a room adjoining Dr. Hildreth’s office an inquest was held the day of the homicide. Defendant was there. For two hours he was closely observed by Dr. Hildreth, who heard him talking and ansAvering questions, and observed the tone of his voice and his manner of speech. Dr. Hildreth testified, in substance, that he observed defendant’s general conditions, and he told what they were, and that he had heard a conversation between defendant and his Avife, and he stated, the substance of it. Later in his examination the AAdtness was asked: “You can separate the conclusions Avhicli you drew from your professional calls on him, and from knoAAvledge which you had of him, and acquaintance with him formed outside of your professional calls, and your observations that day? You can give an opinion on that alone?” The answer was : “I can.” He Avas also asked : “Doctor, based on your observations and your conversations and the different matters that you have detailed here that took place- and which you have stated here which took place other than in a professional way, I Avill ask you, in your opinion, whether or not the defendant on that 3d day of October, 1911 — what his con*39dition was as to being sane or insane?” The question was answered: “I saw nothing to indicate to me but what he was competent and sane.” The clear import of the testimony of Dr. Hildreth is that an opinion as to defendant’s sanity urns forced upon him by observed conditions and facts. The record, therefore, answers the question: “Why would he ‘have to have an opinion’ ” ? When the existing facts and conditions were impressed on his mind by observations, the mental, operations resulting in the opinion that nothing was disclosed to indicate insanity Avere neither unnatural nor suspicious. The testimony condemned by the majority, if considered as the evidence of a nonexpert witness, is clearly competent, unless a former opinion of this court is overruled. In re Estate of Wilson, 78 Neb. 758. Considered as expert evidence of a physician not disqualified as a witness, the testimony criticised by the majority is competent under well-established rules. The contrary holding, under the facts as they exist, will, in my opinion, introduce into the criminal law of the state a new technicality which will prove to be confusing to the courts as well as dangerous to society. I do not think any sufficient reason for setting aside the judgment has been suggested in the ojnnion of the majority.