On the fifth day of the trial and during the noon recess, while the district attorney was putting in his proofs in rebuttal, Dr. Flint, a distinguished mental expert, was permitted to examine the defendant without the knowledge of his counsel and in the presence of Dr. McDonald and one other person. Dr. Flint testified: "I examined the defendant, as I said before, between one and two yesterday afternoon in the presence of Dr. McDonald and in the presence of the stenographer and one other person, I think." Under cross-examination Dr. Flint stated: "I was told that I was ordered or authorized to examine the defendant by the court, and that the defendant was brought up for examination. It may have been a court attendant. I do not remember who told me that. * * * *Page 214 I do not know who told me to go there. Some one told me that the defendant was to be brought to a room and I was to examine him."
The fair inference from this and other testimony in the case is that this hasty examination during the noon recess was at the instance of the district attorney and in the presence of a stenographer furnished by him to expedite matters. There was of course no objection to Dr. Flint examining the defendant at the request of the district attorney. It is also clear that the expert was at liberty, after having cautioned the defendant, as he did, that he was not obliged to answer any question asked him unless disposed to do so, as it might be used against him, to have propounded to him such interrogatories as he deemed essential in order to pass upon the question of his condition as to insanity, epilepsy or other mental malady.
This course, in part, the expert pursued, and he was thereafter placed upon the stand and examined by the district attorney at the outset in the usual manner. Dr. Flint stated that he had asked various questions of the defendant, going into detail as to the character of many of them. He was then required to answer two lengthy hypothetical questions, after which he stated his opinion as to the mental condition of the defendant at the time of the homicide. The counsel for the defendant then cross-examined the witness. There had been no departure up to this point from the usual practice in the examination of expert witnesses as laid down by many cases in this court, some of which appear upon the briefs and in the prevailing opinion.
The district attorney then continued his examination of Dr. Flint on the redirect. He held in his hand certain stenographic minutes which the witness testified were a correct transcript of a portion of his examination of the defendant. The defendant's counsel had previously objected and excepted to the entire examination of the defendant by the expert on the ground that it was in violation of the defendant's constitutional rights and an extra judicial examination. The question *Page 215 of objection and exception is of no importance on the present appeal. When the stenographer's minutes were produced as above stated, the defendant's counsel took the additional objection and exception that the conversation with the defendant was not in a form to be produced upon the trial. The district attorney then asked: "Did you ask him the following question and did he so answer as I shall read?" Thereupon for nearly three pages of the printed record the district attorney repeated the above question before reading each question and answer and received an affirmative reply from the witness. These answers, in the main, were highly prejudicial to defendant.
I venture to say that there is no case in this state, or in any jurisdiction under the common law, where such a practice has been sanctioned. It was of course competent, as I have before stated, for the expert to propound such questions to the defendant as he saw fit and base his opinion thereon. It was also proper when the expert was on the stand for counsel upon either side to examine him in detail as to the questions he propounded and the replies elicited. In other words, his memory could be thoroughly searched and tested on direct and cross-examination. The production of pages of stenographic minutes, read to the witness by separate question and answer as stated, is to lead the witness and relieve him from any effort to reproduce his examination of the defendant by the usual act of memory to which witnesses are subjected entirely unassisted by stenographer's minutes. The effect upon the jury of reading the stenographer's minutes in their presence was equivalent to placing the defendant upon the stand and compelling him to testify against himself.
If a portion of the examination made by the expert can be read from the stenographer's minutes, it follows that the entire examination may be embraced in the minutes and so read. It is impossible to draw the line.
It appears that the defendant was destitute of means and counsel was assigned him by the court. His sole defense was insanity or mental unsoundness. He had no money with *Page 216 which to employ experts, and was, consequently, wholly dependent upon such lay witnesses as he could produce capable of testifying as to his mental condition. The homicide in question was either a brutal, motiveless murder, or the act of an irresponsible man; there is no middle ground. I do not mean to intimate that either the distinguished alienist or the learned district attorney were impelled by improper motives, but I insist that the mode of procedure here disclosed was illegal, irregular and highly prejudicial to the rights of the defendant.
I vote for reversal and a new trial.
CULLEN, Ch. J., GRAY, O'BRIEN, WERNER and HISCOCK, JJ., concur with CHASE, J. EDWARD T. BARTLETT, J., reads dissenting opinion.
Judgment of conviction affirmed.