evidence to give such weight as he should in his own mind determine it was entitled to, and substantially allowed him to usurp the functions of the jury in deciding the questions of fact.

We think it is not competent in any case to predicate a hypothetical Rule

question to an expert upon all of the evidence in the case, whether he has heard it all or not, upon the assumption that he then recollects it, for it would then be impossible for the jury to determine the facts upon which the witness bases his opinion, and whether such facts were proved or not. Suppose the jury concluded that certain facts are not proved, how are they, in such an event, to determine whether the opinion is not, to a great degree, based upon such facts? When specific facts, either proved or assumed to have been proved, are embraced in the question the jury are enabled to determine whether the answer to such question is based upon facts which have been proved in the case or not, and whether other facts bearing upon the correctness and force of the answer are contained therein, or have been omitted from it; but in the absence of such a question the evidence must always be, to a certain extent, uncertain, unintelligible, and, perhaps, misleading.

We regret that an error of this character is found in a case which was otherwise tried by the learned Court with an intelligent understanding of and adherence to the rules of law applicable to the case, and a strict regard to the rights of the accused; but, in compliance with the uniform practice of Courts in capital cases to avoid even the possibility of injustice to the accused, we think the error referred to requires a new trial. All concur. Judgment reversed.

194. PEOPLE v. FABER

COURT OF APPEALS OF NEW YORK. 1910

199 N. Y. 256; 92 N. E. 675

Reasin's

APPEAL from a judgment of the Supreme Court, rendered July 10, 1909, at a Trial Term for the county of Warren, upon a verdict convicting the defendant of the crime of murder in the first degree.

J. Edward Singleton, for appellant. The expert witnesses sworn on behalf of the People were erroneously allowed to express their opinions as to the sanity of defendant without first giving the facts on which the opinion was based. . . .

John H. Cunningham, for respondent. . . . It is not legal error to permit a medical expert, who has made a personal examination of a person for the purpose of determining his mental condition, to give an opinion as to that condition at the time of the examination without, in the first instance, disclosing the particular facts upon which the opinion. is based. ...

CHASE, J.

The defendant has been convicted of the crime of murder in the first degree. It is not denied that he shot and killed Maude

Bumps, otherwise known as Maude Ryan. It is contended on behalf of the defendant that the evidence of premeditation and deliberation is not sufficient to sustain the judgment rendered, and it is also contended in his behalf that the defendant at the time of the commission of the act was laboring under such a defect of reason as not to know the nature and quality of the act he was doing, or that the act was wrong.

We have fully examined the record and are of the opinion that the judgment should not be reversed as a matter of fact, but that the trial judge erred in his charge in relation to the duties of jurors. . . .

It is unnecessary to consider the other alleged errors claimed in behalf of the defendant, as the questions so presented may not arise upon a new trial, except as to the contention of the defendant that the Court erred in allowing the admission of certain opinions as to the defendant's sanity which were given by physicians who are skilled and experienced alienists, without requiring the prosecution to first disclose the personal conversations, observations and examinations upon which such experts severally based their opinions. . . . We will consider such rulings now, that the trial Court may have the opinion of this Court in regard thereto upon the new trial.

In the early history of the Courts of England mere opinion evidence was wholly rejected. The admission of opinions as evidence by persons specially qualified by skill and experience to speak as experts has been a matter of development both in England and in this country. The history of the admission of such evidence with illustrations from decisions of the Courts is given by Wigmore in his exhaustive work on Evidence, and in connection therewith he refers to the practice of admitting opinion evidence by experts based upon observation, and concludes that evidence by experts of conceded skill and experience may be received when based upon the observation of the witness without in the first instance necessarily requiring that the facts observed be stated to the Court and jury. In connection with his discussion of the question as to the admissibility of opinion evidence and of the early opposition to the admission of such evidence in any case, he says:

"It has already been seen in reviewing the history of the doctrine, that in the beginning the disparagement of opinion rested on grounds totally different from those now received. It was objected to because as a mere guess, the belief of one having no good grounds, it lacked the testimonial qualification of observation; hence, a mere opinion, as soon as it appeared to be such, must be rejected. In a few jurisdictions the modern doctrine has been confused with the earlier one, and it is laid down as a general rule that opinions must be accompanied with the facts on which they are based usually with the exception that expert witnesses are exempted from this rule.

Now, in no respect is this rule sound. In the first place, then, there is no principle and no orthodox practice which requires a witness having personal observation to state in advance his observed data before he states his inferences from them; all that needs to appear in advance is that he had an opportunity to observe and did observe, whereupon it is proper for him to state his conclusions,

leaving the detailed grounds to be drawn out on cross-examination, Any other rule cumbers seriously the examination, and amounts in effect to changing substantially the whole examination into a voir dire - an innovation on established methods which is unwarranted by policy." (§ 1922.)

He further says:

"All opinions or conclusions are in a sense hypothetical. But does it follow that, when the opinion comes from the same witness who has learned the premises by actual observation those premises must be stated beforehand, hypothetically or otherwise, by him or to him? For example, the physician is asked, 'Did you examine the body?' 'Yes.' 'State your opinion of the cause of death.' Is it here necessary that he should first state in detail the facts of his personal observation, as premises, before he can give his opinion? In academic nicety, yes; practically, no; and for the simple reason that on cross-examination each and every detail of the appearances he observed will be brought out and thus associated with his general conclusion as the grounds for it, and the tribunal will understand that the rejection of these data will destroy the validity of his opinion. In the opposite case, where the witness has not had personal observation of the premises, they are not to be got from him on cross-examination, because he had 2 no data of personal observation; and that is precisely the reason why they must be indicated and set out in the question to him, for thus only can the premises be clearly associated with the conclusion based upon them. Through failure to perceive this limitation, courts have sometimes sanctioned the requirement of an advance hypothetical statement even where the expert witness speaks from personal observation." (§ 675.)

There is a great difference in the decisions of the Courts of the States upon this subject, but it seems unnecessary to consider such authorities other than those of this State. We are in accord with the conclusions reached by Mr. Wigmore in his work on Evidence; and such conclusion is in accord with the weight of authority in this State. In People v. Youngs, 151 N. Y. 210, the question was directly before this Court, and its determination was essential to the disposition of the appeal. Evidence of the opinions of experts was received in that case without first requiring that the observations upon which such opinions were based be given in evidence. The judgment appealed from, by which the defendant had been sentenced to death, was affirmed, and this Court said: . . .

"It may be true that the Court in the exercise of a sound discretion may require the witness to state the facts before expressing the opinion; and in all cases the opposite party has the right to elicit the facts upon cross-examination. But the precise question here is whether the Court committed an error in permitting the witness to give the opinion before the facts upon which it was founded were all disclosed. And we think that when it is shown that a medical expert has made the proper professional examination of the patient in order to ascertain the existence of some physical or mental disease he is then qualified to express an opinion on the subject, though he may not yet have stated the scientific facts or external symptoms upon which it is based. People v. Kemmler, 119 N. Y. 580; People v. Taylor, 138 N. Y. 398; People v. Hoch, 150 N. Y. 291.)" (p. 218.) ..

A witness to a will, although a non-expert, may testify to the competency of the testator to make a will. In common practice in the Courts a physician who has examined a patient is allowed to testify directly as to the disease from which the patient is suffering. There seems to be no good reason for requiring a physician to specify in detail his observations before expressing an opinion as to the sanity or insanity of a person examined by him any more than he should be required to recount such observations in advance of expressing an opinion as to whether a person had typhoid fever or was suffering from an epileptic fit. . . .

The trial Court did not err in allowing the physicians to express their opinions in regard to the sanity of the defendant without previously stating in detail the observations upon which the opinions were based. For the reasons stated the judgment of conviction should be reversed and a new trial granted.

CULLEN, Ch. J., HAIGHT, WILLARD BARTLETT and HISCOCK, JJ., concur; GRAY, J., absent.

Judgment of conviction reversed, etc.

ใน

519 913

Topic 2. Rules Limiting Impeachment of Witnesses

SUB-TOPIC A. GENERAL CHARACTER TRAITS 1

196. LORD CHANCELLOR MACCLESFIELD'S TRIAL. (1725. Howell's State Trials, XVI, 1239). Common Serjeant: We desire that Mr. Price may give your Lordships an account of what he knows of the character of [the witness] Mr. Cothingham and how long he hath known him.

Mr. Price. My lords, I have known him upwards of twenty years; I never knew anybody say anything amiss of him. . . . I know no man in his place behaved himself better than he hath done.

Common Serjeant.

We desire to ask not only to what Mr. Price's opinion is, but to what is the opinion of others, as to his general character. Mr. Price. I believe, if you ask his character of an hundred people, ninety of them will give him rather a greater character.

197. REX v. WATSON. (1817. 32 How. St. Tr. 1, 495, 2 Stark. 154). ABBOTT, J. The usual question put for the purpose of discrediting the testimony of a witness is, Would you believe that witness upon his oath? .....

BAYLEY, J.-The witnesses may state that he is not a man to be believed upon his oath,

James Lawson sworn. - Examined by Mr. Wetherell. Q.-Do you know a person of the name of John Heyward, alleged to abide at No. 6, Stangate-wall, Lambeth, in the county of Surrey, stock-broker? A.-I know the person you allude to. Q. How many years have you known him? A. Upwards of ten years; in fact, I have known him from a boy. Q.-Would you believe him

1 For the principles of Logic and Psychology applicable to this topic, see the present Compiler's "Principles of Proof" (1913. Nos. 196-202.)

upon his oath; or in your judgment, is he a person to be believed upon his oath? A. — I believe not; I would not believe him upon his oath. Q. - You would not; and you believe he is not a person to be believed upon his oath? A. - I do.

198. STATE v. RANDOLPH

SUPREME COURT OF ERRORS OF CONNECTICUT. 1856

24 Conn. 363

ELLSWORTH, J. . . . Another subject has been discussed, respecting which there is a diversity in the practice of the Courts of justice. We mean, the proper question to be put to a witness who is called to impeach the character of another witness.

One thing, however, is obvious, that in all Courts, whatever be the form or extent of the inquiry, the thing aimed at is one and the same, the character of the witness for truth; and where the question assumes a more general form, it is allowed only for its supposed bearing on the truthfulness, or the reverse, of the witness. His character for truth is all that is pertinent and material to the point, and all that the jury should inquire after; other facts, other offences, tried or untried, not being crimen falsi, have no bearing upon the inquiry whatever, and should not be brought into the case.

In the English Courts, the inquiry is in this form: "Are you acquainted with the character of the witness? — What is his general character? Would you believe him under oath?' As a general rule of practice this has been found satisfactory in that country and elsewhere; and doubtless would be so here, if our Courts had not, at an early period, adopted a different rule, which has proved to be satisfactory and sufficient, and which we are not willing, at this late day, to abandon for another, certainly not better, if as good. The more general inquiry in England is adopted, as we have said, to learn the witness' character for truth; ours is adopted for the same purpose, but is more single and direct. In our Courts, the inquiry put is: "Is the character of the witness for truth on a par with that of mankind in general?"

The English rule has this advantage, that it brings the general character of the witness before the triers, which is important, where the witness has not acquired a specific character on the subject of truth, and hence it is urged, with some force, that in such a case, the general inquiry is essential, for no other will reach the case; and further, that the testimony of the impeaching witness that, from his acquaintance with the witness' character, he would, or would not, believe the witness under oath, will throw light on the credit and standing of the witness. We do not deny that there is much good sense in this course of reasoning. But on the other hand, our rule, proceeding upon the same idea, goes to the question of truth at once, nor does it leave anything to the mere inference