People v. Thurston , 2 Park. Cr. 49 ( 1852 )

Crippen, J.

Nancy Thurston, a witness in behalf of the prisoner, on her cross-examination by the counsel for the people, testified that the prisoner became attached to a lady while she was staying at the house of his father, and it was reported that she became pregnant at that time and during her stay there. The counsel for the people then asked the witness, whether she did not know that the prisoner was charged with it? (the prostitution of said female.) The prisoner’s counsel objected to the question. The court overruled the objection and the witness answered, she did not know it when the lady left her father’s. The counsel for the people then asked the witness how long it was after she left before witness had any information about it? This question was also objected to by the prisoner’s counsel; the court overruled the objection, and the witness answered, that she heard of it in a few days This testimony was intended to, and went, to prove that the prisoner had been charged with the immorality of prostituting a female while she was an inmate in his father’s house, who was a near relative of his father’s present wife. I am unable to discover upon what principle the learned judge admitted the above testimony. The prisoner was on trial upon an indictment for the highest crime with which a human being can be charged; he was called upon to defend that charge and nothing more. His conduct in respect to the subject matter inquired of by the counsel for the people was foreign to the charge made against the prisoner; it had no connection therewith.

Although much latitude may be allowed in the cross-examination of witnesses, still, the witness in her direct examination had testified to nothing opening the door to the counsel for the people, to digress so far from the legitimate and important matter involved in the trial as- to allow the inquiries to be made of the witness, relating to specific and particular acts of immorality of the prisoner which had no connection with the main charge made against him, The general character and life of the prisoner under some circumstances might be the subject of inquiry, yet, I am not. aware of any rule of evidence which authorized the prosecution to raise collateral issues upon specific charges against the moral character of the prisoner, having no connection with the crime imputed to him in the indictment.

It is not for the court to speculate upon the question whether the evidence could or did probably have any influence upon the minds of the jurors; of this the court can not judge; no human tr ibunal can determine with safety, or undertake to form an opinion, of the impression which the testimony made upon the jury. Its object and tendency must have been to prove to the jury that the prisoner had been a man of loose moral character, destitute of those high and noble qualities of honor and morality that always adorn the character of the upright and virtuous, and therefore the impression might be produced or fairly indulged that he would be more likely to commit the crime of murdey than he otherwise would have been. It opened the door for the remarks of counsel to the jury which might make, a strong impression upon their minds highly unfavorable to the prisoner.

The counsel for the prosecution insisted that the testimony was admissible on the ground that much evidence had previously been given on the part of the prisoner, tending to establish that his conduct had been marked with irregularity; that he had been depressed in spirits, uneasy and sleepless, &c., therefore, the evidence was competent, in order to prove that the prisoner’s attachment to the young lady and the charge made against him of seducing her were sufficient reasons for his irregular and singular conduct.

I do not subscribe to the soundness of this proposition or think that it affords a sufficient ground for admitting the testimony. It falls far short of meeting the principal ground of objection. The direct tendency of the evidence was .to establish a destitution of moral principle on the .part of the prisoner; a blot and stain upon his character; a wicked and corrupt heart, regardless of those restraints which all men of correct and just views always possess, all of which was eminently calculated to lead the jury to a conclusion that the prisoner's peculiarities, his want of rectitude and moral restraints, rendered him more likely to commit the offence charged than, he otherwise would have been. In a case of so much importance, where the life of a human being is at stake, we do not feel authorized to allow any testimony to be given to the jury which is not clearly legal and proper, where it may by possibility influence the result to the detriment of the prisoner.

Without examining other important questions raised upon the trial and on the argument of the case, I am satisfied that a new trial should be granted for the reasons above stated.

Justice Mason concurred.

Justice Gkay took no part in the decision.

Shankland, J.,

delivered the following opinion:—The motion for a new trial on the bill of exceptions, taken in this cause, has engaged the careful attention of this court for several terms, and although the court are unanimoúsiy of opinion that a new trial must be granted for errors occurring on the trial of the prisoner, we do not fully concur in placing it upon the same alleged error. A majority of my brethren concur in the opinion that it was error in the Oyer and Terminer to permit evidence to prove the prisoner to have been charged with seducing a lady who boarded at his mother’s, upon the ground that it tended to prejudice him in the minds of the jury. I shall not dissent from that opinion, for the reason that I have not examined the question with sufficient care to assent or dissent. I place my opinion in favor of a new trial upon other, and to me, more satisfactory legal grounds, which I deem it proper to state somewhat at large.

The prisoner was charged with the crime of murder, The defence was that the act of killing was. committed while he was insane. A large number of witnesses were called and examined in his behalf, who testified to his state of health, habits, peculiar opinions, &c., during a series of years, and tending, as his counsel claimed, to prove him insane. They then called several eminent medical witnesses, who were skilled in mental diseases, and who had heard all the facts testified to by the other witnesses, and who had also seen and examined the prisoner, and asked them their opinion as to the state of the prisoner’s mind at the time of the commission of the act. They gave it as their opinion that he was insane. After the prisoner’s counsel had closed his case, the district attorney called as a witness, Doctor Eastman, who testified preliminarily, that he had heard most of the case, but not all of it; that he had heard some of the defendant’s evidence, some he had read, and other portions he had not heard or read; that part of the time while the testimony was being given in, he was listening with one ear and reading a newspaper, when he heard what he did hear of the testimony of the mother of the prisoner. The district attorney then asked him the following question: “From what you have heard of the case, and what you have read of it, and what you know of it, what are your views of it?” To the question and the evidence called for under it, the prisoner’s counsel objected on the ground that the witness had not heard the whole of* the evidence, and it was not competent for the witness to give an opinion upon the evidence as to the prisoner’s mental state at the time of the act, without having heard the whole of the evidence. The court overruled the objection, and the prisoner’s counsel excepted. The witness then gave an opinion unfavorable to the defence. The sources of information from which the witness was permitted to draw his facts, and upon which to base his opinion, were as broad and various as the question he was called upon to answer, indicates, viz: what the witness had heard of the casé, what he had read of it, and what he knew of it. It is clear that what the witness had heard of the case out of court, or from any other source than witnesses under oath, or from his own personal knowledge of the prisoner, would not form a legal foundation, on which to base a professional opinion, nor could it be possible to base such opinion upon evidence read in the newspapers by him. But the witness was allowed to give his opinion of prisoner’s sanity, on information derived from such objectionable sources; and he was likewise permitted to give his views of the case. This was also improper. On trials involving inquiries as to the sanity of prisoners, a Witness should not be permitted to give his Opinion on the case, or On the question of guilt, but only on the question of sanity. (Jameson v. Drinkald, 12 Moore, 157.) But the objection made by the prisoner’s counsel, to the question put,-Was not sufficiently specific-to reach the criticisms abové made, and he can not, therefore, avail himself thereof on this bill of exceptions. I shall therefore confine my attention to that portion of the objection which was clearly and broadly made, that this witness should not be permitted to give a professional opinion on the prisoner’s insanity, because he had not heard all the evidence, tending to establish insanity, which the prisoner had adduced.

This is a highly important quéstion, and seems not to have been clearly decided in any adjudicated case, but there are dicta to be found in the books, which seem to indicate that in the opinion and practice of the courts, a medical witness called to give an Opinion on the question of insanity, where that opinion is to be based upon facts testified to by other witnesses, must hear all the evidence tending to prove insanity. The general rule laid down by Phillips (1 Ph. Év. 290,) is, “ The opinion of medical men is evidence as to the state of a patient whom they have seen. Even in cases where they have not seen the patient, but have heard the 'sympfo'ms and particulars Of his case described by other witnesses at the trial, .their opinion on the nature of such symptoms has been. properly admitted. Thus, On a question of sanity, medical men have been permitted to form their judgment úpon the representation which witnesses upon the trial have given of the conduct, manner and general appearance exhibited by the patient.”

Upon the discussion which took place in the English house of lords, in 1843, in consequence of the acquittal of Daniel McNaughten, for the murder of Mr. Drummond, the following question amongst others, was propounded to the judges, in relation to the defence of insanity, viz., “ can a medical man, conversant with the disease of insanity, who never saw the prisoner previous to the trial, but who was present during the whole trial, and the examination of all the witnesses, he asked his opinion as to the state of the prisoner’s mind at the time of the commission of the alleged crime, &c. ? ”

To this question an affirmative answer was given, (47 Eng. Com. Law Rep. 29.) The form of the question above given, clearly indicates that the medical witness must hear the whole evidence, in order to qualify him to give an opinion. So in Rex vs. Searle, (1 M. & Rob. 75,) it was held, that a medical man who had heard the trial, may be asked whether the facts proved show symptoms of insanity? Here again, the medical witness must have heard the whole of the evidence.

So in McJVaughten’s case, (10 Cl. Fin. 200,) it was held that a medical man, who has been present in court and heard the evidence, may be asked as a matter of science, whether the facts stated by the witnesses, supposing them to be true, show a state of mind incapable of distinguishing between right and wrong. Here again, it is quite apparent that the witness heard the whole of the evidence tending to prove insanity.

So in Chitty’s Medical Jurisprudence, page 356,) the rule is laid down thus. “ The opinion of medical witnesses, who have seen the alleged lunatic, is unquestionably admissible, and although they have not seen the lunatic, yet their opinion after hearing all the evidence, whether or not a person having so acted, and evinced such delusions, ought to be deemed a lunatic, it seems, is admissible.

By the criminal law of Scotland, the medical witnesses, who are to give a professional opinion, must hear the whole facts of the case detailed by the other witnesses, whether professional or ordinary, who are examined in the cause; and medical witnesses therefore are exempt from the rule which excludes all the witnesses from the court room, except the witness under examination, ( 2 Allison’s Cr, Law of Scotland, 544.)

The above cited authorities, in the absence of even a dictum to the contrary, should settle the question in favor of excluding a witness’s opinion, who stood in the situation of Doctor Eastman. But in the absence of all authority on the question either way, it seems to me, the legal mind must come to the same conclusion, to which the above authorities tend.

The reason of the rule, which admits the opinions of medical men on questions of insanity, is that they who have devoted their attention for a long time to' diseases of the. body and mindl become experts in discovering and properly appreciating the physical and psychological evidences of that deplorable malady. They become skilled in the phenomena attendant upon an abnormal mental condition; and the facts bearing on the question of insanity are the letters of the alphabet, by means of which they are enabled to spell out the true mental condition of the patients, and explain it to the jury, who are presumed not to understand the subject. For if the jury had the same skill and science. as the medical witness, the testimony of the latter would he useless and inadmissible. The opinions of such witnesses are intended to aid, guide and lead the jury to a true conclusion on a subject often shrouded in impenetrable mystery, and always difficult of solution.

The opinions of medical men skilled in diseases of the mind, are therefore substantive evidence in the cause in the same sense that the evidence of an interpreter of an unknown language, is evidence of the meaning of that language.

It would seem to be a just inference, from, the reason of the rule allowing such evidence, that the medical witness should be in possession of all those facts tending to prove insanity, before he should be permitted to give an opinion negativing insanity. His opinion on half the facts of the case on which the jury are to decide the cause, must he utterly worthless, for it may well he that the same witness, with all the facts before him would pronounce a very diffierent opinion.

It is said, that as the jury hear all -the facts of the case, they will not overweigh the opinion of a medical witness, who has heard only a part of the facts. But who knows that for a certainty"? Who has the right to impose upon the prisoner the hazard of the experiment"? It must be remembered that the jury to whom the evidence is addressed, are presumed to be ignorant of the disease, by the rule which permits the opinions of such witnesses; and if so, how are they to distinguish between, and duly weigh the importance of the additional facts known to them, but which the medical witness has not heard.

If the jury possessed the same skill as the medical witness, there would be less reason for the objection to an opinion on a partial statement of the facts, because the jury could be presumed capable of determining the relative importance of the facts known by the medical witness, and those not known by him. But as the jury do not possess the same skill as the medical witness, his opinion, on a partial ^statement of the facts, must be worse than useless, for it tends to confound and mislead the jury by imposing upon them the duty of at least attempting to weigh the relative importance of the facts, upon which the opinion of the medical witness is based, and the other facts in the cause, which were unknown to the medical witness, and did not, therefore, enter into his reasonings in the result arrived at by him.

That jurors are deemed unskilled in the disease of insanity, is evident from the fact that they, as witnesses, would not be permitted to give an opinion on facts testified to by others, whether a person is insane. And it is now a mooted question, whether they can express an opinion on the subject in connection with a relation of the facts, known to themselves and on which such opinion is founded. (7 Barb. S. C. Rep. 314.)

It has always, since I have examined the subject, seemed to me to be a clear proposition, that no medical witness should be permitted to express an opinion against the allegation of insanity, until he has heard all the evidence tending to prove the affirmative of the proposition, and that where the medical witnesses are men of integrity and skill, and all agree that a given state of facts proves insanity, it is the solemn duty of the jury so to pronounce by their verdict. Such, too, is the rule of evidence. Cuilihet in arte sua credendum, est. Otherwise, you would permit the opinions of a jury, unskilled in the disease of insanity, to overrule the opinions of the experienced medical witnesses on the same state of facts. And so would it he also on other subjects where the evidence of experts is invoked to aid in the attainment of truth.

I do not mean to he understood as holding that the medical witness must himself hear the facts testified to by the other witnesses tending to prove insanity. If those facts are all stated over to him by the court or counsel it is sufficient. An d they may be stated hypothetically, as indeed they must be in the nature of things, because the jury are alone- the judges what facts are proved. But what I contend for is the essential principle that the basis of facts upon which the medical witness is to reason and build conclusions, must be as broad as that of the jury, to whom they stand in the position of interpreters. From the very nature of the inquiry, there must be an evident distinction between the evidence to prove and evidence to disprove insanity, for while it is impossible to negative the presence of the disease until we have heard and considered all the affirmative evidence tending to prove its existence, yet the converse of the proposition is not true, and the affirmative of the issue may be proved without hearing all the evidence, because some one or more facts may be so decisive of the case as to render all other testimony superfluous and unnecessary. Having arrived at the conclusion on the ground both of reason and authority, that the testimony of Doctor Eastman was erroneously admitted, a new trial must be granted and I will not examine the other alleged errors insisted on by the prisoner’s counsel, but will leave them to be corrected or avoided on the new trial.

Conviction reversed and new trial granted.