46

minutes of the testimony as made by him and without any recollection of the manner of the accused in testifying." The expert may not state his present opinion as distinguished from the opinion he had or the impression made upon his mind at the time of the occurrence observed.45 He must state the facts first, and then on this evidence he may express his opinion or impression formed at the time as to the sanity of the accused. Though, the opinion of the non-expert witness is in its effect the opinion as to the sanity of the accused at a particular time, he is not usually permitted to state his opinion in that shape. All that he is permitted to do, after he has described the facts upon which the opinion is based, is to state whether in his opinion on the facts which he testified to the conduct of the accused was rational or irrational. *7

47

§ 162. Non-expert must relate in evidence facts on which his impression is based—Degree of knowledge required.—The opinion of a non-expert, on facts related to him, is never received. But where he has seen the actions of the person, and conversed with him, the law considers it easily within the mental ability of any ordinary person to distinguish the mental condition of an insane person. The influence and value of his opinion will depend largely on the intelligence he shows on his examination, and upon his opportunities for acquiring the knowledge on which his opinion is based.

"People v. Koerner, 191 N. Y. 528, 84 N. E. 1117, aff'g 117 App. Div. (N. Y.) 40, 102 N. Y. S. 93.

45 O'Brien v. People, 36 N. Y. 276, 282; Hickman v. State, 38 Tex. 190.

46 Armstrong v. State, 30 Fla. 170, 201, II So. 618, 17 L. R. A. 484n; State v. Williamson, 106 Mo. 162, 171, 17 S. W. 172; State v. Pennyman, 68 Iowa 216, 26 N. W. 82; Hoover v. State, 48 Neb. 184, 66 N. W. 1117; Com. v. Buccieri, 153 Pa. St. 535, 26 Atl. 228; Ellis v. State, 33 Tex. Cr. App. 86, 24 S. W. 894; State v. Beuerman, 59 Kan. 586, 53 Pac. 874; Henderson v. State, 49 Tex. Cr. App. 511, 93 S. W. 550; State v. Bell, 212 Mo. III, III S. W. 24; Atkins v. State (Tenn.), 105 S. W. 353; Common

wealth v. Wireback, 190 Pa. St. 138, 42 Atl. 542, 70 Am. St. 625; State v. Constantine, 48 Wash. 218, 93 Pac. 317; Fults v. State, 50 Tex. Cr. App. 502, 98 S. W. 1057; Bothwell v. State, 71 Neb. 747, 99 N. W. 669; People v. Koerner, 191 N. Y. 528, 84 N. E. 1117; Parrish v. State, 139 Ala. 16, 36 So. 1012. Where a lay witness, after describing the symptoms he observed, characterized a man's conduct as irrational, expert testimony showing that people may exaggerate such symptoms is inadmissible. People v. Webster, 59 Hun (N. Y.) 398, 400, 13 N. Y. S. 414.

And his previous personal acquaintance with the accused, its character and the length of time it existed, his freedom from bias or interest, the absence of finely spun theories from his conception of the whole matter, the fullness of the facts within his knowledge, and the accuracy of his memory, are also to be regarded in estimating the value of his evidence.18 The mental unsoundness or derangement of the accused may have been very marked. It may have been so apparent, from his actions, that any person, though possessing but weak and inadequate powers of observation, may be as competent to express an opinion as the most skillful and learned physician. Here it may be said that the insanity is matter of fact rather than of opinion, and the testimony of the witness is only an opinion in form. If, when stating it in a criminal trial, he narrates with particularity the minor details from which it is deduced or inferred, and, it being made to appear that he was personally acquainted with the accused for a long time, he details the furious acts and gestures, the foolish and incoherent talk, or the absurd and unnatural conduct of the accused, there can be no objection to his adding an inference that any man would draw from them, i. e., that the accused was insane. No rule can be laid down as regards the amount of knowledge which the non-expert witness must possess. The weight the opinion shall have is for the jury alone. If he has full knowledge of the previous life, antecedents and surroundings of the prisoner his opinion ought certainly to have more value than that of a witness who has only meager knowledge of these subjects.*

45 "It is true that a non-expert witness must always state the facts upon which he bases his opinion as to the mental capacity of a defendant in a criminal prosecution, and it is also true that it must appear that he has some knowledge of the acts and conduct of the person upon whose mental condition he declares his opinion. The extent of this knowledge has never been defined, and we cannot frame any general rule which will determine just how much or how little knowledge will entitle the witness' opinion to admission. * * The court

cannot decide whether the opinion is of much or little weight; its duty is merely to decide whether such knowledge is shown and such facts stated as entitle the witness to express any opinion at all." Colee v. State, 75 Ind. 511, 514; State v. Von Kutzleben, 136 Iowa 89, 113 N. W. 484; Underhill on Ev., § 197, p. 285.

"McLeod v. State, 31 Tex. Crim. App. 331, 20 S. W. 749; Armstrong v. State, 30 Fla. 170, 205, 11 So. 618, 17 L. R. A. 484n; Clark v. State, 12 Ohio 483, 489, 40 Am. Dec. 481; Colee v. State, 75 Ind. 511, 514; Sage v. State,

The question whether a witness who is a non-expert is competent to testify is for the court to determine. He must have had some acquaintance with the accused prior to the crime and he must have had some opportunity to observe his conduct upon which is based his opinion whether it was rational or irrational. If it shall appear prima facie that the witness did not have sufficient time for observation, his evidence should be excluded.5° Thus the witness cannot give his opinion as to the rational conduct of the accused where his only knowledge of the accused was such as was derived from business relations subsequent to the crime.51 On the other hand, it has been held that a police officer who talked with the accused after his arrest might testify that he then talked rationally where the defense was insanity.52 And under the rule that the non-expert witness must have had sufficient opportunity for observations, the prosecution may properly be refused permission to put witnesses on the stand from among bystanders to express their opinion as to the rational conduct of the accused, where the only basis for such an opinion is observations made during the trial. 53

§ 163. Expert evidence-What constitutes an expert-Physical examination of accused to ascertain sanity.-The rule governing the admission of expert testimony is the same in criminal as in civil cases. When the insanity of the accused is in issue, the opinions of competent physicians or of expert alienists are generally admissible. The opinion given may be brought out by a hypothetical question containing the facts proved, or assumed to be proved, on one side or the other.55 The putting of a hypothetical question

91 Ind. 141; Choice v. State, 31 Ga. 424; McClackey v. State, 5 Tex. App. 320; Pflueger v. State, 46 Neb. 493, 64 N. W. 1094; Braham v. State, 143 Ala. 28, 38 So. 919; Watts v. State, 99 Md. 30, 57 Atl. 542; United States v. Chisholm, 153 Fed. 808; Lawson v. State (Ind.), 84 N. E. 974.

50 Hite v. Commonwealth (Ky.), 20 S. W. 217, 14 Ky. L. 308; Blake v. Rourke, 74 Iowa 519, 38 N. W. 392; Wells v. State, 50 Tex. Cr. App. 499,

98 S. W. 851; Young v. State (Tex. Cr. App. 1907), 102 S. W. 1144.

51 Queenan v. Territory, 190 U. S. 548, 47 L. ed. 1175, 23 Sup. Ct. 762, aff'g 11 Okla. 261, 71 Pac. 218.

52 Parrish v. State, 139 Ala. 16, 36 So. 1012.

State v. Von Kutzleben, 136 Iowa 89, 113 N. W. 484.

State v. Webb, 56 Pac. 159, 18 Utah 441.

55 Cowley v. People, 83 N. Y. 464,

and the giving of an opinion on it is the better and customary practice, but where the expert has heard all the testimony bearing on the mental condition of the accused, and there is no conflict in the evidence, it is not error to permit him to give his opinion based solely upon the evidence as heard by him.56 So, also, an expert may give his opinion based on the evidence as stated in a hypothetical question and also upon an examination of the accused made by the expert as a physician.57 An expert may give his opinion upon knowledge obtained and facts observed by the witness. in treating or examining the accused professionally.58 Generally an expert witness will not be allowed to give an opinion on the evidence, unless it is embodied in a hypothetical question. To allow this would be to usurp the exclusive province of the jury and enable him to decide upon the credibility of the testimony. But an expert witness may, where the evidence is not conflicting, and if he has heard all of it bearing on insanity, be permitted to give his opinion as regards the mental condition of the accused, based upon the facts in evidence, if true." And where a hypothetical

470, 38 Am. 464; Dejarnette v. Commonwealth, 75 Va. 867; State v. Pagels, 92 Mo. 300, 315, 4 S. W. 931; Underhill on Ev., p. 287, n. 4. People v. James, 5 Cal. App. 427, 90 Pac. 561; State v. Bell, 212 Mo. 111, III S. W. 24; Feople v. Koerner, 117 App. Div. (N. Y.) 40, 102 N. Y. 93; Parrish v. State, 139 Ala. 16, 36 So. 1012; State v. Dunn, 179 Mo. 95, 77 S. W. 848; Schissler v. State, 122 Wis. 365, 99 N. W. 593.

W. 1145; State v. Reidel, 9 Houst. (Del.) 470, 14 Atl. 550; State v. Hayden, 51 Vt. 296; People v. Wood, 126 N. Y. 249, 27 N. E. 362, 366; State v. Baber, 74 Mo. 292, 41 Am. 314; State v. Hockett, 70 Iowa 442, 30 N. W. 742; Commonwealth v. Buccieri, 153 Pa. St. 535, 26 Atl. 228; People v. Schuyler, 106 N. Y. 298, 305, 306, 12 N. E. 783; People v. Smiler, 125 N. Y. 717, 719, 26 N. E. 312; Parrish v. State, 139 Ala. 16, 36 So. 1012; State

State v. Privitt, 175 Mo. 207, 75 v. Soper, 148 Mo. 217, 49 S. W. 1007; S. W. 457.

57

State v. Ayles, 120 La. 661, 45 So. 540. The expert may give an opinion on an admitted state of facts, or may state facts within his knowledge as a witness and express an opinion on

People v. Koerner, 191 N. Y. 528, 84 N. E. 1117, aff'g 117 App. Div. (N. Y.) 40, 102 N. Y. S. 93, 20 N. Y. Cr. 515. BS Commonwealth v. Johnson, 188 them; or a state of facts supported Mass. 382, 74 N. E. 939.

Sanchez v. People, 22 N. Y. 147, 154; People v. Lake, 12 N. Y. 358, 362; Commonwealth v. Rogers, 7 Metc. (Mass.) 500, 41 Am. Dec. 458; State v. Wright, 134 Mo. 404, 35 S.

in some degree by the evidence might be assumed on which he may give an opinion; if the assumed facts are proved the statement of the opinion is evidence, otherwise it is not to be

61

question is put it is within the discretion of the court to permit the expert to make an explanation." But the expert who testifies as to the insanity of the accused should not be permitted to testify that in his opinion, the accused was or was not capable of determining between right and wrong. A witness to be regarded as an expert must have made insanity a subject of special study. He should also have had such practical experience in the care and treatment of the insane2 as will render him conversant with the subject and able to recognize its peculiar subtle manifestations.6 A medical student whose knowledge of mental diseases is wholly derived from lectures he has heard cannot be accepted as an expert. But a physician attached to a hospital or asylum may testify to the mode of treating insane persons and as to the methods of his hospital though he is not an expert on insanity. But it has been held that if he has had experience in treating cases of insanity, and if he has practiced as a physician and surgeon, he is not incompetent because he has not made insanity a special study. In the absence of a mandatory statute the appointment by the court of a physician to examine an accused person, alleged to be insane at the time of his arraignment, is wholly discretionary, and usually the necessity for the examination must be made to appear. The jury are never concluded by the report of exam

64

66

67

considered. It is not necessary in stating a hypothetical case to assume all the facts which the evidence tends to prove, but all facts assumed must be supported by some evidence. Guetig v. State, 66 Ind. 94, 104-105, 32 Am. 99n; and cf. Burt v. State, 38 Tex. Cr. App. 397, 40 S. W. 1000, 43 S. W. 344, 39 L. R. A. 305n; Schissler v. State, 122 Wis. 365, 99 N. W. 593. 00 Commonwealth v. Parsons, 195 Mass. 560, 81 N. E. 291.

63

65

Reese Med. Juris., p. 19; State v. Bell, 212 Mo. III, 111 S. W. 24; Lowe v. State, 118 Wis. 641, 96 N. W. 417. The physician had treated four insane persons during a practice of 18 months.

64 Hamilton v. United States, 26 App. Cas. D. C. 382.

People v. Koerner, 154 N. Y. 355, 48 N. E. 730.

State v. Reddick, 7 Kan. 143, 151; Lowe v. State, 118 Wis. 641, 96 N.

State v. Brown, 181 Mo. 192, 79 W. 417. S. W. IIII.

67

People v. McElvaine, 125 N. Y. 596, 604, 608, 26 N. E. 929. See, also, Webber, v. Commonwealth, 119 Pa. St. 223, 13 Atl. 427, 4 Am. St. 634; State v. Arnold, 12 Iowa 479, 483; People v. Ah Ying, 42 Cal. 18.