The opinion
I vote for reversal of this judgment, but as I disagree with several propositions stated by my brother O'BRIEN, I deem it necessary to state the grounds of my action.
I think the evidence was sufficient to justify and require the submission of the issue of the defendant's guilt of the crime charged to the jury, and had the trial been free from substantial error I would not be disposed to interfere with the verdict of the jury. Nor do I regard the grounds on which application was made for a new trial as possessing substantial merit. The fact that Jones, the defendant's accomplice, was to have practical immunity from punishment was as apparent on the trial as it was on the application made for a new trial. The fact that the coroners' physicians received compensation *Page 218
for their services in making experiments to qualify them as experts on the trial constitutes no ground for discrediting their testimony. While every person must sacrifice his time for the administration of justice and testify to facts within his knowledge in criminal cases without any compensation, I do not understand that a witness can be compelled to exercise his judgment as an expert and testify to the results of his examination and reflection without compensation for his labor. If there is any suspicion that the testimony of an expert witness is affected by the magnitude of the compensation he has received, or is to receive, he may be examined as to the matter by the opposing counsel. But the presumption being that the witness is to receive compensation, inquiry as to it, if deemed important, should be made at the trial. There is nothing in this case to show that the compensation subsequently paid was extravagant or exorbitant.
The question of whether an error committed on the trial of a cause requires a reversal of the judgment is necessarily a question of degree. By the express terms of the Code of Criminal Procedure (§ 542) we are required to give judgment without regard to technical errors or exceptions which do not affect the substantial rights of the parties. Personally, within a short time past, I have written for the affirmance of a judgment, in a capital case, where there was a plain legal error in the admission of testimony, because it seemed clear that the improper testimony could have had no effect on the verdict. There are a number of errors of that character in the present case which might well be disregarded, such as the allowance of the question by the district attorney put to a witness for the prosecution asking him whether he did not know that every person to whom the will and disputed signatures of Rice had been presented had pronounced them false. The People had proved the signatures to be forgeries by so many witnesses and such abundant testimony it is not possible to see that the answer to this question could have influenced the verdict of the jury. Such also is the case with the testimony which Jones was allowed to give as to confessions made to *Page 219
him by Patrick when he and Patrick were in consultation with their counsel. This error, if error it was, which may be doubted, could have had no influence on the verdict. Jones had already testified to the complicity of Patrick in the crime and that was the question to be determined by the jury. Jones' testimony that Patrick subsequently confessed the crime in his presence did not tend to make his story of the transaction any more credible, as both the complicity and the confession rested on the statement of the same witness, that witness an accomplice. But there is a limit to the extent to which we may disregard errors even in a case where we think that the verdict is warranted by the facts. The guilt of a prisoner must be found by the jury not by this court, and be found on a trial conducted in accordance with the rules of law. It is an error which is not only technical but which does not affect the substantial right of the defendant that we are authorized to disregard. In my opinion there were several vital errors committed in the admission and exclusion of testimony.
1. Suicide or an attempt at suicide made under charges of crime, like flight, is a confession, and it is only as a confession that the fact of such attempt at suicide is admissible in evidence. It is plain that the confession of Jones was not competent evidence against Patrick and, therefore, Jones' attempt at suicide was equally incompetent.
2. The theory of the prosecution was that the death of the deceased was caused not by the anæsthetic effects of chloroform but by the irritant effects of the vapor of chloroform on the lungs or by asphyxiation. As said by one of the experts for the People, chloroform caused the death of the deceased just the same as the vapor of ammonia or any other irritant gas would have done. This theory was based on the proposition that nothing else than an irritant vapor or gas could have produced a condition of congestion co-extensive with the whole lungs. Dr. Loomis, probably the principal expert for the prosecution, testified. "The important point in an autopsy of that kind would be an explanation of the *Page 220
intense congestion all over the lungs. That would call anybody's attention to find out why those lungs were intensely congested all over; and finding no other cause of death, you would reason that some irritant, either in gas or some vapor or something, had come down through the mouth, through the windpipe, through these bronchial tubes and had gone over the lungs. I know of nothing outside or beyond an irritant vapor or gas that will produce congestion, co-extensive with the lungs." Jones testified that he did not know whether the deceased was living or dead at the time of the administration of the chloroform. But if it was established that there was this general congestion of the lungs and that such congestion could be produced by nothing but an irritant vapor or gas, it is plain that the deceased must have been alive at the time of the administration of the chloroform, because if dead he could not have inhaled its vapors. Therefore, the case turns in the first instance on the question of fact whether there was this congestion co-extensive with the lungs, and that fact depends on the statement of three witnesses, two coroners' physicians and the chemist. The most important of these witnesses in his testimony was Dr. Donlin, one of the coroners' physicians. The defendant's counsel sought to contradict the witness' testimony in this respect by proof that at the close of the autopsy he had declared in the presence of reporters and others that the deceased died from old age. This testimony was excluded on the ground that the attention of the witness Donlin had not been called specifically to the declaration. Counsel then asked to recall Dr. Donlin for the purpose of asking him whether he made such a declaration. This request was refused. I think the attention of the witness had been sufficiently called to the declaration, but if it had not been, I think the refusal of the trial court to allow the witness to be recalled so that the question of the declaration might be put to him was a clear abuse of discretion. As already said, the extent of the congestion was the vital point in the case. Dr. Loomis testified substantially that such a condition of congestion *Page 221
was so abnormal that it "would call anybody's attention to find out why those lungs were intensely congested all over." Now, if at the conclusion of the autopsy the doctor, so far from alluding to this remarkable state of congestion, stated that the deceased died of old age, it might well be argued that he had not observed the state of congestion which he testified to on the trial and which, according to Dr. Loomis, should have been the first thing to have attracted the attention of any one performing the autopsy. This error seems to me most substantial in its character and one that cannot be disregarded.
3. I agree with Judge O'BRIEN that it was error to exclude the hypothetical question put by the defendant's counsel to his expert, Dr. Lee, on the ground that it failed to state that the congestion was co-extensive with the lungs. The defendant's counsel was not obliged to assume that fact even if Dr. Donlin had testified to it unqualifiedly, which I think he did not. He had the right to assume the aspect of the case most favorable to his side in his hypothetical question, and he had the right to ask the jury to reject the testimony of the doctor that the congestion was co-extensive with the lungs.
4. I agree with Judge O'BRIEN that the exclusion of the question to Dr. Girdner, an expert of great experience in the administration of chloroform, as to how long after its administration the odor of chloroform would be discernible, was error, and also that the exclusion of the questions to Dr. Millican, of his judgment based on his researches as to the presence of congestion in the cases of death by chloroform, was error. The effect of these erroneous rulings as to expert testimony must not be underestimated, for the vital fact to be proved was the death of Rice by chloroform, and though Jones testified to its administration, still Jones being an accomplice it was necessary under the statute that Jones be corroborated. That corroboration in this case consisted of the proof of two facts, the general congestion of the lungs and that such condition could be produced only by the inhalation of an irritant vapor. The second fact, which was as *Page 222
essentially an element of the proof as the first, necessarily rested wholly on expert evidence. Therefore, errors in rulings on such evidence were substantial and prejudicial.
There were other errors in the case. It is unnecessary, however, to pursue the discussion, as I base my vote on the grounds stated.
BARTLETT, HAIGHT and WERNER, JJ., concur with GRAY, J.; O'BRIEN, J., reads dissenting opinion, and VANN, J., concurs; CULLEN, Ch. J., concurs in memorandum.
Judgment of conviction affirmed.