The opinion
I think the statement of Dr. Harrison to the effect that he did not see that there was very much the matter with the defendant and that he was probably faking, and the statement made by Dr. Donovan to Officer Fowler to "look out for him or he would get up and run," were, under the circumstances, improperly received and should have been excluded; but I am not satisfied that a new trial should be granted in consequence of the admission of these statements. Both Dr. Harrison and Dr. Donovan examined the defendant immediately after the homicide, and each was sworn as a witness upon the trial, in which they fully described his condition and gave it as their opinion that he was shamming unconsciousness. Dr. Donovan said that he made a through external examination as well as he could with *Page 380
the man lying upon the sidewalk; that he examined his head and body and felt of his pulse; that his pulse rate was eighty and his respiration eighteen a minute; that everything about him appeared to be normal; that being of the impression that he had shot himself he had looked for hemorrhage and found none; that he opened his lips and put his fingers in his mouth to find out if he had shot himself in the mouth, and when he did so, defendant attempted to close his mouth upon his fingers. Dr. Harrison testified that the man's condition presented nothing abnormal, except his apparent unconsciousness; his pulse was normal, his respiration normal, the pupils of his eyes and color normal. The jury, therefore, had the benefit of the sworn testimony of the doctors, giving the details of the transaction and a full description of the condition of the defendant, with their reasons for their conclusions as to his condition. I am unable to see how, under the circumstances, an intelligent jury could have given weight to, or been improperly influenced by, the declarations. It is evident that the defendant did not regard them as seriously prejudicial to his case, for, when he had Policeman Coffey upon the stand, he showed by him that the ambulance surgeon, referring to Dr. Harrison, had told him that the defendant was shamming.
It is provided that, after hearing an appeal, the court must give judgment without regard to technical errors or defects, or to exceptions, which do not affect the substantial rights of the parties. (Code Criminal Procedure, section 542.)
In this case the defendant shot and killed Rose Alice Redgate, in one of the streets of New York, at about six o'clock in the evening, in the presence of numerous witnesses; this fact has not been denied. The evidence presented on behalf of the defendant was properly submitted to the jury; and if there was ever a case in which the provisions of the Code referred to should be given force and effect, it appears to me that this is one. I am unwilling to join in the affirmance of a case of this character where the accused has not had the benefit of a fair and impartial trial; but in cases where no reasonable doubt with reference to the guilt of the accused exists, I *Page 381
think we ought not to send a case back for errors which cannot and ought not to affect the result reached by the jury. If any public good is to be accomplished by the administration of the criminal law, punishment should follow the commission of crime with reasonable dispatch. The legislature has given this court broad powers with reference to the granting or refusing of new trials; and, whilst it is our duty to fully protect the rights of the accused and see to it that no innocent person is punished, we should not forget that there is a public interest involved, which it is also our duty to regard.
MARTIN and BARTLETT, JJ., read for reversal and new trial; ANDREWS, Ch. J., O'BRIEN and VANN, JJ., concur.
HAIGHT, J., reads for affirmance, and GRAY, J., concurs.
Judgment reversed and new trial granted.