The opinion
I agree with Judge MARTIN, and am also of opinion that for the following additional reasons there was reversible error in allowing Dr. Harrison to testify to a conversation he had with a police officer in the presence of the defendant when the latter was lying on the sidewalk, shortly after the shooting, and it was a disputed question of fact whether he was unconscious or shamming unconsciousness. This very important question was for the jury to determine. If they decided that the defendant was shamming, the fact so established bore with terrible force against him, and tended to show that he did know the quality of his act, and that it was wrong. It was a fact that tended to shatter the foundations upon which his principal defense rested.
It was, of course, competent for the People to put Dr. Harrison on the stand at the trial and prove by him, if they could, that defendant was shamming in his opinion, on the occasion in question.
The defendant could then meet this evidence by such proofs as he might have, and the jury would take the question to their consultation room with the other issues in the case.
This was not the actual course of the trial. Dr. Harrison was not asked to give his opinion upon a disputed question of fact which was to be submitted to the jury. He was asked to state what he said to a police officer in the presence of the defendant immediately after the shooting, and defendant's counsel objected that "it is not shown that the defendant was *Page 379
in condition or position to understand or hear what was said in his presence."
Then followed this question by the court: "Q. Was it in the presence of defendant, doctor? A. Yes, sir. The Court: Then I will allow it."
What, then, was the situation? The court practically held that the defendant was conscious, and the evidence was competent, for it would shock the sense of justice if a defendant was to be prejudiced by his failure to reply to a statement made in his presence, if at the time, although physically present, he could not hear and understand.
The result of this ruling was that the court determined a disputed question of fact and took it from the jury.
There is only one safe rule in a case of this kind, and it is well settled by this court, viz.: Statements in the presence of the defendant are only competent when he is in a position to hear and understand. ( M'Kee v. People, 36 N.Y. 113 , 116 ; Lanergan v. People, 39 N.Y. 39 , 41 .)
If his condition is a matter of dispute, the statement in his presence is incompetent, although the People are entitled to go to the jury on the question whether defendant was really unconscious or merely shamming.