Mullin, P. J.:
The indictment charges that the defendants named in it did unlawfully conspire, etc., by divers false pretenses, etc., to obtain from Haskell his promissory note for $50; and in pursuance of such unlawful combination, Babcock, one of said defendants, did falsely, etc., pretend to Haskell that one Jennie McKee was in the family-way, and that she was about to disclose and make public the fact, and to charge the paternity of the child upon him,- and if he would pay to Babcock or Merville the sum of $50, or give him or them his note for that amount, Merville would immediately procure the miscarriage of Jennie, and that, would end the whole trouble, and keep the story as to the paternity of the child from the public; and, by means of these false pretenses, they pro[352]*352cured the note of said Haskell, and the indictment proceeds to aver that in truth and in fact Jcnnie was not in the family-way, nor was she about to disclose and make public the paternity of said child, and charge it on said Haskell.
It was incumbent on the public prosecutor to prove some one, or all of these representations and their falsity, in order to convict the defendants or either of them.
The indictment alleges the falsity of but two of the representations, to wit: That Jennie was not in the family-way; and was not about to charge Haskell with the paternity of the child; and the prosecutor is bound to prove the representations alleged to be false, and he is confined to the representations so alleged to be false. (The People v. Stone, 9 Wend., 182, 191.)
It is not proved that she was not with child. She alleged that she was, and because it does not appear that a child was born, it does not follow that she was not with child when the representation was made.
Again, it is not proved that she was not about to charge upon Haskell the paternity of the child. It was not for the defendant to prove the truth of the representations. It was incumbent on the public prosecutor to disprove them, and unless he did the defendant was entitled to an acquittal.
No objection was made on the trial that the prosecution had failed to prove the offense as charged in the indictment; but when there is total failure to prove the offense, the omission of the counsel of the accused to call the attention of the court and the public prosecutor to it, does not deprive the accused of the right to raise the objection in any stage of the case, and demand an acquittal. It would be a gross outrage upon the rights of a person accused of crime to convict and punish him for an offense that it had not been proved he had committed, because his counsel had negligently omitted to insist upon the trial that the offense charged was not proved.
When the public prosecutor fails to prove some fact on the trial that is necessary to be proved, in order to justify a conviction, the prisoner’s counsel must call the attention of the court and counsel to the omission ; and if he does not, and conviction follows, the prisoner cannot afterward insist upon the defect of [353]*353proof as a ground for reversing the judgment. But when there is in fact no legal proof of the offense charged in the indictment, it is the duty of the court to direct a verdict in favor of the accused, or upon appeal to reverse the judgment.
In this case, if my view of it is correct, there is an entire defect of proof, and a new trial should be granted; but as this point has not been discussed by the counsel, a reargument must be ordered, unless error is found in some of the rulings of the court, and a new trial shall be ordered for such error.
After the jury was impauneled to try both defendants, and a witness was sworn, the counsel for the defendant Merville moved that defendant Merville be tried separately; the counsel of defendant Babcock objected; the objection was overruled, and a separate trial ordered. The counsel for defendant Babcock excepted.
The offense for which the defendants were indicted is a felony. 3 Revised Statutes (5th od.), 956, section 55, and by section 22 of same volume, 1028, it is provided that when two or more defendants shall be jointly indicted for any felony, any one defendant requiring it shall be tried separately. Merville had the absolute right to a separate trial, and it could not be refused him. It would have been a ground for refusal, if the court had any discretion in the premises, that the demand came too late. (Wharton’s Criminal Law, § 433.) Bxit the court yielded to the requirements of the statute, and we must presume that the proceedings subsequent to the granting The separate trial wore in conformity to law. If it appeared that ¡the jury or the witness was not again sworn, the one to try and the other to give evidence, in the case of The People v. Bahcock, a new trial should be granted. To swear the jury and witnesses in a case against two defendants, when only one was on trial, is a mis-trial, and a new trial should follow.
The exception to the questiou by the prosecution to Ilaskcll, ■whether his conversation with Merville was on the same subject that the one with Babcock was, was a valid one; but the question does not seem to have been answered, and therefore the defendants sustained no injury. The witness related a conversation between himself and Merville, after the objection just considered was overruled, and he may have done so in answer to the. question objected to; but it was not responsive to the question [354]*354that called for the answer yes or no, and not for the detail of the conversation. The evidence given was not objected to. An exception was taken by defendant’s counsel to the admission of a conversation between Haskell and Dr. Boddy in relation to a note. The witness in his answer does not allude to a note; and if it was incompetent to give evidence in regard to a note, no wrong was done to the defendant, as a note was not spoken of by him in answer to the question objected to.
Dr. Crane was examined in behalf of the people, and was asked by the district attorney whether he had an interview with defendant, at a time named, when ho came for medicine. The defendant’s counsel objected to the evidence, on the ground that it was a confidential communication to a professional man. The objection was overruled, and the witness answered that he did. • The question was competent, as it did not call for any communication made by defendant to the doctor. It ivas asked to ascertain whether the witness had an interview with defendant when he wanted medicine.
The defendant then objected to all the interview and to all the conversation then had. The witness proceeded to state the conversation, and in it he said defendant told the doctor he wanted medicine for Jennie, who had taken cold and was suffering from suppressed menses, and that subsequently, in about a month, the medicine was returned, and defendant told the doctor that the medicine was for his wife, and was not given because she ivas pregnant. Section 104, of 3 Ecvised Statutes, (5th ed.) 690, only prohibits physicians and surgeons from disclosing' information, acquired in attending any patient in a professional character, and which information was necessary to enable him to prescribe for such patient as a physician or do any act for him as a surgeon. The physician was not excused from testifying. The defendant was not consulting him for himself, nor does it appear that he was representing any one else who needed or desired medical assistance. (Hewit v.
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Mullin, P. J.:
The indictment charges that the defendants named in it did unlawfully conspire, etc., by divers false pretenses, etc., to obtain from Haskell his promissory note for $50; and in pursuance of such unlawful combination, Babcock, one of said defendants, did falsely, etc., pretend to Haskell that one Jennie McKee was in the family-way, and that she was about to disclose and make public the fact, and to charge the paternity of the child upon him,- and if he would pay to Babcock or Merville the sum of $50, or give him or them his note for that amount, Merville would immediately procure the miscarriage of Jennie, and that, would end the whole trouble, and keep the story as to the paternity of the child from the public; and, by means of these false pretenses, they pro[352]*352cured the note of said Haskell, and the indictment proceeds to aver that in truth and in fact Jcnnie was not in the family-way, nor was she about to disclose and make public the paternity of said child, and charge it on said Haskell.
It was incumbent on the public prosecutor to prove some one, or all of these representations and their falsity, in order to convict the defendants or either of them.
The indictment alleges the falsity of but two of the representations, to wit: That Jennie was not in the family-way; and was not about to charge Haskell with the paternity of the child; and the prosecutor is bound to prove the representations alleged to be false, and he is confined to the representations so alleged to be false. (The People v. Stone, 9 Wend., 182, 191.)
It is not proved that she was not with child. She alleged that she was, and because it does not appear that a child was born, it does not follow that she was not with child when the representation was made.
Again, it is not proved that she was not about to charge upon Haskell the paternity of the child. It was not for the defendant to prove the truth of the representations. It was incumbent on the public prosecutor to disprove them, and unless he did the defendant was entitled to an acquittal.
No objection was made on the trial that the prosecution had failed to prove the offense as charged in the indictment; but when there is total failure to prove the offense, the omission of the counsel of the accused to call the attention of the court and the public prosecutor to it, does not deprive the accused of the right to raise the objection in any stage of the case, and demand an acquittal. It would be a gross outrage upon the rights of a person accused of crime to convict and punish him for an offense that it had not been proved he had committed, because his counsel had negligently omitted to insist upon the trial that the offense charged was not proved.
When the public prosecutor fails to prove some fact on the trial that is necessary to be proved, in order to justify a conviction, the prisoner’s counsel must call the attention of the court and counsel to the omission ; and if he does not, and conviction follows, the prisoner cannot afterward insist upon the defect of [353]*353proof as a ground for reversing the judgment. But when there is in fact no legal proof of the offense charged in the indictment, it is the duty of the court to direct a verdict in favor of the accused, or upon appeal to reverse the judgment.
In this case, if my view of it is correct, there is an entire defect of proof, and a new trial should be granted; but as this point has not been discussed by the counsel, a reargument must be ordered, unless error is found in some of the rulings of the court, and a new trial shall be ordered for such error.
After the jury was impauneled to try both defendants, and a witness was sworn, the counsel for the defendant Merville moved that defendant Merville be tried separately; the counsel of defendant Babcock objected; the objection was overruled, and a separate trial ordered. The counsel for defendant Babcock excepted.
The offense for which the defendants were indicted is a felony. 3 Revised Statutes (5th od.), 956, section 55, and by section 22 of same volume, 1028, it is provided that when two or more defendants shall be jointly indicted for any felony, any one defendant requiring it shall be tried separately. Merville had the absolute right to a separate trial, and it could not be refused him. It would have been a ground for refusal, if the court had any discretion in the premises, that the demand came too late. (Wharton’s Criminal Law, § 433.) Bxit the court yielded to the requirements of the statute, and we must presume that the proceedings subsequent to the granting The separate trial wore in conformity to law. If it appeared that ¡the jury or the witness was not again sworn, the one to try and the other to give evidence, in the case of The People v. Bahcock, a new trial should be granted. To swear the jury and witnesses in a case against two defendants, when only one was on trial, is a mis-trial, and a new trial should follow.
The exception to the questiou by the prosecution to Ilaskcll, ■whether his conversation with Merville was on the same subject that the one with Babcock was, was a valid one; but the question does not seem to have been answered, and therefore the defendants sustained no injury. The witness related a conversation between himself and Merville, after the objection just considered was overruled, and he may have done so in answer to the. question objected to; but it was not responsive to the question [354]*354that called for the answer yes or no, and not for the detail of the conversation. The evidence given was not objected to. An exception was taken by defendant’s counsel to the admission of a conversation between Haskell and Dr. Boddy in relation to a note. The witness in his answer does not allude to a note; and if it was incompetent to give evidence in regard to a note, no wrong was done to the defendant, as a note was not spoken of by him in answer to the question objected to.
Dr. Crane was examined in behalf of the people, and was asked by the district attorney whether he had an interview with defendant, at a time named, when ho came for medicine. The defendant’s counsel objected to the evidence, on the ground that it was a confidential communication to a professional man. The objection was overruled, and the witness answered that he did. • The question was competent, as it did not call for any communication made by defendant to the doctor. It ivas asked to ascertain whether the witness had an interview with defendant when he wanted medicine.
The defendant then objected to all the interview and to all the conversation then had. The witness proceeded to state the conversation, and in it he said defendant told the doctor he wanted medicine for Jennie, who had taken cold and was suffering from suppressed menses, and that subsequently, in about a month, the medicine was returned, and defendant told the doctor that the medicine was for his wife, and was not given because she ivas pregnant. Section 104, of 3 Ecvised Statutes, (5th ed.) 690, only prohibits physicians and surgeons from disclosing' information, acquired in attending any patient in a professional character, and which information was necessary to enable him to prescribe for such patient as a physician or do any act for him as a surgeon. The physician was not excused from testifying. The defendant was not consulting him for himself, nor does it appear that he was representing any one else who needed or desired medical assistance. (Hewit v. Prime, 21 Wend., 79.) Haskell was at defendant’s with Merville, and left and went to his house, and defendant followed him at request of Merville. Merville told defendant that Haskell left word to be sent for, if he (Merville) concluded to go home that night. The defendant then offered tc. fehow all that was 'said by Merville on the subject of going to [355]*355Haskell’s. The district attorney objected to the evidence, and it was excluded, and defendant’s counsel excepted. The evidence was clearly incompetent, and was therefore properly excluded.
The question to defendant, whether he stated anything to Haskell that “ you believed or knew to be false,” was improperly excluded. When a fraudulent intent is imputed to a person, or forms an element of a crime with which he is charged, he may deny the fraudulent intent, whether the effect is to defeat a cause of action or lessen the damages or punishment which may be inflicted. In this case a fraudulent intent was imputed to the defendant, and he had the right to repel it by his testimony. (Seymour v. Wilson, 4 Kern., 567; McKown v. Hunter, 30 N. Y., 628, and cases cited. The defendant’s counsel offered Merville, his co-defendant, as a witness in behalf of Babcock. The district attorney objected to his competency, being a co-defendant. The objection was sustained, and the witness excluded.
When the cause was tried (January 14, 1876), a person jointly indicted with another was not a competent witness for such other. (Patterson v. The People, 46 Barb., 625; Taylor v. The People, 12 Hun, 212.) The passage, on the 27th April, 1876, of a statute making a co-defenda?it a competent witness for the other, does not relate back and' render the decision erroneous. The court-has no power to order a new trial merely to enable the co-defendant to be examined.
I have thus considered all the points discussed by the relator’s counsel, and am of the opinion that the court below erred in regard to but one of them ; and by reason of that error the conviction must be reversed, and a new trial granted in the Allegany Sessions, to which the proceedings are remitted, with directions to proceed and retry said cause.
Present — Mtjllin, P. J., Talcott and Smith, JJ.
Conviction reversed, and new trial granted in the Allegany County Sessions, to which the proceedings are remitted, with directions to retry prisoner.