Mr. Justice Clark
delivered the opinion of the court, January 7th 1884.
The question sought to be raised by the prisoner’s special plea to the jurisdiction, is not properly before us. The rightful authority of a judge, in the full exercise of his public judicial functions, cannot be questioned by any merely private suitor; nor by any other, excepting in the form especially provided by law. A judge de facto assumes the exercise of a part of the prerogative of sovereignty, and the legality of that assumption is open to the attack of the sovereign power alone. If the question may be raised by one private suitor it may be raised by all, and the administration of justice would under such circumstances prove a failure. It is not denied that Judge McLean was a judge de facto, and if so he is a judge de jure as to all parties, except the Commonwealth. The attorney-general representing the sovereignty of the state, by a writ of quo warranto, might properly present this constitutional question for our consideration, but it cannot come before us from any other source, or in any other form. This is not a new question ; it came before this court in Burrell’s Case, 7 Barr 34; and in the case of Clark v. Commonwealth, 5 Casey 128. The same principle is distinctly asserted in Campbell v. Commonwealth, 15 Norris 344; and has been repeatedly applied in many others. This point was not pressed in the oral argument of counsel, but as it was the subject of the second assignment of error, wo have been obliged to dispose of it. As the plea to the jurisdiction could not in any event have [131]*131availed the prisoner, even to raise the question intended, it is not only unnecessary to discuss the grave constitutional question suggested, but the first assignment of error falling with the second, we need make no further reference to either.
The third and fourth assignments of error are withont merit. It was proper for the court, in the exercise of its discretion to allow the witness, John Coyle, Sr., to be recalled for further cross-examination, the offer was in part at least to lay ground for contradiction, and the testimony of Imsweiler was afterwards properly received for that purpose.
Nor can we find any merit in the fifth or sixth assignments. The testimony on the part of the defence, as to the prisoner’s habit of resorting to the woods, and remaining there in an apparently melancholy state was general, not specific, and the Commonwealth was therefore at liberty, by the introduction of specific facts, to explain the causes which on some occasions led to this result. If the proof on part of the prisoner had been of specific instances, the course of examination insisted upon by the prisoner’s counsel, might, perhaps, have been the proper one. The testimony of Philip A. Altland was stricken out of the case by the court, and the jury was instructed to disregard it; but if it had not been stricken out it was certainly competent by the testimony of Jerry Altland, to contradict J ohn Coyle, Sr., and his wife, who testified for the prisoner, in their statement that they were not present at the alleged interview in the jail.
The counsel for the prisoner having, in their opening address to the jury, referred to concussion of the brain from the discharge of a gun, as one of the original causes of the mental disturbances of the prisoner, and introduced evidence tending to show that, from that time, his conduct was such as to indicate nnsoundness of mind, it was we think, proper to inquire of competent witnesses, whether the cause thus assigned, and attempted to be shown, was sufficient to produce the alleged result. The 7th assignment is therefore not sustained.
This brings us to the substantial and important question in the cause, as raised by the 8th and 10th assignments of error.
In the examination of experts it is only necessary to keep constantly in view, that their proper office is to instruct the court and jury in matters so far removed from the ordinary pursuits of life, that accurate knowledge of them can only be acquired by continued study and experience ; the purpose is to enable both court and jury to judge intelligently of the force and application of the facts introduced in evidence, as they would have been able to do if they had been persons properly instructed upon the subjects involved. Expert testimony, owing perhaps to the greater extent of recent scientific research, [132]*132is much more frequently resorted to than formerly, and the rules regulating its introduction may he considered established ; there seems to be no great conflict of authorities on the law applicable thereto.
In cases revolving the question of insanity a medical expert may of course give his opinion based upon personal examination and knowledge of the patient; but where he is not possessed of a personal knowledge, his opinion must as we have said in Rouch v. Zehring, 9 P. F. Smith 74 “be predicated of the facts proved or admitted, or of such as appear in evidence hypothetically stated,” and this must be accepted with some modification.
The credibility of the witnesses is in all cases a question for the jury; what is “ proved ” is for their determination. An expert cannot, therefore, if the witnesses are contradictory, be interrogated as to the effect, produced upon his mind, by all the evidence in the cause; and, upon similar grounds, where the testimony, although not contradictory, is inconsistent or otherwise conflicting, an expert is not allowed to express an opinion upon the effect of it, even assuming the truth of the whole, as the question of the preponderance of the testimony is also for the jury; where the truth of the evidence, in sucii a case, is assumed, or admitted, before the question upon matters of science can arise, the witness must determine a question of fact, which is not a matter of science, and, it is impossible for the jury to determine of what conclusion of fact the opinion of the witness is predicated.
Where the facts are not conflicting however, and are either admitted or proved, the opinion of an expert, being a conclusion drawn from facts that are known, is admissible as a scientific deduction, according to the skill, experience and knowledge of the witness.
The mode of examination which is generally pursued, however, is to interrogate the witness in hypothetical form as to what state of mind is indicated by certain facts assumed, as testified by certain of the witnesses, or by all of them where they are not in conflict. Thus, by means of the hypothesis the jury is enabled to determine by the mere form of the question, what specific facts are assumed by the expert in his conclusions, and of what his opinions are predicated ; and these opinions will be regarded by the jurors in their deliberation, just as they may find the facts assumed in each interrogatory to be true or not. Even hypothetical questions, however, may perhaps be framed in such form as, practically, to call upon the witness to pass upon the merits of the case, and if so framed, they are as objectionable as if they directly interrogated the witness upon the whole case presented. The examination must, of course, [133]
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Mr. Justice Clark
delivered the opinion of the court, January 7th 1884.
The question sought to be raised by the prisoner’s special plea to the jurisdiction, is not properly before us. The rightful authority of a judge, in the full exercise of his public judicial functions, cannot be questioned by any merely private suitor; nor by any other, excepting in the form especially provided by law. A judge de facto assumes the exercise of a part of the prerogative of sovereignty, and the legality of that assumption is open to the attack of the sovereign power alone. If the question may be raised by one private suitor it may be raised by all, and the administration of justice would under such circumstances prove a failure. It is not denied that Judge McLean was a judge de facto, and if so he is a judge de jure as to all parties, except the Commonwealth. The attorney-general representing the sovereignty of the state, by a writ of quo warranto, might properly present this constitutional question for our consideration, but it cannot come before us from any other source, or in any other form. This is not a new question ; it came before this court in Burrell’s Case, 7 Barr 34; and in the case of Clark v. Commonwealth, 5 Casey 128. The same principle is distinctly asserted in Campbell v. Commonwealth, 15 Norris 344; and has been repeatedly applied in many others. This point was not pressed in the oral argument of counsel, but as it was the subject of the second assignment of error, wo have been obliged to dispose of it. As the plea to the jurisdiction could not in any event have [131]*131availed the prisoner, even to raise the question intended, it is not only unnecessary to discuss the grave constitutional question suggested, but the first assignment of error falling with the second, we need make no further reference to either.
The third and fourth assignments of error are withont merit. It was proper for the court, in the exercise of its discretion to allow the witness, John Coyle, Sr., to be recalled for further cross-examination, the offer was in part at least to lay ground for contradiction, and the testimony of Imsweiler was afterwards properly received for that purpose.
Nor can we find any merit in the fifth or sixth assignments. The testimony on the part of the defence, as to the prisoner’s habit of resorting to the woods, and remaining there in an apparently melancholy state was general, not specific, and the Commonwealth was therefore at liberty, by the introduction of specific facts, to explain the causes which on some occasions led to this result. If the proof on part of the prisoner had been of specific instances, the course of examination insisted upon by the prisoner’s counsel, might, perhaps, have been the proper one. The testimony of Philip A. Altland was stricken out of the case by the court, and the jury was instructed to disregard it; but if it had not been stricken out it was certainly competent by the testimony of Jerry Altland, to contradict J ohn Coyle, Sr., and his wife, who testified for the prisoner, in their statement that they were not present at the alleged interview in the jail.
The counsel for the prisoner having, in their opening address to the jury, referred to concussion of the brain from the discharge of a gun, as one of the original causes of the mental disturbances of the prisoner, and introduced evidence tending to show that, from that time, his conduct was such as to indicate nnsoundness of mind, it was we think, proper to inquire of competent witnesses, whether the cause thus assigned, and attempted to be shown, was sufficient to produce the alleged result. The 7th assignment is therefore not sustained.
This brings us to the substantial and important question in the cause, as raised by the 8th and 10th assignments of error.
In the examination of experts it is only necessary to keep constantly in view, that their proper office is to instruct the court and jury in matters so far removed from the ordinary pursuits of life, that accurate knowledge of them can only be acquired by continued study and experience ; the purpose is to enable both court and jury to judge intelligently of the force and application of the facts introduced in evidence, as they would have been able to do if they had been persons properly instructed upon the subjects involved. Expert testimony, owing perhaps to the greater extent of recent scientific research, [132]*132is much more frequently resorted to than formerly, and the rules regulating its introduction may he considered established ; there seems to be no great conflict of authorities on the law applicable thereto.
In cases revolving the question of insanity a medical expert may of course give his opinion based upon personal examination and knowledge of the patient; but where he is not possessed of a personal knowledge, his opinion must as we have said in Rouch v. Zehring, 9 P. F. Smith 74 “be predicated of the facts proved or admitted, or of such as appear in evidence hypothetically stated,” and this must be accepted with some modification.
The credibility of the witnesses is in all cases a question for the jury; what is “ proved ” is for their determination. An expert cannot, therefore, if the witnesses are contradictory, be interrogated as to the effect, produced upon his mind, by all the evidence in the cause; and, upon similar grounds, where the testimony, although not contradictory, is inconsistent or otherwise conflicting, an expert is not allowed to express an opinion upon the effect of it, even assuming the truth of the whole, as the question of the preponderance of the testimony is also for the jury; where the truth of the evidence, in sucii a case, is assumed, or admitted, before the question upon matters of science can arise, the witness must determine a question of fact, which is not a matter of science, and, it is impossible for the jury to determine of what conclusion of fact the opinion of the witness is predicated.
Where the facts are not conflicting however, and are either admitted or proved, the opinion of an expert, being a conclusion drawn from facts that are known, is admissible as a scientific deduction, according to the skill, experience and knowledge of the witness.
The mode of examination which is generally pursued, however, is to interrogate the witness in hypothetical form as to what state of mind is indicated by certain facts assumed, as testified by certain of the witnesses, or by all of them where they are not in conflict. Thus, by means of the hypothesis the jury is enabled to determine by the mere form of the question, what specific facts are assumed by the expert in his conclusions, and of what his opinions are predicated ; and these opinions will be regarded by the jurors in their deliberation, just as they may find the facts assumed in each interrogatory to be true or not. Even hypothetical questions, however, may perhaps be framed in such form as, practically, to call upon the witness to pass upon the merits of the case, and if so framed, they are as objectionable as if they directly interrogated the witness upon the whole case presented. The examination must, of course, [133]*133be confined to the laws and conditions of the specialty in which the expert is skilled, and the hypothesis must be consistent with what appears, or what may be fairly claimed to appear in the proof ; the interrogatories may be propounded from the whole of the evidence if not conflicting, or any part of it; but when facts on one side are in conflict with facts on the other, they ought not, as stated by Aldis, J., in the case of Fairchild v. Bascomb, 35 Vt. 406, to be incorporated in one question, “ but the attention of the witness should be called to their opposing tendencies, and if his skill or knowledge can furnish the explanation which harmonizes them, he is at liberty to state it.”
Mr. Bedfield, in his treatise on the Law of Wills, page 150, says : “ The most convenient mode of putting the inquiry, and the least exceptionable one in our judgment, is to inquire what state of mind is indicated by certain facts assumed or testified by certain witnesses, or in any other hypothetical form of bringing the point of inquiry to the mind of the witness. If the witness says the facts assumed indicate mental unsoundness, he may be inquired of in regard to the state and degree of mental unsoundness thus indicated, and how far it will dis: qualify the person for business, or render him unconscious of the nature of his conduct.”
At the trial of this case, in the court below, the interrogatories to the expert witnesses were put in hypothetical form ; they were so propounded that the jury could without difficulty discover the particular facts upon which the several opinions were given ; whether they were meagerly stated for the opinion of the witnesses thereon was a subject for discussion to the jury. Each side had the right to an opinion from the witness upon any hypothesis reasonably consistent with the evidence, and if meagerly presented in the examination on one side, it may be fully presented on the other; the whole examination being within the control of the court, whose duty it is to see that it is fairly and reasonably conducted.
The questions were perhaps leading in form, but they were not objected to on that ground, nor would this defect in form appear to have produced any mischievous results, if we may judge of this from the results of the cross-examinations.
It is true, perhaps, that what is merely indicated by certain facts may not be shown by them. Although the words “ show ” and “ indicate ” are sometimes interchangeable in popular use, they are not always so. The present ordinary use of the words, discloses a difference in signification and that difference is perhaps more recognizable, when these terms are applied to the law, or to medical science. “To show” is to make apparent or clear by evidence, to prove, whilst an “ indication ” may be [134]*134merely a symptom, that which points to, or gives direction to the mind. The Commonwealth, however, had a right, we think, to inquire in proper form, of a competent export, whether any condition of facts, assumed, either proved or indicated insanity; whether such facts were conclusive, or merely symptomatic, or neither. Although the Commonwealth’s counsel in the several examinations used the word show, the distinction was in each instance fully brought out in the cross-examination.
The 9th assignment of error is to the admission of a portion of the evidence of Dr. J. W. C. O’Neal. It would appear that the prisoner had for a number of years practiced the secret vice of self-abuse, and, on Monday previous to the homicide had applied to. Dr. II. E. Norris for treatment, in an affliction resulting from that vice, which Doctor Norris termed “the loss of manhood.” Dr. Norris, who was called by the prisoner in his examination, and cross-examination, particularly described the conduct, manner and appearance of the prisoner at the time he applied for treatment. In response to a variety of questions he says:
“ Of course I could not see into his mind, into the intricacies, but what I saw of him that Monday morning ; when his condition was called to my attention, he had the appearance of an abject man, almost on the verge of despair.”
Q. “ When was that ?”
A. “ On Monday previous to the commission of this act and I there — well, I took particular notice, and contrasted his appearance then, to all other times, — and I had met him occasionally, as he had been, to the best of my knowledge, under drink — he generally met me, ‘ how are you, doctor ?’ ‘ About as middling’ and ‘give me ten, — I want to get a drink.’ He seemed sad, and with his head down, but at the other times he seemed to be in better spirits.” ¡
Q. “ Do I understand that to be John Coyle’s condition on the Monday morning previous to the act ?”
A. “Ho presented then to be a man — an abject despairing man.”
Q. “ Abject and despairing with his head bowed, and what else ?”
A. “ Soliciting help from me and if not helped would kill himself.”
Q. (By Mr. Swope.) “ When patients come to consult with you — that is, remembering the patient that you spoke of — on occasions as delicate as that, is it not a subject approached with a great deal of reluctance and regret?”
A. “ Generally so.”
Q. “ Is it not the custom of every man, always, to approach that subject with sorrow and regret?”
[135]*135A. “ Sometimes; it is not universal, it is not general. I cannot say that there are no exceptions to that general rule, there may be some, I have had sometimes, but they do not present this invariably, sir, — I cannot say that.”
Dr. O’Neal was called as an expert on the part of the Commonwealth, and was inquired of in rebuttal as follows:
2. “ State whether or not in your practice you are consulted by persons for the loss of manhood, and on account of the secret habit, — this private vice — if so, please indicate how frequently as nearly as you can — and tell the jury, if you please, the way patients approach physicians when they speak about a complaint of such a character as that ?”
The purpose of this offer as stated, was to explain the appearance of the defendant as testified to, by Dr. Norris.
A. “ I am consulted often, and I think I may say through the whole period of my service, in the practice of medicine, that is, the first part of it,” — “ they come characteristically. 'When I say ‘come characteristically,’ I mean approach the subject with a good deal of regret — seem troubled — their countenance indicates largely their situation — they are backward, they approach the subject by degrees — they have expression of unhappiness based upon the fact of their having lost their manhood.”
We cannot agree with the learned counsel for the prisoner that the admissiou of this testimony was error. If the vice of self-abuse has such a peculiarly depressing effect upon the mind, which becomes apparent and obvious to the eye of the expert; if, in general, the conduct and behavior of persons so afflicted, influenced by their mental condition, is “ characteristic’” and peculiar, it is certainly proper for the expert who has the skill from experience to detect it, to describe its external manifestations in the conduct and behavior of the patient. The testimony of Dr. O’Neal had a tendency to explain why, at this particular time, the prisoner presented the appearance of “ an abject and despairing man.”
We have examined with great care the whole record in this case, filed with the writ, and we are unable to find any error upon which we feel justified in reversing the judgment of the court below. The jury have found, after a fair, deliberate, and patient trial, that the prisoner was possessed of a full knowledge of the criminal nature of his act, at the time of its commission, and we cannot disturb their finding. It is our painful duty, therefore, to affirm the judgment.
Judgment affirmed and it is ordered that the record be remitted to the court of Oyer and Terminer of Adams county for the purpose of execution.