The opinion of the court was delivered by
Royce, J.
The respondent was tried on an indictment charging him with the murder of his wife, Gertrude Hayden. He did not controvert the evidence introduced by the State tending to show the killing and the circumstances shown in evidence connected with it, but claimed that at the time of the killing he was insane and not responsible for the act; and introduced evidence tending to show that he was so insane. The State did not introduce any evidence upon the question of his insanity except the testimony of experts and others who gave their opinions upon facts detailed, and it is expressly stated in the exceptions that there was no dispute or conflict in the evidence as to the acts, conduct, and declarations of the respondent which were put in evidence as constituting the facts upon which his insanity was claimed to be established.
The first exception that is now insisted upon is to the ruling of the court in permitting the witnesses Wood, Channel, and Hanson to testify to their opinion upon the question of the respondent’s sanity. It appears that those witnesses were acquainted with the respondent, had seen him frequently and under different circumstances, and the opinions they were permitted to give in evidence were founded upon such acquaintance and knowledge. In Morse [304]*304v. Crawford, 17 Vt. 499, it was held that a witness (not a professional man) who was acquainted with the defendant, and had conversed with him, might give his opinion in evidence upon the question of his sanity in connection with the facts upon which it was founded. And in Cram v. Cram, 33 Vt. 15, it is said that upon a question of insanity witnesses not professional men arc permitted to give their opinion in connection with the facts observed by them. And in Hathaway v. National Life Insurance Co. 48 Vt. 335, it is said that the opinions of persons not experts upon the question of insanity are admissible in this State based upon facts that are within their knowledge and observation, they being testified to with facts as the basis of their opinions. Upon the authority of those cases and others that might be cited, the evidence was admissible, and the weight to be given to it was a question for the jury, considering the facts testified to upon which the opinions given in evidence were based.
The second exception is as to the ruling of the court in permitting the question to be put to and answered by Dr. Draper (a medical expert) as the case shows that it was put and answered. There is no occasion here to discuss the ground and reasons upon which the testimony of medical experts upon questions of sanity is universally held to be admissible, as the only question upon this exception is, whether the rules of law have been observed in the way and manner of admitting the evidence. It appears that Dr. Draper was present in court and heard all the facts relating to the respondent’s acts and conduct claimed to indicate insanity which had been put in evidence ; and it is important to notice in this connection that the case finds that there was no dispute or conflict in the evidence as to such acts and conduct. He was then asked : “ Supposing all these facts you have heard testified to in this case by the defendant’s witnesses and the plaintiff’s witnesses are true, what is your opinion, do you think he was sane or insane at the time of the alleged murder ?” The question was objected to by the counsel for the respondent, and it was claimed that a question should be put to the witness including a statement of the facts developed in the case, and that he should not be given the entire scope of the case. The case of Fairchild v. Bascomb [305]*305is much relied upon by the counsel for the respondent, as an authority upon this question. That case, we think, is clearly distinguishable from this. In that, the evidence bearing upon the question of the sanity of the testatrix was conflicting; in this, as we have seen, there was no conflict. The question put to Dr. Rockwell in that case was substantially like the one put to Dr. Draper, but in answering the question he was required to find conclusions from the evidence in order to reconcile conflicting facts, and that was the exclusive duty of the jury. If there had not been any conflict in the evidence in. that case, it is apparent that the judgment would not have been reversed, for Judge Aldis says, “ We have no doubt that a medical witness who has heard the testimony may give his opinion as to the sanity or insanity of a party as indicated by any given state of facts, so long as such facts are warranted by the evidence, and are not conflicting ” ; and that in some cases all the facts bearing upon the issue might be summed up in a single question. Here the question was put upon the assumption that all the facts put in evidence bearing upon the question of the respondent’s sanity were true — they constituted the facts upon which he was to predicate and give his opinion. In answering the question he was not called upon to weigh or reconcile conflicting evidence. His opinion was based upon the assumed existence of the facts referred to in the question, and its value as evidence was dependent upon the actual existence of such facts. It is not denied but that hypothetical questions might have been put to Dr. Draper based upon any evidence in the case tending to show the sanity or insanity of the respondent; and upon the authority of Gilman v. Strafford, decided at the last term in Orange County, it would have been competent to-have inquired of him what his opinion was, based upon the testimony of each witness (assuming that the testimony was true) who had testified to facts tending to show sanity or insanity. Hence there was no error in permitting the question to be put in the form in which it was, and with the right of the respondent upon cross-examination to get the opinion of the witness upon any phase of the evidence, and upon each and all of the facts tending to show his insanity. [306]*306No legal right pertaining to his defense could have been jeoparded by permitting it.
What has been said is applicable to the exception taken to the testimony of Dr. Brown, except that the further objection was made to his testifying that he had not heard all the evidence. It was not necessary to the admissibility of his evidence that he should have heard it all. The same objection was made to testimony of the experts in Gilman v. Strafford. In that case the deposition of the plaintiff was read to or by the experts, and they were asked .to give an opinion on the supposition of the truth of the facts deposed to. There was a large amount of testimony .in the case upon the same subject-matters testified to in the deposition, and it was claimed that it was not permissible to put in evidence the testimony of an expert based upon the testimony of any one witness ; but the court held otherwise.
The respondent, for the purpose of showing his insanity, introduced evidence tending to show strange and unaccountable conduct on his part, and that he was sick and greatly prostrated while in jail at Irasburgh, a few days after the homicide. To rebut this evidence the State introduced Dr. Brown as a witness, and asked him whether he thought respondent’s condition was feigned or otherwise. Upon objection being made that the witness was not present when the respondent was taken down with the sickness in question, the witness testified that the respondent detailed to him his feelings and symptoms, and he was then permitted to answer the question.
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The opinion of the court was delivered by
Royce, J.
The respondent was tried on an indictment charging him with the murder of his wife, Gertrude Hayden. He did not controvert the evidence introduced by the State tending to show the killing and the circumstances shown in evidence connected with it, but claimed that at the time of the killing he was insane and not responsible for the act; and introduced evidence tending to show that he was so insane. The State did not introduce any evidence upon the question of his insanity except the testimony of experts and others who gave their opinions upon facts detailed, and it is expressly stated in the exceptions that there was no dispute or conflict in the evidence as to the acts, conduct, and declarations of the respondent which were put in evidence as constituting the facts upon which his insanity was claimed to be established.
The first exception that is now insisted upon is to the ruling of the court in permitting the witnesses Wood, Channel, and Hanson to testify to their opinion upon the question of the respondent’s sanity. It appears that those witnesses were acquainted with the respondent, had seen him frequently and under different circumstances, and the opinions they were permitted to give in evidence were founded upon such acquaintance and knowledge. In Morse [304]*304v. Crawford, 17 Vt. 499, it was held that a witness (not a professional man) who was acquainted with the defendant, and had conversed with him, might give his opinion in evidence upon the question of his sanity in connection with the facts upon which it was founded. And in Cram v. Cram, 33 Vt. 15, it is said that upon a question of insanity witnesses not professional men arc permitted to give their opinion in connection with the facts observed by them. And in Hathaway v. National Life Insurance Co. 48 Vt. 335, it is said that the opinions of persons not experts upon the question of insanity are admissible in this State based upon facts that are within their knowledge and observation, they being testified to with facts as the basis of their opinions. Upon the authority of those cases and others that might be cited, the evidence was admissible, and the weight to be given to it was a question for the jury, considering the facts testified to upon which the opinions given in evidence were based.
The second exception is as to the ruling of the court in permitting the question to be put to and answered by Dr. Draper (a medical expert) as the case shows that it was put and answered. There is no occasion here to discuss the ground and reasons upon which the testimony of medical experts upon questions of sanity is universally held to be admissible, as the only question upon this exception is, whether the rules of law have been observed in the way and manner of admitting the evidence. It appears that Dr. Draper was present in court and heard all the facts relating to the respondent’s acts and conduct claimed to indicate insanity which had been put in evidence ; and it is important to notice in this connection that the case finds that there was no dispute or conflict in the evidence as to such acts and conduct. He was then asked : “ Supposing all these facts you have heard testified to in this case by the defendant’s witnesses and the plaintiff’s witnesses are true, what is your opinion, do you think he was sane or insane at the time of the alleged murder ?” The question was objected to by the counsel for the respondent, and it was claimed that a question should be put to the witness including a statement of the facts developed in the case, and that he should not be given the entire scope of the case. The case of Fairchild v. Bascomb [305]*305is much relied upon by the counsel for the respondent, as an authority upon this question. That case, we think, is clearly distinguishable from this. In that, the evidence bearing upon the question of the sanity of the testatrix was conflicting; in this, as we have seen, there was no conflict. The question put to Dr. Rockwell in that case was substantially like the one put to Dr. Draper, but in answering the question he was required to find conclusions from the evidence in order to reconcile conflicting facts, and that was the exclusive duty of the jury. If there had not been any conflict in the evidence in. that case, it is apparent that the judgment would not have been reversed, for Judge Aldis says, “ We have no doubt that a medical witness who has heard the testimony may give his opinion as to the sanity or insanity of a party as indicated by any given state of facts, so long as such facts are warranted by the evidence, and are not conflicting ” ; and that in some cases all the facts bearing upon the issue might be summed up in a single question. Here the question was put upon the assumption that all the facts put in evidence bearing upon the question of the respondent’s sanity were true — they constituted the facts upon which he was to predicate and give his opinion. In answering the question he was not called upon to weigh or reconcile conflicting evidence. His opinion was based upon the assumed existence of the facts referred to in the question, and its value as evidence was dependent upon the actual existence of such facts. It is not denied but that hypothetical questions might have been put to Dr. Draper based upon any evidence in the case tending to show the sanity or insanity of the respondent; and upon the authority of Gilman v. Strafford, decided at the last term in Orange County, it would have been competent to-have inquired of him what his opinion was, based upon the testimony of each witness (assuming that the testimony was true) who had testified to facts tending to show sanity or insanity. Hence there was no error in permitting the question to be put in the form in which it was, and with the right of the respondent upon cross-examination to get the opinion of the witness upon any phase of the evidence, and upon each and all of the facts tending to show his insanity. [306]*306No legal right pertaining to his defense could have been jeoparded by permitting it.
What has been said is applicable to the exception taken to the testimony of Dr. Brown, except that the further objection was made to his testifying that he had not heard all the evidence. It was not necessary to the admissibility of his evidence that he should have heard it all. The same objection was made to testimony of the experts in Gilman v. Strafford. In that case the deposition of the plaintiff was read to or by the experts, and they were asked .to give an opinion on the supposition of the truth of the facts deposed to. There was a large amount of testimony .in the case upon the same subject-matters testified to in the deposition, and it was claimed that it was not permissible to put in evidence the testimony of an expert based upon the testimony of any one witness ; but the court held otherwise.
The respondent, for the purpose of showing his insanity, introduced evidence tending to show strange and unaccountable conduct on his part, and that he was sick and greatly prostrated while in jail at Irasburgh, a few days after the homicide. To rebut this evidence the State introduced Dr. Brown as a witness, and asked him whether he thought respondent’s condition was feigned or otherwise. Upon objection being made that the witness was not present when the respondent was taken down with the sickness in question, the witness testified that the respondent detailed to him his feelings and symptoms, and he was then permitted to answer the question. There was no error in permitting the question to be answered. It was putting in evidence the opinion of an expert based upon his own knowledge and observation, aided by what was said to him by the party, of his feelings and symptoms.
This disposes of all the exceptions that were taken upon the trial which are now insisted upon; and none of them are sustained.
The only ground upon which the respondent claims a new trial is for the reason, as alleged in the petition, that William Chamberlain, one of the jurors who tried said cause, had, previous to the trial, formed and expressed an opinion upon the merits of said . [307]*307cause which was adverse to the petitioner, and was to the effect that he was guilty of the murder charged against him, and ought to be hung in the most summary manner. The first question to be considered is, do the proofs sustain the allegations in the petition ? The petitioner relies upon the affidavits of George Clark, Solomon W. Eaton, W. L.- Russell, and Henry E. Jackman. These affidavits were taken October 5, 1877, and in them.the witnesses profess to relate a part of a conversation that they had with the juror about a year before that time, and soon after the homicide was committed.
The State introduced the affidavits of the same witnesses taken at a different time, and the affidavit of the juror. The affidavits introduced by the petitioner tend to show that the juror said that the petitioner ought to have been strung up, or hung, without judge or jury before he left Derby Line. In order to understand what was said, and the circumstances under which the expressions attributed to the juror were uttered, it is necessary to consider all the affidavits together; and, when thus considered, it is found that what the juror said as indicating his opinion was based wholly upon what the witnesses making the affidavits then communicated to him. He had no authentic information upon the subject, and it is to be observed that he did not in terms express any opinion of the prisoner’s guilt. The question of his sanity does not appear to have been alluded to, and upon his trial that was made the issue upon which his guilt or innocence was to be determined. There is no proof that the juror had any information upon that subject previous to the trial, or had formed an opinion upon the question. The object of the rule which makes the formation and expression of an opinion a disqualification of a juror is, to secure a fair and impartial trial, and that parties shall not be bound by verdicts rendered by jurors who have prejudged the case. The opinion, to disqualify, must be an unqualified one, and based upon something more substantial than mere rumor.
In State v. Clark, 42 Vt. 629, the expression of opinion that it was held disqualified the juror was an unqualified opinion as to the guilt of the respondent, and was formed on reading a newspaper account of his examination before the magistrate.
[308]*308Whatever the juror xuay have said upon the occasions referred to in the affidavits was based upon the unsworn statements then made in his hearing; and if, upon the information he then had, he had an impression that the prisoner was guilty, the presumption is that such an impression would yield to evidence delivered under the solemnities of an oath. And in confirmation of this the juror in his affidavit states that, at the time he was empannelcd, he was not aware of any prejudice in his mind against the petitioner, or that he had ever formed or expressed an opinion as to his guilt or innocence ; that he is very confident that he never said that the petitionei- ought to have been strung up without judge or jury before he left Derby Line ; that he has no recollection of ever having said any such thing, or had any such feeling.
We do not think that the evidence shows the formation and expression of such an opinion as legally disqualified the juror. And upon a full and careful consideration of the case as developed by the exceptions, petition and proofs, it appears to us that the petitioner has had the full benefit of all the rights which the constitution and laws of the State secure to him in making his defence against the charge which was preferred against him.
The petition is dismissed, the respondent takes-nothing by his exceptions, and judgment is rendered upon the verdict.