author:
Froessel, J. Burke, J. (concurring).
      Dye, J. (dissenting).

text:
    The People of the State of New York, Respondent, v. Thomas J. Higgins, Appellant.
    Argued November 19, 1958 ;
    decided April 17, 1959.

      Arthur Karger for appellant.
    I. Defendant was deprived of his right to a fair trial because of the many questions asked by the Trial Judge which indicated a communicable disbelief of the defense position, and by reason of various erroneous statements made by the Trial Judge in his charge. (People v. Mendes, 3 N Y 2d 120; People v. Barber, 115 N. Y. 475; People v. McElvaine, 121 N. Y. 250; People v. Leyra, 1 N Y 2d 199; People v. Gezzo, 307 N. Y. 385; People v. Elmore, 277 N. Y. 397; People v. Nusso, 294 N. Y. 227; People v. Zackowitz, 254 N. Y. 192; People v. Hetenyi, 304 N. Y. 80; People v. Samuels, 302 N. Y. 163.) II. It was error for the trial court to permit cross-examination of the defense medical experts as to whether defendant knew the nature and quality of each of his acts and knew that they were wrong, when he was necking and petting with the Buland girl. (People v. Posner, 273 N. Y. 184; People v. Tassiello, 300 N. Y. 425; People v. Nuzzo, 294 N. Y. 227; People v. Hetenyi, 304 N. Y. 80.) III. A new trial should be ordered in the interests of justice because of the Trial Judge’s failure to charge the jury that, in passing on the issues of intent, premeditation and deliberation, they could consider whether defendant was intoxicated at the time of the homicide. (People v. Van Zandt, 224 N. Y. 354; People v. Koerber, 244 N. Y. 147.) IV. The jury’s verdict was against the weight of the evidence. (People v. Legra, 1 N Y 2d 199.) V. The admission in evidence of the question and answer statements made by defendant was in violation of the due process clause of the Fourteenth Amendment to the United States Constitution. The Trial Judge should at least have charged the jury to take into consideration the unlawful delay in arraignment, in passing upon the voluntariness and truthfulness of such statements, particularly the second statement. (Mallory v. United

      States, 354 U. S. 449; Payne v. Arkansas, 356 U. S. 560; Fikes v. Alabama, 352 U. S. 191; People v. Spano, 4 N Y 2d 256; Stein v. New York, 346 U. S. 156; People v. Alex, 265 N. Y. 192; People v. Elmore, 277 N. Y. 397; People v. Malinski, 292 N. Y. 360.)

      Edward S. Silver, District Attorney (William I. Siegel of counsel), for respondent.
    I. Appellant’s guilt of murder in the first degree was established beyond a reasonable doubt. (People v. Furlong, 187 N. Y. 198; People v. Place, 157 N. Y. 584; People v. Conroy, 97 N. Y. 62; People v. Gorski, 236 N. Y. 673; People v. Deitsch, 237 N. Y. 300; People v. Birnbaum, 208 App. Div. 476; People v. Driscoll, 107 N. Y. 414; Greenfield v. People, 85 N. Y. 75; People v. Leyra, 1 N Y 2d 199.) II. The confessions to the District Attorney were properly received by the jury. There was no delay in arraignment. (Lyons v. Oklahoma, 322 U. S. 596; Stein v. New York, 346 U. S. 156; Mallory v. United States, 354 U. S. 449; Payne v. Arkansas, 356 U. S. 560; Fikes v. Alabama, 352 U. S. 191; Stroble v. California, 343 U. S. 181; Brown v. Allen, 344 U. S. 443; People v. Spano, 4 N Y 2d 256.) III. The confession to the District Attorney was properly before the jury. No error was committed by the trial court. (People v. Perez, 300 N. Y. 208; People v. Leyra, 302 N. Y. 353; People v. Meyer, 162 N. Y. 357; People v. White, 176 N. Y. 331; People v. Randazzio, 194 N. Y. 147; People v. Doran, 246 N. Y. 409; People v. Weiner, 248 N. Y. 118; People v. Pignataro, 263 N. Y. 229; People v. Elmore, 277 N. Y. 397; People v. Peller, 291 N. Y. 438.) IV. The defense of insanity based upon epilepsy is without any foundation in the record. (People v. Burgess, 153 N. Y. 561; People v. Furlong, 187 N. Y. 198; People v. Horton, 308 N. Y. 1.) V. Cross-examination of defense medical witnesses did not exceed permissible limits. VI. The trial court’s charge omitted no element which should have been properly included. (People v. Price, 262 N. Y. 410; People v. McLaughlin, 291 N. Y. 480; People v. Koch, 299 N. Y. 378; People v. Silverman, 3 N Y 2d 200; People v. Hull, 251 App. Div. 40; People v. Goldstein, 251 App. Div. 896; People v. Gordon, 262 App. Div. 534; People v. Girardi, 2 A D 2d 701; People v. Schmidt, 216 N. Y. 324; People v. Van Zandt, 224 N. Y. 354; People v. Koerber, 244 N. Y. 147 ; People v. McCormack, 278 App. Div. 191, 303 N. Y. 782.) VII. Appellant was accorded a fair trial. (People v. Mendes, 3 N Y 2d 120; People v. von Brandenburg, 241 N. Y. 128; People v. Gaimari, 176 N. Y. 84; People v. Star Co., 135 App. Diy. 517; People v. Hoch, 150 N. Y. 291; People v. Webster, 139 N. Y. 73.)
   Froessel, J.

Defendant, a 22-year-old epileptic, was convicted of murder in the first degree and sentenced to death. He was charged with causing the death, on the night of April 17, 1957, of Patricia Buland, a girl of 19, by striking her face and head with a hammer at least 19 times while they were seated together in the rear seat of his automobile in the County of Kings.

On his arraignment, he entered a plea of not guilty with a specification of insanity. He sought to establish at the trial that at the time of the homicidal assault on decedent he was in the throes of an epileptic rage or furor attack, and consequently was laboring from such a defect of reason as not to know the nature and quality of the act or that it was wrong.

Defendant was employed as an oil burner installation and service mechanic. His education consisted of attendance at elementary school, from which he was graduated at the age of 15%, after having been “left back ” several times, and one year of vocational high school. He had an I.Q. of 80, and was described by one of the defense psychiatrists as “ a high grade moron intellectually ”.

The facts pertaining to the homicide are in large measure undisputed, and there was no real issue at the trial as to whether defendant had, in fact, committed the homicide. Defendant spent most of the evening in question drinking with friends. He had 15 to 20 beers, either alone or, as he claimed, “ chased ” by ryes, had eaten nothing since he had a sandwich at 11:00 a.m., and was feeling “high”, but not drunk. After leaving his friends and returning to his car, he noticed decedent crossing the street and offered her a “ lift ” at about 10:25 p.m. He had known her for about two months but had never “ dated” her, and was in fact engaged to be married to another girl.

After decedent entered his car — a green Ford belonging to defendant’s employer, which defendant was permitted to use — they drove to the street on which decedent lived, where they parked, talked and started kissing. About five minutes later they drove further down the same street, parked again, resumed kissing and ‘1 necking ’ ’, and then went into the back seat, where they continued their lovemaking, and decedent’s undergarments were removed.

Defendant gathered that decedent was willing to engage in an act of sexual intercourse with him, whereupon she said No, not yet ’ ’, that she would like to go for some drinks. By his own statement, defendant at about this time picked up a ball-peen hammer which, along with other tools and a small tool box he used in his work, was always kept on the car floor in front of the back seat; he started swinging and struck decedent on the face and head at least 19 times. Defendant thereafter returned to the front seat, drove the car to 94th Street and Marine Avenue, placed decedent on the curb, and then drove home and went to sleep. The next day he placed the hammer in the trunk of the car, deposited in a garbage can decedent’s shoes and pocketbook, which, together with the hammer, he had found in the back seat, and purchased a new set of slip covers, which he placed on the back seat the following morning to cover the bloodstains.

Decedent was discovered lying partly on the sidewalk and partly on the street by a passerby at about 11:30 p.m. The latter testified that she saw what appeared to be a green Studebaker maldng a right turn at the corner. Decedent was wearing a fur coat and a dress and was naked from the waist down. She was lying on her back moaning, moving her arms and legs, but not responding to questions, and was bleeding profusely from the head. She was removed to Coney Island Hospital at about 12:30 a.m., where efforts to save her life proved fruitless, and she died about three hours later. An autopsy was performed on the body and the cause of death was attributed to multiple lacerations of the scalp and face and multiple fractures of the skull, with cerebral lacerations and contusions, with hemorrhage ’ ’. The medical examiner who performed the autopsy enumerated 19 contusions, lacerations and abrasions, concluding that at least 19 blows were struck and possibly more, since “ one blow could be superimposed upon the other, and make it difficult to distinguish”. There was no evidence of abrasions, contusions or semen around decedent’s genitalia.

On Saturday, April 20th, three days after the homicide, two police officers interviewed defendant at his place of business. Defendant gave a strained account of Ms whereabouts on the night of the slaying, and after the officers discovered bloodstains in the car they took defendant to police headquarters, where, in one oral statement and two question and answer statements, he admitted striking the girl with the hammer and disposing of her body. He was arraigned the following morMng in Felony Court.

Defendant took the stand in his' own behalf and testified that when decedent said “No, not yet”, he suddenly felt dizzy, experienced a pounding sensation in Ms head and started shaking. The next tMng he remembered was hearing a screeching of brakes and someone yelling at him, and he became aware of the fact that he was driving on the wrong side of the street and had had a near collision with a car approacMng from the opposite direction. A few minutes later, when he turned around to see if a car was behind him, he saw decedent in the back seat. He “ didn’t know what to do ” and “ figured I better take her home or take her some place ”. He remembered taking her out of the car and putting her on the curb, but did not remember whether she was breathing, moaning or bleeding at the time.

Defendant further testified that when he found the girl’s pocketbook in the car, he remembered that she had been with him the previous evening. He saw the spots on the seats and thought that he must have done something, so he disposed of the pocketbook in a garbage can and bought new seat covers to cover the stains. After hearing the details of the crime on the radio and reading them in the newspapers, he assumed that he had done it and hence initially lied to the police about his whereabouts, etc.

The defense sought to establish that defendant was a chronic epileptic, had suffered several violent “ fits ” in recent years, and had delivered the fatal blows while in the throes of another such violent seizure. Several witnesses testified to nine “ fits ” which they saw defendant suffer: one in 1952, six in 1953 and two in 1955, while in the Army. All but two or three were preceded by beer or liquor drinking and generally nothing to eat. The two seizures described in greatest detail were suffered in front of a moving picture theatre and at a church dance. One witness described the former as follows: “ Well, we were sitting there on the steps, talking, me and Tommy, and Tommy started shaking. Then he stood up and he started hanging wall with his fists. Then he started cracking his head against the wall. And then he fell and was like unconscious, and the police came.” (Emphasis supplied.) 'When the police arrived he became violent again, picked up one or two of the officers, threw them off and started swinging.

At the church dance, while conversing with a priest, defendant started shaking, fell to the ground, and struck the priest on the shoulder when the latter tried to help him. He was hitting his head and fists against the ground, swinging like a fighter at the people dancing and at anybody in front of him, and kicking and trying to fight off several people who were attempting to hold him down. A policeman handcuffed him to a bannister, but defendant continued swinging and smashed his other hand through a wire-glass window.

The other seven observed seizures occurred at a basketball game, in front of a luncheonette, at a party, twice in his fiancee’s home, in his army barracks, and outside a bar in Japan. Defendant’s behavior pattern was very similar: he would start shaking and swinging out violently before or after falling to the ground, foam at the mouth, and swing his arms wildly in all directions, striking out at anyone who came near him. On one occasion he struck a friend on the chin, and on another grabbed someone by the shirt and started tightening up on the collar. It would often take several people to hold him down, seven on one occasion. He broke out of a strait jacket during one fit, and out of a clothesline tied around him during another.

The violent stage generally lasted for 15 or 20 minutes or a half hour, and was followed by a period of confusion lasting anywhere from 15 minutes to several hours, during which time he could not be “reached”. When he came out of this confused state, he sometimes would remember nothing of what had transpired from the onset of the seizure through the period of confusion; at other times he would remember portions of what happened, such as shaking, swinging, passing out or throwing himself on the floor, hitting the floor with his hand, and people holding him down. He often asked what had happened and what he had done, and was provided with the details. He was taken to a hospital after most of these attacks, and both the civilian and military medical records diagnosed most of the seizures as epileptic fits. As the trial court itself stated during the course of the trial, ‘ ‘ I take the liberty of saying that this defendant is an epileptic, according to the record; that is without any doubt ”.

Three medical experts testified for the defense: (1) Dr. John H. Taterka, a specialist in neurology and psychiatry. He was head of the epilepsy clinic at Bellevue Psychiatric Hospital, had treated thousands of epileptic cases, and was described by one of the other defense experts as one of the leading authorities on epilepsy in the world ”. (2) Dr. Albert A. La Verne, a specialist in psychiatry, but not a certified neurologist, whose qualifications included the position of senior psychiatrist at the Psychiatric Division of Bellevue. He had observed from 8 to 12 epileptic furor attacks during the course of his medical practice, and had treated some 200 or 300 epileptics. (3) Dr. Richard H. Hoffman, who had specialized in neuropsychiatry for some 40 years, had served, among other things, as psychiatric expert to four District Attorneys of Nassau County, appearing for the People in over 50 murder trials, and had observed at least six epileptic fits of the furor type.

These three experts examined defendant numerous times and, in accordance with recognized procedure for determining epilepsy, subjected him to a variety of physical, neurological and psychological tests. All these tests proved essentially negative, except for a condition of hyperinsulism (low blood sugar — direct opposite of diabetes), definite but mild evidence of intellectual deterioration and brain damage.

On October 11th, while the trial was in progress, they performed a so-called alcohol provocative test on defendant in Kings County Hospital. This was a standard test used in a suspected case of epilepsy ” and is what is called a provocative test in so far if the routine tests are negative [as they are in a substantial percentage of known epileptics] and we suspect epilepsy, then we use provocative agents for the purpose of triggering off a mild epileptic reaction ’ ’. It was accepted procedure to use alcohol as a provocative, and it was used here because defendant’s medical history showed that most of his seizures had occurred after drinking.

Defendant arrived at the hospital at about 2:45 p.m., and was placed in a half sitting position on a reclining chair. Electroencephalograph equipment (hereinafter called EEG), designed to electrically record brain impulses and a standard procedure in epilepsy cases, was placed on his head. After a blood sugar test was made, he was given a mixture composed of 3 ounces of rye whiskey, 3 ounces of orange juice and 3 teaspoons of sugar. Thirty minutes later he was given a second mixture with the same ingredients.

■ Nine minutes after he drank the second mixture he suffered a seizure. His lips started quivering, his left hand began shaking and the EE-G wires came off his head. His whole body then went into motion and he slid partially off the chair. He then started shaking his head very wildly and banged it against the chair. He became so violent that four correction officers could not hold him down and had to handcuff one of his arms to the chair. He fought these and other officers and shouted and screamed unintelligibly. His pupils were dilated and his reaction to light was sluggish. After this violent state subsided, defendant was bewildered and dazed. It was not possible to communicate with Mm for some 30 minutes, and he was confused and exhausted. Defendant was unable to remember anything that had transpired during the violent phase of the attack or during the period of confusion that followed.

Dr. Taterka diagnosed the seizure suffered by defendant as “ a combination of a grand mal spell * * * followed by or combined with a spell of rage, of 'furor ”. He explained that there were four main types of epilepsy: (1) grand mal, or the convulsive type which is characterized by total amnesia and during which the individual is flat on his back, completely helpless and unable to perform any skillful or co-ordinated movements; (2) petit mal, which is a mild spell of brief duration prevalent in children; (3) psychomotor, during which the patient is out of contact but has seemingly purposeful movements, and (4) thalamic or hypothalamic epilepsy, which “is characterized by strange attacks, fitting in no one of these patterns mentioned, and * * * rage or fury attacks, wMch may be combined with a convulsion ”. This type of epilepsy, “ recognized as a special form ”, is so named because it involves the thalamus, a “ very important structure ” at the bottom of the brain, wMch “ transmits sensation, feelings of pain, and touch”, and “also has to do with emotional reactions”, Although ‘ ‘ only recently studied ’ ’ and classified in medical literature under this name, there were a great many verified cases of such furor attacks, with some 427 cases reported in an authoritative text on epilepsy. In contrast with the grand mal or convulsive type, hypothalamic epilepsy may be characterized by partial as well as complete amnesia, with the individual sometimes able to partially recollect the seizure. During the violent stage of a hypothalamic attack, the individual is capable of performing skillful, co-ordinated movements and may, in his wild movements, aim skillfully.

In answer to hypothetical questions, each of the defense experts testified that he was reasonably certain that defendant suffered an epileptic attack of the hypothalamic type while in the back seat of the car with decedent, and that when he struck her with the hammer he was laboring from such a defect of reason as not to know the nature and quality of his act or that it was wrong. Dr. Hoffman was of the opinion that defendant’s condition of hyperinsulism triggered the epileptic attack, V showing itself in a form which did not take the convulsive form, but the form of cerebral agitation spreading through into the emotional centers, and depriving him of reason, and putting him into a reflex condition where he acted without thinking, without feeling and without knowing.”

Two expert witnesses, neither of whom had ever examined defendant, testified for the People in rebuttal: (1) Dr. Melvin D. Yahr, a neurologist specializing in epilepsy, Associate Professor of Neurology at Columbia Hospital College of Physicians and Surgeons and Associate Attending Neurologist at the New York Neurological Institute, who saw 30 to 40 epileptics almost every week and was, among other things, epilepsy consultant for the State of New Jersey. (2) Dr. David Abrahamsen, a neuropsychiatrist who considered himself a specialist only in psychiatry, who had been connected with epilepsy clinics in Europe in the 1930’s and considered himself an expert on epilepsy as so far is concerned with crimes or offenses ” and who, among other things, had written several books dealing with the treatment and rehabilitation of criminals.

In answer to hypothetical questions, Dr. Yahr testified that he “ can not say from that whether [defendant] did have a seizure at that time, no ” (while in the back seat of the car with decedent), nor could he express an opinion on defendant’s sanity at that time, inasmuch as he was only a neurologist and not a psychiatrist. Dr. Abrahamsen, however, in answer to hypothetical questions, testified (1) that he did not believe that defendant had had an epileptic attack, and (2) that, when he struck decedent with the hammer, he knew the nature and quality of his act and that it was wrong.

As the trial court properly instructed the jury, it was incumbent upon the People to prove beyond a reasonable doubt that, at the time he committed the homicidal assault, defendant knew the nature and quality of his act and that it was wrong (People v. Kelly, 302 N. Y. 512, 515). In the context of this case this meant that the People had to prove beyond a reasonable doubt that, at the time he struck decedent, defendant was not in the throes of an epileptic furor attack, inasmuch as all the experts agreed that during such a seizure a person is incapable of forming an intent or premeditating, and since the uncontradicted. testimony of the defense experts was that a person suffering such an attack is laboring from such a defect of reason as not to know the nature and quality of his act or that it is wrong.

The People relied principally on two items as proof that defendant did not strike decedent during an epileptic furor attack: (1) that a person suffering such an attack would not be capable of picking up a hammer, inflicting at least 19 well-aimed blows to the face and head of the victim, and thereafter (a period of about 40 minutes) drive a standard shift car a substantial distance. Dr. Abrahamsen emphasized that returning to the front seat after having struck decedent, starting the car, shifting, driving around and disposing of the body were all “ coordinated events ” which “ would absolutely contradict a seizure or a fit of any type ”. (2) Defendant’s statements to the authorities, insofar as they evidenced a memory of how and why he hit decedent, were inconsistent with a prime characteristic of any type of epileptic fit, namely, an inability to remember what happened during the seizure. In this connection, Dr. Abrahamsen testified that if defendant had had a genuine epileptic fit he would not have remembered picking up the hammer and hitting decedent as he said he did, and Dr. Yahr attributed his inability to state whether defendant had had a seizure partly to the fact that the assumptions in the hypothetical question evidenced a “ total recollection of a great deal of * * * events ” which “would be an unusual characteristic for anybody having a seizure ’ ’.

So far as item (1) is concerned, even the defense experts conceded that during a grand mal seizure the person is flat on his back (here he would be in the back seat of the car), completely helpless and incapable of performing any co-ordinated movements; Drs. Taterka and La Verne testified that during the early stages of the seizure they induced, defendant absolutely could not have picked up a hammer and inflicted 19 blows. The nature of defendant’s past attacks, however, and the uncontradicted medical testimony from the only doctors who examined him established that he suffered from a type of epilepsy known scientifically as thalamic or hypothalamic, or what Dr. Yahr, one of the People’s experts, termed “focal seizures ”, characterized by wild and violent attacks fitting into no coherent pattern. Dr. Yahr himself testified that the closest thing to a positive test in determining epilepsy was “ the witnessing of a seizure by a trained observer ”. During a hypothalamic seizure, the person is capable of performing skillful, co-ordinated movements, and both Drs. Taterka and La Verne testified that, in the furor stage of the seizure they observed, defendant could have picked up a hammer and “ skillfully directed it in attacking any person, myself, or a correction officer, because he had no way of knowing whom he was hitting.” During this stage,1 ‘ It was a question of restraining this patient, to keep him from injuring ffimself or hurting others ” (emphasis supplied), and this is borne out by the character of his past seizures, when it took as many as seven persons to hold him down. Moreover, at the time defendant was alleged to have suffered the seizure on the night of the crime, he was sitting in close proximity to decedent in the back seat of a car, and the pattern of his former attacks is consistent with his having struck out violently at her.

As early as 1889, in People v. Barber (115 N. Y. 475, 489-490), this court recognized that an individual was capable of committing a homicide during an epileptic furor attack, and that the defense of insanity “was one most proper to be urged, and required most deliberate and careful consideration.” (See, also, People v. Furlong, 187 N. Y. 198, 207-208, 211.) The Barber case involved a violent assault upon two persons, followed by a burning of the house, in which they lay helpless, resulting in the death of one of them. The defense sought to establish that at the time of the assault and the setting fire to the house defendant 1‘ was under the influence of epileptic furor, caused by epilepsy, and that his acts were the unconscious and uncontrollable result of epileptic mania” (p. 488). To sustain the defense, evidence was introduced that defendant had an inherited predisposition to epilepsy ”, and had suffered violent epileptic attacks in his childhood, although not for 18 years preceding the commission of the offense in question (pp. 488-490). This court unanimously reversed the conviction of murder in the first degree and ordered a new trial. In light of this case, and on the basis of the expert testimony and other evidence in the record before us, the weight of the evidence supports the view that defendant was physically capable of picking up the homicide weapon and inflicting the deadly blows upon decedent during an epileptic furor attack.

The weight of the evidence also supports the view that defendant was capable, during the post-epileptic eonfusional state following such an attack, of returning to the front seat of the car and driving it to the street where he disposed of the body. Both of the People’s experts conceded that this eonfusional state could include automatic-type behavior, and Drs. Taterka and La Verne testified unequivocally that the driving of a car was an automatic, reflex-type activity which was consistent with the eonfusional state of an epileptic rage attack. Dr. La Verne stated that one could start, shift and drive a car without having “ all of his faculties functioning and intact ”, since it required only “ recall reflex, automatic movement and behavior ”, and that “ it has been demonstrated in humans and animals, that complicated coordinated movements are done reflexly ’ ’. And Dr. Taterka testified: “I have seen cases where, for example, a taxi driver drove right through a spell ” (emphasis supplied).

The evidence which the People contend was most damaging to the defense claim of an epileptic seizure related to defendant’s statements to the police, insofar as they evidenced a recollection of how and why he struck decedent. Although an epileptic fit of the furor, as opposed to the grand mal, type may be characterized by a partial as well as a complete amnesia, and the testimony as to defendant’s prior seizures indicated that he remembered portions of what happened, all the experts agreed that a substantial recollection of what happened was inconsistent with defendant’s having suffered any type of seizure.

An examination of defendant’s statements, however, shows that he had anything but a clear memory of how and why he committed the homicide. The only aspect of the assault he seemed to remember was picking up a tool—which he thought “must have been ” the hammer shown to him by the police — and swinging it, after he started to shake, when a “ funny feeling” came over him and he felt a pounding in his head. He did not remember what part of decedent’s body he hit or how many times — “all I know I was swinging”. As to why he hit her, the one theme that constantly recurred was that he “ didn’t know why ”. In the first question and answer statement, taken some 2% hours after the initial oral statement, defendant denied that decedent had said she was going to tell anybody about their lovemaking. He did answer “Yes” to the question ‘1 If she got out of the car she would tell people she knew about it, did you know that? ”, as he did to several other damaging leading questions; but in answer to the very next question: “ With that thought in mind as well as being angry and disappointed,, you picked the hammer up, isn’t that it? ”, he replied: “ I wasn’t angry; it was a feeling that got over me; I started to shake ”.

In the second question and answer statement, taken about 2 hours later, and which defendant repudiated on the stand, he said he hit decedent because he was angry and 1 ‘ knew that she would know who I was and probably tell somebody ”. Immediately after answering “Yes” to the question: “ And you hit her sufficiently to stop her from telling anybody? ”, he was asked: “Do you understand what I said? ”, whereupon he gave the limited answer “ I hit her. Yes.” Then in reply to the question: “ Why did you hit her? ”, he returned to the ever recurring theme, “ I don’t know. I just picked it up and hit her. ’ ’

“If anything emerges clearly from ” defendant’s account of what happened, “ it is a picture of a defendant who is actually unable to recall with any clarity the events about which he is being questioned ”, and “ The extreme artlessness of the language, with its obviously damaging overtones, suggests one probing the outposts of memory, rather than a man evasively revealing part and concealing the remainder of a story” (People v. Leyra, 1 N Y 2d 199, 207).

Although defendant testified that he had no memory of hitting decedent, his statements that he remembered swinging and hitting her are not necessarily inconsistent with his having suffered a hypothalamic fit. The testimony as to his past seizures showed that on at least one occasion he remembered “swinging”. The theory of the three defense experts was that he had had only partial amnesia, and, combining with this inference and suggestion from outside sources, had reconstructed what had probably happened, without having any actual memory of it. The People’s neurological expert, Dr. Yahr, “assumed it was possible” that a person, under the circumstances of this case, could, without actual memory, reconstruct what had happened and accept in his own mind the version as given him by the newspapers and the police. Defendant could of course recall all the events preceding his seizure; he subsequently learned that Patricia had been killed, he saw the blood spots in his car, and he could not help but conclude that he must have killed her.

Inasmuch as defendant’s “ memory ” of the actual assault was manifestly vague, and in light of the leading nature of many of the questions put to him and the fact that he was a high grade intellectual moron with an 80 I.Q., his statements as to returning to the front seat of the ear and driving it toward the “Nineties” seem to evidence a reconstruction of what probably happened, rather than a conscious recollection of events. He knew the girl had been in the car with him and actually remembered disposing of the body, after the screech of brakes and a near collision brought him back to a state of consciousness. The testimony as to his past seizures showed that he had been told of various acts of violence he had committed of which he had no memory, and here his interrogators confirmed what he had already learned from the radio and newspapers.

His attempts to conceal the crime would have little if any probative force on the issue of whether he remembered what occurred. We emphasized the weakness of such evidence in the case of People v. Leyra (supra, pp. 208-210), and, under the circumstances here, the spoliation of evidence is just as consistent with a realization by defendant that he had done something to the girl as with a conscious recollection of precisely what had happened. His attempts to conceal the crime were rather cursory, unhurried and ineffective, and he made no effort to get rid of the most damaging piece of evidence, namely, the homicide weapon, which had bloodstains on it.

The fact that defendant inflicted at least 19 separate blows on the face and head of decedent reflects the uncontrollable rage pattern of an epileptic furor attack, rather than the premeditated action of a purposeful killer. The defense experts emphasized that the unusual violence thus displayed was suggestive of a furor attack. Dr. La Verne testified that a person in the throes of a furor attack “acts like a wild animal” (emphasis supplied), and Dr. Hoffman explained that a clonic reaction in an epileptic will make him hit, hit, hit, hit, hit, until the thing is over

Further evidence that defendant suffered a seizure was a ‘ ‘ tiny clue ’ ’ obtained by the defense experts after examining defendant under sodium amytal (popularly called truth serum), the validity of which they did not acknowledge but which gave them the determination to pursue [the] alcohol provocative test ” after the routine tests for epilepsy proved negative. During an amytal interview, as recounted by Dr. La Verne, defendant ‘ ‘ stated an actual description of an attack, and the way he described it was as follows: He was in the back seat with Pat Euland and she suddenly stated to him, 1 Tommy, why are you shaking? What’s wrong with, you? Are you sick? ’ He then grabbed my arm to demonstrate to me what she did to him. He grabbed my arm to steady—to apparently steady the arm that she had grabbed in the car * * *. She then stated to him, You’re talking crazy. You’re talking nonsense. What’s wrong with you?’” When defendant returned to consciousness he had no recollection of this conversation or of having suffered a spell in the car with, decedent. Dr. La Verne explained that while patients often give expresSion to an u unconscious wish or fantasy” during amytal interviews, defendant ‘ ‘ consistently gave the same answers Under amytal ”, although both he and Dr. Taterka spent about an hour or thereabouts trying to get him to change the description of that spell and trying to shake his story

Inasmuch as the trial court denied the prosecutor’s motion to strike this testimony from the record and ruled that the jury “ will consider it ”, it is part of the record before us and the People do not argue that the trial court’s ruling was in error. We find it difficult to ignore the fact that defendant always started “ shaking” at the outset of a seizure, and that every time anyone tried to help him he struck out violently at him.

Another suggestive feature of defendant’s epileptic history is that almost all of his attacks were preceded by drinking and nothing to eat. Whether defendant had 15 to 20 beers only on the night of the homicide, or, as he claimed, they were “ chased ” by an equal number of ryes, he still had quite a bit of alcohol in his system and had had nothing to eat since 11 o’clock in the morning. In the alcohol provocative test, defendant was given a lesser amount of alcohol than he claimed to have consumed on the night of the homicide, and Dr. Taterka testified that he would not have proceeded any differently in administering the test if defendant had had only beer. There was little doubt that the seizure induced in defendant was a genuine epileptic furor attack, as ‘ nobody, not even an expert, could simulate a hypothalamic attack ’ ’. Moreover, dilation of pupils and sluggishness to light could not “be simulated”. While Dr. Tahr testified that medical science did not know what caused epileptic fits, Dr. Taterka stated: “ There are many epileptics who will get spells most or only after alcohol. ’ ’

Finally, we come to the question of motive, proof of which in this case is inextricably bound up with proof of sanity and premeditation. As we said in the Barber case (115 N. Y. 475, 490, supra), “the question of motive was manifestly a most important consideration on the issue of insanity”, and we further noted (p. 486): “ It is a striking feature of the case, which arrests the attention at the outset, that no motive for the murder * * * was shown, and, indeed, that no reasonable suggestion of such motive is discoverable from the evidence.” The motive sought to be established by the People here appeared to be a combination of anger and disappointment because decedent refused to consummate their lovemaking by an act of intercourse at a time when defendant was in an extreme state of sexual excitement, and the desire to prevent decedent from telling anyone about their amorous adventure. This dual motive is reflected in the testimony of Dr. Abrahamsen who, at one point, explained defendant’s action in hitting the girl as “ a reaction of frustration because he did not get what he wanted ”, but then testified that defendant “ Was in a very precarious situation, by the fact of trying to have sexual intercourse. The girl would know him and would have told on him.”

On this appeal, the People rely solely on the second motive, as they argue that in the second question and answer statement ‘ ‘ he abandoned the futile effort to attribute the murder to passion or impulse and fully confessed that he had killed the girl with the intent and for the purpose of preventing her from disclosing to mutual acquaintances their amatory encounter * * * and his conduct therein.” (Emphasis in original.)

That defendant killed decedent to prevent a disclosure — as to which there is not the slightest evidence she ever threatened to make — does not strike us as plausible under the circumstances of this ease. Had defendant attempted to rape her, or if she was forcefully resisting his sexual advances, then his desire to prevent disclosure might arguably be a motive for murder. But the autopsy, as noted, showed no evidence of abrasions, contutions or semen around decedent’s genitalia, and the only evidence in the record of what transpired between the two in the car has already been referred to.

As noted, when decedent was found on the street at about 11:30 p.m., she was moaning and moving her arms and legs, and the woman who discovered her noticed a green car up ahead making a turn. Inasmuch as decedent entered defendant’s car about 10:25 p.m. and defendant stated that their lovemaking consumed about 20 minutes, it seems likely that the car observed was defendant’s green Ford. If defendant sought to make sure that decedent would not inform on him, one finds it difficult to explain why he would first inflict 19 blows and then leave his victim on a public street obviously alive.

Of course we cannot presume to say what motivates one to commit murder, for as we noted in People v. Furlong (187 N. Y. 198, 210, supra), “There can be no sufficient motive for so brutal and serious a crime Had defendant clearly and unequivocally attributed his act to a desire to prevent disclosure, we could not completely discount this as inherently improbable or unbelievable. The only evidence of this motive, however, appears in a few equivocal answers in the second question and answer statement, prior to which an Assistant District Attorney had admittedly accused defendant of lying and implored him, as a good Catholic, to “ confess ”, as he would have, to said assistant’s uncle, a Catholic priest known to defendant. It was this interrogator who first suggested the possibility that defendant killed the girl to silence her, during the taking of the first question and answer statement, but defendant denied it. In answer to obviously leading questions in the second statement, he replied, in almost the identical language used earlier by his interrogator, that this was the reason he struck her, but then immediately reiterated that he didn’t know why — he “ just picked it up and hit her ”. As we noted in the Leyra case (1 N Y 2d 199, 207, supra), these feio equivocal sentences are too weak and slender a reed upon which to support a judgment sending a man to the electric chair. ” (Emphasis supplied.)

The People cite the very brutality of the crime as probative of premeditation, relying upon a quotation from People v. Furlong (187 N. Y. 198, 210, supra). In that case, however, the defendant had provided himself with an iron bar, taken it to the apartment in question, and used it to commit the crime, the motive for which was clearly robbery. Here, as in the Barber case (115 N. Y. 475, 488, supra), “ There was apparently no preparation to commit the crime ”, as the hammer was always kept loose on the car floor in front of the back seat, along with other tools of defendant’s trade, and “ The evidence tends to show that he picked up the first implement at his hand with which to make the assault ”.

People v. Egnor (175 N. Y. 419) involved a homicidal assault by a convict upon a prison guard who “ had been severe and harsh in his treatment of the convicts under him ”, and towards whom defendant “ had manifested a vindictive and threatening demeanor ” (p. 422). Immediately after assaulting his victim with an iron bar and then shooting him with a revolver, the defendant informed another prison guard what he had done — conduct totally inconsistent with the post-confusional state which generally follows the violent stage of an epileptic furor attack. Furthermore, the testimony of witnesses who observed the homicide, as well as those who observed defendant immediately before and after, ‘ ‘ tended to show an utter absence of any indications of epileptic disease ” (p. 424). The medical experts who testified for the People had examined defendant, had found no evidence of epilepsy or epileptic furor, and had testified that defendant ‘1 appeared to be controlling his muscles ” during the physical examination (p. 424).

Here, in sharp contrast to Egnor, there was no reasonable suggestion of a motive, and no eyewitness testimony as to defendant’s conduct during or after the alleged attack. Defendant’s actions after the homicide were consistent with the postconfusional state of a furor attack, and the only doctors who examined him and had actually induced a seizure testified that he presently suffered from thalamic or hypothalamic epilepsy, which nobody, not even an expert, can simulate ”.

Our Constitution (N. Y. Const., art. VI, § 7) and section 528 of the Code of Criminal Procedure have vested in us the power to review the facts in a capital case, and that means “ that we shall examine the evidence to determine whether in our judgment it has been sufficient to make out a case of murder beyond a reasonable doubt” (People v. Crum, 272 N. Y. 348, 350; People v. Valletutti, 297 N. Y. 226, 231; People v. Williams, 292 N. Y. 297, 300; People v. Weiss, 290 N. Y. 160, 170; People v. Davino, 284 N. Y. 486, 488; see, also, People v. Becker, 210 N. Y. 274, 289). In the exercise of that power, and in the discharge of our duty “ to weigh the evidence and form a conclusion as to the facts ” (People v. Crum, 272 N. Y. 348, 350, supra), we have concluded that the conviction must be reversed and the jury’s verdict set aside. The finding that the defendant was sane at the time he is alleged to have committed the crime, as well as the finding of premeditation and deliberation, implicit in the jury’s verdict is, upon this record, contrary to the weight of the evidence.

There is a further ground for concluding that there must be a reversal, namely, certain errors committed by the trial court which we regard as prejudicial. One such error was permitting the People’s two expert witnesses to invade the province of the jury and testify to matters not properly the subject of expert testimony. A clear example of this was when the court itself inquired of Dr. Yahr whether concealment by a person of physical evidence some hours after the epileptic seizure would “ indicate to you that he has a recollection of what had transpired before? ” Over the objection of defense counsel, the court persisted in repeating the question, and the witness was allowed to answer “Yes”, whereupon the court denied a motion to strike the answer. The court then asked: “Is that inconsistent with the symptoms and characteristics of a grand mal seizure? ” (emphasis supplied), and, over the objection of defense counsel, the witness was again permitted to answer “ Yes ”. No reference was made to hypothalamic or furor epilepsy.

In the Barber case (115 N. Y. 475, 491-492, supra), an expert witness was similarly allowed to testify that certain acts performed by defendant after the crime indicated that he had a conscious recollection of committing the crime which was inconsistent with his having suffered an epileptic furor attack. In ruling the questions and answers improper, we held (p. 492) that the “inferences to be drawn from the facts referred to in the questions were matters for the jury * * * and were not the subject of expert testimony”.

The above questions were particularly prejudicial because, at several other points in the trial, the court highlighted defendant’s attempts to conceal the crime and, in recounting Dr. Yahr’s testimony in its charge, it included the statement: 1 ‘ Efforts by a person to conceal physical evidence of things which allegedly occurred during the attack indicates that he has a recollection of what had transpired ’ ’. Thus, matters which had little if any probative value on the issue of insanity or premeditation might well have achieved a prejudicial significance in the minds of the jury.

Another instance of improper expert testimony, admitted over the vigorous objection of the defense, was Dr. Abrahamsen’s remarks (referring to the time when defendant made the statements to the authorities): “ I believe he was very anxious to clean his breast” and “these feelings of guilt indicate very clearly that this man remembered very well what he had been doing ”. This testimony was objectionable for the same reasons specified in the Barber, case {supra), despite an effort to dress it up as an opinion which only an expert was qualified to give (see, also, People v. Creasy, 236 N. Y. 205, 221-222).

Another error committed by the trial court which we regard as prejudicial is that he several times inaccurately informed the jury, both during the trial —over repeated objections by the defense — and in his charge, that Dr. Yahr had testified that defendant was not in the throes of an epileptic seizure at the time of the fatal assault. As heretofore pointed out, Dr. Yahr, in answer to a hypothetical question, had stated: “ I cannot say from that whether he did have a seizure at that time, no.” (Emphasis supplied.)

The only expert opinion that defendant did not suffer an epileptic seizure was that of Dr. Abrahamsen, who specialized in psychiatry and not neurology, and who so far as appears had not worked extensively with epileptics since the 1930’s. Dr. Yahr, on the other hand, was a neurologist who specialized in epilepsy, and his opinion on this question might thus have been considered more persuasive by the jury and accorded greater weight. The issue of insanity in this case ‘ required most deliberate and careful consideration” People v. Barber (supra, 115 N. Y., at pp. 489-490). By erroneously informing the jury that the People’s neurological expert had concluded that defendant did not suffer a seizure, the court may well have tipped the balance against defendant. This was crucial, for all the experts on both sides agreed that if defendant had a seizure he would have been unable to form an intent or to premeditate.

Another serious error in the charge occurred when, in recounting the testimony of Dr. Yahr, the court attributed to him the statement that the alcohol 1 ‘ provocative test may produce the same effect in normal people as it does in epileptics ”. Dr. Yahr did not so testify. What he did say was that “ alcohol was capable of producing abnormal brain waves in normal people [as well as epileptics] so that again you would have the difficulty of a test that does not have reliability” (emphasis supplied). He was obviously referring to the EEG test that took place simultaneously with the alcohol provocative test but was entirely independent thereof; indeed, the EEG test established nothing for the wires came off defendant’s head when he suffered the seizure. Dr. Taterka agreed with Dr. Yahr that the EEG test could produce abnormal recordings in normal people. The uncontradicted medical testimony as to the provocative test, however, showed that it was not scientifically possible to induce an attack in a nonepileptic or a normal person ” with the amount of alcohol administered to defendant.

The observance of the seizure induced in defendant was a significant factor in the diagnosis made by the defense experts, and in their conclusion that on the night in question it was reasonably certain that he had suffered the same type of seizure. Furthermore, the prosecutor in his summation had characterized defendant’s reaction to the provocative test as that of a “ fighting drunk ”, and stressed the fact that all but two of defendant’s alleged epileptic attacks came after heavy drinking. The erroneous statement by the trial court not only cast doubt upon the defense testimony that the induced seizure was a genuine epileptic furor attack, but seriously undermined the probative force ■ of the expert opinions that defendant was legally insane. At least it might well have had such effect in the minds of the jury, and, viewed in this light, was most damaging to defendant.

Among other errors assigned, which we do not deem necessary to review, is the court’s failure to charge the jury, with the consent of defense counsel, that, in passing on the issues of intent, premeditation and deliberation, they could consider the defendant’s state of intoxication at the time of the homicide. Some of the members of the court are of the opinion that this too was prejudicial error, but, inasmuch as consideration of that question might lead to a difference of opinion among the majority, I shall express no view either way in this opinion.

The judgment of conviction should be reversed and a new trial ordered.

Burke, J. (concurring).

I do not agree that the judgment of conviction should be reversed because the evidence does not support the verdict of the jury insofar as it rejected the defense of insanity. My concurrence is based mainly on the ground that on this record the Trial Judge should have charged the jury on the question of intoxication.

Other errors, as the acceptance of opinion testimony dealing with matters not properly the subject of expert testimony (People v. Barber, 115 N. Y. 475, 492) and the inadvertent but inaccurate summaries of part of the expert testimony related in the charge, were prejudicial. Nonetheless, considered separately, they would not, in my opinion, constitute reversible error.

The issue of intoxication, on the other hand, was far too important to withhold from the jury. Here, the court barred the jury from considering “ whether such intoxication prevented the intent, premeditation and deliberation essential to constitute the crime of murder in the first degree ” (People v. Van Zandt, 224 N. Y. 354, 355).

The prosecution’s claim that the defendant is concluded by the deliberate action taken by his counsel is untenable. Counsel for the defense cannot usurp the power of the court nor disregard the historic role the judge plays in the trial of a case involving the life or liberty of a defendant. In our jurisprudence, the judge is a positive force in the administration of justice. In general, under our law, the judge is required to assist the jury throughout the trial. His most important duty, in particular, is to instruct the jury on the law. This responsibility is imposed on a judge presiding at a criminal trial by a specific statute. Section 420 of the Code of Criminal Procedure provides in part that “ In charging the jury, the court must state to them, all matters of law which it thinks necessary for their information in giving their verdict ’ ’.

"Whenever there is a vital omission of a matter of law from the Trial Judge’s charge, the defendant is necessarily prejudiced as his rights have not been properly protected as mandated by the statute. In this case, when the court concluded that contrary to his “personal legal opinion” an instruction would not be given on the question of intoxication, he disobeyed the command of the statute. Since the evidence indicated that the defendant imbibed substantial quantities of alcoholic beverages while abstaining from food in the hours prior to the commission of the crime, the jury should have had the usual instruction that while voluntary intoxication does not render a criminal act any the less criminal, nevertheless ‘ ‘ Whenever the actual existence of any particular purpose, motive or intent is a necessary element to constitute a particular species or degree of crime, the jury may take into consideration the fact that the accused was intoxicated at the time, in determining the purpose, motive or intent with which he committed the act”. (Penal Law, & 1220.)

It is well established that “ The statute permits any, not simply total, intoxication to be considered on the question of intent. (People v. Leonardi, 143 N. Y. 360; People v. Corey, 148 N. Y. 476.) It is for the jury to determine the extent of the intoxication and whether it had the effect to prevent the necessary intent, deliberation and premeditation ”. (People v. Gerdvine, 210 N. Y. 184, 186.) Where, as here, the prosecution in its summation, referring to the testimony in relation to the alcoholic episodes in the defendant’s past life, contended that the defendant was ‘1 fighting drunk ’ ’ and 1 ‘ showing an utter disregard * * * for everybody and everything ’ ’, the defendant was, as a matter of law, entitled to a charge on the [uestion of intoxication. Without such a warning, the jury could well regard the intoxication as a matter militating against • lie defendant on the issues of intent, premeditation and deliberation. This view of an uninstructed jury of the relative evidentiary weight of the proof of intoxication would, of course, be contrary to law. Hence the Trial Judge disregarded his statutory duty in acceding to the request of defense counsel to dispense with any charge in respect to the evidence of intoxication. By so doing, he deprived the defendant of the protection of a fundamental right guaranteed by law.

However, I am unable to concur in the conclusion that the verdict of the jury is against the weight of the evidence. The defendant was the only eyewitness to the crime. The testimony of the defendant and his witnesses was offered to counterbalance the evidence given concerning the confessions of premeditated murder, the false alibi and the spoliation of the evidence. There was, therefore, a fair question of fact based on conflicting evidence. The opinion evidence of the expert witnesses could, at most, give rise to conflicting inferences. Under such circumstances, argument based upon scattered gleanings” from the testimony of the experts cannot prove that the weight of evidence is with the defense (see People v. Sherwood, 271 N. Y. 427, 429). A jury can accept or reject the opinion of an expert (People v. Sherwood, supra; Dougherty v. Milliken, 163 N. Y. 527, 533). Here the jury could, if it desired, find the opinion evidence offered by defendant incredible when judged in the light of the defendant’s confessions, the false alibi and the spoliation of evidence.

“ The jurors had the witnesses before them and, in listening to their testimony, could observe the manner, in which they gave it. They could determine not only the credibility of the witnesses, but, also, the reliance to be placed upon the testimony, in the light of the opportunities and of the facts, which formed the basis for the opinions expressed. The issue was for them to decide and the court should not invade their province and interfere with their decision ” (People v. Egnor, 175 N. Y. 419, 425, 426). Certainly this must be so when the conclusion and opinion of the defendant’s expert witnesses are not only contradicted by opposing conclusions and opinions held by the People’s expert witnesses, but also when they include admissions by defendant’s experts that, during an epileptic seizure, physical conditions occur which would render the victim of the seizure powerless to act because of the violence of the movements of the epileptic’s body during the furor stage of the attack and because of the listlessness present during the post furor stupor. Hence the issue of the defendant’s sanity was a clear question of fact and a proper subject for determination by the jury. This court should not indirectly by a reversal seek to coerce the jury into crediting the opinion testimony of the defendant’s experts and discrediting the testimony of the People’s experts. The values of the opinion evidence given by competing physicians cannot be certified to by this court even in a capital case. Such a determination, under our laws, is for the jury to make; not for this court. By the reversal this court is ostensibly placing a higher testimonial value on opinions based on assumed and simulated conditions than on the voluntary statements given by the only eyewitness, the defendant. If the appellate courts arrogate to themselves the power to decide cases on the respective weights of opinion evidence divorced from the other evidence in a case, the verdicts of the juries will be hereafter judicially treated, in effect, as merely advisory in defiance of the constitutional privilege and without appropriate constitutional amendment or legislative action

Dye, J. (dissenting).

I am unable to agree that this judgment of conviction should he reversed and a new trial ordered on either the ground advanced in the majority opinion that the verdict of guilt was against the weight of the evidence as to the issue of insanity or on the ground that prejudicial error was committed when the trial court acceded to the request made by counsel for the defense not to charge the jury on the question of intoxication.

However, I do concur with my colleague, Judge Burke, that the weight of the evidence supports the verdict of the jury and that the opinion evidence of the experts, at most, gave rise only to conflicting inferences which were properly left to the jury to decide.

During this prolonged trial, the very able and experienced counsel for the defendant (who had been chosen by him in the first instance and later assigned by the court) conducted his defense on the theory that, at the time of committing the homicide, the defendant was laboring under such a defect of reason as not to know the nature and quality of his act or not to know that the act was wrong, which defect in reason had been induced by the sudden onslaught of an epileptic rage or furor. During the trial, testimony was received from witnesses for the People and for the defense, including the defendant himself, that at various times and places during the course of the afternoon and evening immediately preceding the homicide the defendant had imbibed in an undisclosed amount of beer and whiskey. Defense counsel minimized the drinking and at no time alluded to intoxication for the very good reason, no doubt, that such a claim might well have diverted the attention of the jury and jeopardized acceptance of the key defense based on the epileptic seizure, since a jury may take intoxication into consideration in determining the purpose, motive and intent with which the accused acted (Penal Law, § 1220).

Exclusion of intoxication as a defense element did not rest solely on a matter of trial tactics, but was grounded on a practical view of the evidence. All of the witnesses, for the People and for the defense, as well as the defendant himself, agreed that he was not intoxicated; in fact, during all the time mentioned his movements and his conduct negated a statement of intoxication. He drove his car from place to place with compíete control of Ms reflexes and co-ordination. He remembered all that had happened and accounted for his movements in minute detail, including the pickup of his unfortunate victim, the incidents which led up to the seizure of the murder weapon — a ball-peen hammer — the “ funny feeling ” and the evidence that led to the disposal of the victim’s body and despoliation of the incriminating evidence. This showing fell short of establishing a state of intoxication; to claim that it did would undoubtedly have hampered the jury in their consideration of the basic issue of insamty.

To avoid creating any confusion in the minds of the jury, with their carefully planned defense strategy, counsel with insistent deliberation expressly requested the court not to charge the jury on the question of intoxication. The court acceded to their request and did not charge intoxication. Notwithstanding this state of the trial record, the appellant now urges that it was nonetheless the duty of the Judge to charge intoxication “in the interests of justice ”. This turnabout in defense tactics is indeed difficult, if not impossible to reconcile, since we are not dealing with a situation wherein incompetent counsel have failed to recognize an inadequate charge and to take proper steps to correct it. The question of intoxication was not charged because of the insistent demand of counsel. The charge as made adequately placed before the jury the carefully planned defense strategy based on the epileptic episode for that, in their considered opinion, undoubtedly offered the best chance of checkmating the charge of premeditated murder.

In such posture of the record, I do not believe that the trial court could with propriety refuse the defense counsel’s request not to charge the jury on the question of intoxication. It was rather a recognition of the rig'hts of the defendant to have Ms case tried in reliance on the experience and skill of Ms able counsel. This right may not and should not be circumscribed or restricted by the court.

Nor do I think that acceding to the request of defense counsel amounted to a denial of a fundamental right. As we read Peoples. Van Zandt (224 N. Y. 354) and People v. Koerber (244 N. Y. 147), relied on by the appellants, we note a distinction, In Van Zandt, for instance, no request for a charge on intoxication was made, although there was evidence of intoxication, while in Koerber such a request was denied. So far as we can ascertain from our reports, this is the first time we have dealt with an insistent and deliberate request of the court not to so charge. To have charged intoxication in such a setting would certainly have been open to the criticism that it was an unwarranted interference with the conduct of the trial.

Nothing turns on the contention that the defendant himself did not personally state that he acquiesced in the request of his counsel not to charge intoxication. It is not at all analogous to the requirement that the defendant’s consent be had before exhibits in the cause may be sent to the jury room (Code Grim. Pro., § 425).

In my opinion, the judgment of conviction should be affirmed.

Judges Desmond, Fund and Van Voorhis concur with Judge Froessel; Judge Burke concurring for reversal in a separate opinion in which Judges Froessel and Van Voorhis concur only insofar as it concerns the failure to charge the law regarding the effect of intoxication; Judge Dye dissents in a separate opinion; Chief Judge Conway dissents and votes to affirm.

Judgment reversed and a new trial ordered.


source: Caselaw Access Project

author: Dye, J.

license: Public Domain

text:
    In the Matter of S. S. Silberblatt, Inc., Appellant, against Tax Commission of the State of New York, Respondent.
    Argued March 5, 1959;
    decided April 17, 1959.

      Harold A. Jerry and Clyde A. Lewis for appellant.
    I. The mortgage recording tax is a property tax in this case. (Franklin Soc. v. Bennett, 282 N. Y. 79, 309 U. S. 640; United States v. County of Allegheny, 322 U. S. 174; Tennessee v. Davis, 100 U. S. 257; Van Brocklin v. State of Tennessee, 117 U. S. 151; Macallen Co. v. Massachusetts, 279 U. S. 620; Gregg Dyeing Co. v. Query, 286 U. S. 472; Senior v. Braden, 295 U. S. 422; S. R. A., Inc., v. Minnesota, 327 U. S. 558; Schwabacher v. United States, 334 U. S. 182; N. J. Ins. Co. v. Division of Tax Appeals, 338 U. S. 665; Franklin Nat. Bank v. New York, 347 U. S. 373; Federal Land Bank v. Crosland, 261 U. S. 374; Pittman v. Home Owners’ Corp., 308 U. S. 21.) II. The mortgages on the leaseholds are ipso facto exempt from State taxation under the provisions of the Capehart Act itself. (Offutt Housing Co. v. Sarpy County, 351 U. S. 253; United States v. Township of Muskegon, 355 U. S. 484; Matter of Fort Hamilton Manor v. Boyland, 4 N Y 2d 192; Insurance Co. v. Haven, 95 U. S. 242.) III. The mortgages were among the means and operations used by the Federal Government in carrying out powers expressly or impliedly granted to it by the United States Constitution and the National Housing Act. (McCulloch v. State of Maryland, 4 Wheat. [U. S.] 316; Dobbins v. Commissioners of Erie County, 16 Pet. [U. S.] 435; Smith v. Kansas City Tit. Co., 255 U. S. 180; Case v. Bowles, 327 U. S. 92; People ex rel. Astoria Light, Heat & Power Co. v. Cantor, 236 N. Y. 417; Railroad Co. v. Peniston, 18 Wall. [U. S.] 5; Clallam County v. United States, 263 U. S. 341; New York ex rel. Rogers v. Graves, 299 U. S. 401; Graves v. New York ex rel. O’Keefe, 306 U. S. 466; Carson v. Roane-Anderson Co., 342 U. S. 232.) IV. The United States in carrying out its governmental duties is immune from State taxation irrespective of statute. (Federal Land Bank v. Crosland, 261 U. S. 374; Pittman v. Home Owners’ Corp., 308 U. S. 21; United States v. Allegheny County, 322 U. S. 174; Matter of Fort Hamilton Manor v. Boyland, 4 N Y 2d 192.) V. The mortgages are personal property which is exempt from State taxation. (Matter of Fort Hamilton Manor v. Boyland, 4 N Y 2d 192.) VI. United States v. City of Detroit (355 U. S. 466) bears no relation to the questions involved in this proceeding. There is no use tax in this State. (James v. Dravo Contr. Co., 302 U. S. 134; Henneford v. Silas Mason Co., 300 U. S. 577; Esso Std. Oil Co. v. Evans, 345 U. S. 495; United States v. Allegheny County, 322 U. S. 174; Clallam County v. United States, 263 U. S. 341.)

      Louis J. Lefkowitz, Attorney-General (Julius L. Sackman and Paxton Blair of counsel), for respondent.
    I. The New York State mortgage recording tax is an excise tax imposed upon the privilege of recording a mortgage. (Franklin Soc. v. Bennett, 282 N. Y. 79, 309 U. S. 640; Federal Land Bank v. Crosland, 261 U. S. 374; Pittman v. Home Owners’ Corp., 308 U. S. 21; United States v. County of Allegheny, 322 U. S. 174; People ex rel. Elias Brewing Co. v. Gass, 120 App. Div. 147, 190 N. Y. 565.) II. There is no statute which can be said to exempt these mortgages from payment of the mortgage recording tax. (Offutt Housing Co. v. Sarpy County, 351 U. S. 253; Squantum Gardens v. Assessors of Quincy, 335 Mass. 440 ; Bragg Inv. Co. v. Cumberland County, 245 N. C. 492; Sheridanville, Inc., v. Borough of Wrightstown, 125 F. Supp. 743, 225 F. 2d 473, 351 U. S. 962; People ex rel. Frost v. Woodbury, 213 N. Y. 51; Smith v. Davis, 323 U. S. 111; Hibernia Sav. Soc. v. San Francisco, 200 U. S. 310; Society for Sav. v. Bowers, 349 U. S. 143; People ex rel. Phenix Fire Ins. Co. v. Gardiner, 48 Barb. 608.) III. Nothing in the United States Constitution requires that the mortgages be held exempt by implication from the payment of the mortgage recording tax. (Helvering v. Gerhardt, 304 U. S. 405; McCulloch v. State of Maryland, 4 Wheat. [U. S.] 316; Graves v. New York ex rel. O’Keefe, 306 U. S. 466; Esso Std. Oil Co. v. Evans, 345 U. S. 495; Oklahoma Tax Comm. v. Texas Co., 336 U. S. 342; Helvering v. Producers Corp., 303 U. S. 376.) IY. Immunity from taxation extends only to agencies and instrumentalities engaged in the usual governmental functions. (Van Brocklin v. State of Tennessee, 117 U. S. 151; Collector v. Day, 11 Wall. [U. S.] 113; Railroad Co. v. Peniston, 18 Wall. [U. S.] 5; Fox Film Corp. v. Doyal, 286 U. S. 123; South Carolina v. United States, 199 U. S. 437; Ohio v. Helvering, 292 U. S. 360; Flint v. Stone Tracy Co., 220 U. S. 107; Commissioner of Internal Revenue v. Modjeski, 75 F. 2d 468, 295 U. S. 764; Helvering v. Poioers, 293 U. S. 214; Commissioner of Internal Revenue v. Ten Eyck, 76 F. 2d 515.) Y. The fact that the five mortgagors will ultimately be wholly owned, through stock ownership, by the Federal Government does not render the mortgagors instrumentalities of the Federal Government at the present time because presently they are private corporations, the stock of which is privately owned. Even present stock ownership by the Government would not result in tax exemption. (United States v. Brown, 41 F. Supp. 838; National Bank v. Commonwealth, 9 Wall. [U. S.] 353; Warrior Riv. Term. Co. v. State, 257 Ala. 208; Sloan Shipyards v. United States Fleet Corp., 258 U. S. 549; United States v. Strang, 254 U. S. 491; Ingram Day Lbr. Co. v. United States Shipping Bd. Emergency Fleet Corp., 267 F. 283; Commercial Pacific Cable Co. v. Phillipine Nat. Bank, 263 F. 218.) VI. Immunity is not impliedly extended to a mortgage recording tax by reason of the fact that the property affected by the mortgage has an exempt status. (State v. Lantz, 53 N. J. L. 578; Security Sav. Bank v. City & County of San Francisco, 132 Cal. 599; Savings & Loan Soc. v. City & County of San Francisco, 131 Cal. 356; Land O’Lakes Dairy Co. v. Wadena County, 229 Minn. 263; Taylor v. Genesee County, 286 Mich. 674.) VII. The fact that the burden of the tax may fall upon the Federal Government does not create tax immunity. (Alabama v. King & Boozer, 314 U. S. 1; Curry v. United States, 314 U. S. 14; James v. Dravo Contr. Co., 302 U. S. 134; Smith v. Davis, 323 U. S. 111; Esso Std. Oil Co. v. Evans, 345 U. S. 495; Timm Aircraft Corp. v. Byram, 34 Cal. 2d 632.) VIII. The trend has been to reject immunizing private parties from nondiscriminatory State taxes as a matter of constitutional law. (United States v. City of Detroit, 355 U. S. 466; United States v. Township of Muskegon, 355 U. S. 484; City of Detroit v. Murray Corp., 355 U. S. 489.)
   Dye, J.

This appeal presents a problem of intergovernmental tax immunity with specific reference to the right of the State to impose a mortgage recording tax on mortgages given by private corporations on lands leased from the Federal Government.

The facts giving rise to the problem supply the answer. On January 14, 1957 the Department of the Air Force, U. S. A., through the Contracting Officer of Plattsburgh Air Force Base, issued an invitation for bids for the construction, through Federal Housing Administration insured mortgage financing, of an Armed Services housing project at Plattsburgh Air Force Base, consisting of 1,685 on-base family units. The petitioner, as low bidder, was awarded the contract for the sum of $27,578,000. The procedure employed to carry out this contract was as complicated as the objective was simple. The petitioner, upon being awarded the contract, formed five Delaware corporations with paid-in capital stock of $1,000 each, of which the petitioner was the sole stockholder. Each of the five corporations leased certain described lands at the Plattsburgh Air Force Base for a term of 55 years, paying as a total rent under each lease the sum of $1,000. The five corporations then borrowed $27,578,000 from the Chemical Corn Exchange Bank of New York, evidenced by their promissory notes, and secured by five mortgages on the leased premises. When the five mortgages in varying amounts of principal aggregating $27,578,000, each dated May 6, 1957, were presented to the Clinton County Clerk for recordation, he demanded recording fees which admittedly were due (Real Property Law, § 291; Civ. Prac. Act, §§ 155A-1556) and a mortgage recording tax, aggregating $137,000, which the petitioner as ‘1 eligible builder ’ ’ paid under protest (Tax Law, § 253). In its demand for refund, the petitioner-appellant challenges the validity of the tax as having been imposed upon lands and obligations of the Federal Government and upon instrumentalities used by the Government in carrying out its functions and, more specifically, because the tax in question violates section 511 of the Housing Act of 1956 (cf. U. S. Code [1952 ed., Supp. V, p. 2802], § 1594, “ Savings Provisions ”).

We do not read section 511 of the Housing Act of 1956 as providing immunity from payment of the challenged mortgage recording tax. Quite obviously, that statute concerns itself with the exemption from a property tax or assessment by a State or local government upon the leasehold interest of a lessee of lands from the Federal Government (see U. S. Code, tit. 12, §§ 1748-1748h; House Report, No. 2363, 84th Cong., 2d Sess., pp. 48-49). The issue of the vulnerability of a leasehold to a local property tax was decided and sustained in Offutt Rousing Co. v. Sarpy County (351 U. S. 253).

Section 253 of the Tax Law imposes a recording tax upon every mortgage at the rate of fifty cents for each one hundred dollars and each remaining major fraction thereof of principal debt or obligation which is * * * secured * * * by a mortgage on real property situate within the state We have long since determined that the mortgage recording tax is not a tax on property, but a tax upon the privilege of recording a mortgage which in no way conflicts with the provisions of the New York Constitution (art. XVT, § 3) or with the United States Constitution (14th Arndt., § 1) (Franklin Soc. v. Bennett, 282 N. Y. 79, appeal dismissed 309 U. S. 640). We conclude, therefore, that the immunity envisioned by section 511 of the Housing Act of 1956 has no applicability here.

Likewise, we must reject appellant’s contention that the subject mortgages, as direct obligations to the United States, are immune from State or local taxation, as provided in section 3701 of the Revised Statutes of the United States (U. S. Code, tit. 31, § 742) which exempts “Except as otherwise provided by law, all stocks, bonds, Treasury notes, and other obligations of the United States ” since they are not “ of the same type as those specifically enumerated” in the statute (Smith v. Davis, 323 U. S. 111, 117). Under the arrangement authorized by the Enabling Act, it is clear that the device employed was designed to relieve the Government of its financially burdensome obligation to provide housing for its military personnel and at the same time avoid increasing the national debt. It did not pledge its credit in the usual sense, but merely guaranteed each “ periodic payment ” based on a monthly average of $90 per family unit.

The appellant’s contention that this petitioner and the five corporate mortgagors are instrumentalities of the Federal Government or its agencies and, as such, are exempt from State and local taxation, is without substance. The cases relied on (Federal Land Bank v. Crosland, 261 U. S. 374, and Pittman v. Home Owners’ Corp., 308 U. S. 21) are inapplicable since they turned on Federal statutes which expressly declared the Federal Land Bank and the Home Owners’ Loan Corporation to be Federal instrumentalities. At the time of the execution, delivery and recording of these mortgages, each of the mortgagors was a private corporation, all of the capital stock of which was privately owned. They were created for a commercial purpose for private profit, as distinguished from a governmental purpose. In the absence of statute to the contrary, it may not be assumed that a governmental function was involved. They possess all of the requisites and responsibilities of corporate existence and, as such, are an entity separate and apart from the United States (United States v. Strang, 254 U. S. 491) and this is so, notwithstanding the fact that all of the capital stock of each corporation will ultimately be owned by the Federal Government {Sloan Shipyards v. United States Fleet Corp., 258 U. S. 549). Accordingly, we conclude that the five mortgagors were not instrumentalities of the Federal Government at the time of the recording.

Wc are also obliged to reject the appellant’s remaining contention that the mortgage recording tax, as here imposed, amounted to a tax on personal property which is exempt from taxation in New York (Tax Law, § 2; Matter of Fort Hamilton Manor v. Boyland, 4 N Y 2d 192 [holding that a leasehold interest as a chattel real was exempt]). While a mortgage is personal property and may no longer be subjected to a property tax, it nonetheless is a misconception of the State Tax Law to say that a recording tax is a tax on property or an interest in property, either as personalty or as realty because it covers land. As we have already said, section 253 of the Tax Law is not a tax on property but a tax on the privilege of recording the mortgage. The United States Supreme Court has recently refused to invalidate an expressly authorized nonproperty tax under an otherwise valid statute or extend the Government’s constitutional immunity to shield private parties therefrom, merely because part or all of the financial burden eventually falls on the Government, for to do so would improperly impair the taxing power of the State (United States v. City of Detroit, 355 U. S. 466 [1958]).

The order of the Appellate Division should he affirmed, with costs.

Chief Judge Conway and Judges Desmond, Fuld, Froessel and Burke concur with Judge Dye ; Judge Van Voorhis dissents and votes to reverse and to annul and refund the mortgage recording tax in the following memorandum: Although under our State law the tax is imposed upon the recording of the mortgage (Franklin Soc. v. Bennett, 282 N. Y. 79), this case is controlled by Federal law under which the tax is on the mortgage itself, which is a Federal instrumentality exempt from State taxation (Federal Land Bank v. Crosland, 261 U. S. 374; Pittman v. Home Owners’ Corp., 308 U. S. 21; Housing Act of 1956, § 511, U. S. Code [1962 ed., Supp. V, p. 2802], tit. 42, § 1594, Historical Note, Savings Provisions). Unlike the Wherry Act, the Capehart Act, under which this military housing project was authorized, renders petitioner-appellant merely a builder and not a private sponsor of the military housing. The United States, through its Department of Defense, is the sponsor, financier and owner of the entire project. The mortgagor corporations are mere fictions, and they and the mortgagee banks had no other function in this business than to act as agents for the Federal Government (Clallam County v. United States, 263 U. S. 341, 345; Railroad Co. v. Peniston, 18 Wall. [85 U. S.] 5, 42). The situation is, therefore, the same, in legal effect, as though the mortgages ran to the Federal Land Bank or the Home Owners’ Loan Corporation, where State mortgage recording taxes were held to be invalid in the Crosland and Pittman cases above cited.

Order affirmed.


author: Desmond, J. Burke, J. (dissenting).

text:
    Felice Cassano, Appellant, v. Albin R. Hagstrom, Respondent.
    Argued January 21, 1959;
    decided April 17, 1959.

      Ralph Stout and Sidney Schulman for appellant.
    I. Plaintiff made out a prima facie case; the trial court erred in dismissing the complaint at the close of plaintiff’s case. (Pollard v. Trivia Bldg. Corp., 291 N. Y. 19; Meiselman v. Crown Heights Hosp., 285 N. Y. 389; Higdon v. Carleback, 348 Mich. 363; Osipoff v. City of New York, 286 N. Y. 422; Zettler v. Reich, 256 App. Div. 631; Dictz v. Aronson, 244 App. Div. 746; Evans v. Roberts, 172 Iowa 653; Brown v. Shortlidge, 98 Cal. App. 352; Benson v. Dean, 232 N. Y. 52; Simon v. Freidrich, 163 Misc. 112.) II. The trial court’s ruling that Dr. Silverstein was not qualified to testify as an expert constitutes reversible error. (Meiselman v. Crown Heights Hosp., 285 N. Y. 389; People v. Rice, 159 N. Y. 400; Bratt v. Western Air Lines, 155 F. 2d 850.)

      James M. Gilleran and John J. O’Connor for respondent.
    I. Expert testimony was necessary at bar, such cases as Benson v. Dean (232 N. Y. 52) having no application. Whether Dr. Silverstein, the physician, was or was not properly qualified-by counsel to testify to alleged dental malpractice is immaterial, since defendant himself, while denying that he penetrated the lingual periosteum, admitted that to penetrate this structure (in the dental surgery at bar) would be contrary to accepted procedure. (Ales v. Ryan, 8 Cal. 2d 82; Hall v. Grosvenor, 267 Ill. App. 119; Passey v. Budge, 85 Utah 37; Tady v. Warta, 111 Neb. 521; Evans v. Roberts, 172 Iowa 653.) II. Defendant did not admit to malpractice. Therefore, such cases as Zettler v. Reich (281 N. Y. 729) have no application. (Greco v. Niditch, 2 A D 2d 762.) III. Res ipsa does not apply at bar. Assuming it could have been used, plaintiff waived it. (Holtfoth v. Rochester Gen. Hosp., 304 N. Y. 27; Bailey v. Bethlehem Steel Co., 277 App. Div. 798, 302 N. Y. 717; Scott v. City of New York, 2 A D 2d 854; Switzman v. Aperion Catering Corp., 9 Misc 2d 343; Finn v. Pennsylvania R. R. Co., 6 A D 2d 813; Swiontek v. City of New York, 283 App. Div. 949; Whitcher v. Board of Educ. of City of Rensselaer, 233 App. Div. 184; Bressler v. New York R. T. Corp., 270 N. Y. 409; Spinella v. City of New York, 278 App. Div. 847; Goodheart v. American Airlines, 252 App. Div. 660.) IV. Dr. Silverstein’s opinion that a sharp instrument penetrated the lingual periosteum and severed the lingual and chorda tympani nerves was based upon the history he procured and, therefore, since he was admittedly not a treating physician, was' inadmissible and did not prove that a sharp instrument penetrated the area and severed the nerves. (Belter v. Van Winkle, 234 App. Div. 886; Davidson v. Cornell, 132 N. Y. 228; Young v. Stevens, 132 N. J. L. 124; Devore v. Schaffer, 245 Iowa 1017.)
   Desmond, J.

The trial court correctly dismissed the complaint since there was no proof in the record that any negligent act of defendant caused the nerve injury. Plaintiff’s whole theory of action was that defendant had negligently severed the two nerves in question by improperly allowing his drill to penetrate the lingual periosteum which lies between the extracted tooth and these two nerves. However, the only testimony on this subject was given by defendant himself and he swore not only that he did not cut these nerves but that he did his work on the other side of the tooth, that is, between the gum and the cheek, and did not drill through the tooth and out the other side. There is no evidence direct or circumstantial that the instrument used by defendant came near these nerves. Thus it was beside the point to establish that it was contrary to accepted procedure to penetrate the lingual periosteum during the removal of the tooth.

On a sufficient factual showing it might in some such case be possible for a jury to draw the inference on circumstantial nondirect evidence that a defendant must have penetrated the periosteum since no other possible cause of the injury existed. However, that is not this case. Plaintiff’s expert Dr. Silver-stein did not say that .the destruction of these nerves could have resulted from surgical cutting only. His diagnosis was that plaintiff “ had a degeneration ’ ’ of these nerves. Elsewhere he said that she had suffered a degeneration or destruction of these two nerves ’ ’ and that he was certain that the condition could only come from a severance or destruction or degeneration ” of the nerves. He did not rule out (except by speculation from assumed facts not proven) the possibility that the condition of the nerves might have been caused nontraumatically. In drawing or attempting to draw the inference that the nerves had been cut by defendant, Dr. Silverstein was applying the fallacy of “ post hoc ergo propter hoc In other words, he attempted to testify in the form of an opinion to a supposed fact of which he could have no knowledge, that is, that the destruction of the nerves was caused by surgical cutting.

The Trial Justice ruled out Dr. Silverstein’s testimony that the penetration of the periosteum and destruction of these nerves was contrary to professional practice but this ruling did not prejudice plaintiff since defendant himself testified to the same thing and as we have pointed out this was beside the point because there was no proof that such surgical cutting had occurred.

It is settled and unquestioned law that opinion evidence must be based on facts in the record or personally known to the witness (Weibert v. Hanan, 202 N. Y. 328, 331; Marx v. Ontario Beach Hotel & Amusement Co., 211 N. Y. 33, 38). He cannot reach his conclusion by assuming material facts not supported by evidence (People v. Patrick, 182 N. Y. 131, 172). What the witness Silverstein tried to do was to testify, despite his lack of knowledge, as to what he assumed or believed defendant had done and then from those assumed facts draw an inference of malpractice. But the facts of the occurrence could only be determined by the jury on competent proof. In the absence of such proof there was no basis for any opinion and the attempted opinion was worthless as evidence. None of the malpractice cases cited by plaintiff dispute this rule since they all deal with instances where the facts of what the defendant did were in the record and where an expert was then allowed to state whether what the defendant had done was in accord with accepted professional practice, etc.

Actually plaintiff’s counsel, in opposing a motion to dismiss the complaint, seemed to have realized all this since he argued that this injury could have come about only through a penetration by the burr of the lingual périosteum. The difficulty was that he had not proven that it came about this way and it is evident in the record that there were other possible causes of the degeneration of these nerves. It may be highly likely that something occurring during this operation did cause this condition but it was not proven on this record.

The judgment should be affirmed, with costs.

Burke, J. (dissenting).

In this action to recover damages for personal injuries due to alleged malpractice on the part of defendant, a dentist, the complaint was dismissed at the close of the plaintiff’s case.

The principal issue on this appeal is whether the plaintiff made out a prima facie case of malpractice. Although the trial court erred in ruling that an expert witness called by the plaintiff was not qualified to express an opinion as to customary and accepted dental procedure, since defendant during his testimony supplied the information sought to be elicited from plaintiff’s expert, the plaintiff was not materially prejudiced.

In reviewing a judgment which dismisses a complaint, “ we must take the facts in a light most favorable to the plaintiff and, in determining whether the facts proved constitute a cause of action, give him the benefit of every favorable inference which may reasonably be drawn”. (Osipoff v. City of New York, 286 N. Y. 422, 425; Lubelfeld v. City of New York, 4 N Y 2d 455, 460.) Keeping in mind this axiom, a resumé of the record demonstrates that plaintiff has proven a cause of action.

Plaintiff had a bone impacted lower left third molar. There was a marked curvature which necessitated a surgical extraction. Upon the recommendation of her family dentist, she went to the office of defendant, an oral surgeon, for the operation. The defendant, after administering-a general anesthetic, made an incision over the crown of the tooth and by use of a surgical bone burr (i.e., a small drill) removed enough of the bone to allow for the removal of the tooth. The tooth was raised and removed by means of an elevator introduced into a small hole drilled in the root of the tooth.

Plaintiff, upon regaining consciousness, experienced a pain on the left side of her face in the area where the tooth had been removed. In the evening she informed her family dentist that the left side of her tongue was numb. The following day she found an absence of not only feeling, but also taste. She visited the family dentist who performed tests which convinced him that the left side of plaintiff’s tongue had no sense of feeling or taste. Five days after the extraction, defendant, according to the plaintiff, told her that “ the nerve of the tongue had been affected when the tooth was pulled and that it does happen maybe one out of a hundred cases, and there wasn’t anything that could be done for it ”. Plaintiff then consulted her family doctor who tested her reactions, established the loss of feeling on the left side of her tongue and administered a series of injections. At the date of the trial, more than six years after the extraction, plaintiff asserted she had no sense of taste or feeling on the left side of. her ■ tongue. . Her tongue, she said, reacted sensitively to touch and to flavour prior to this extraction. This testimony is corroborated by her family dentist and her family doctor. ■:

Defendant contends that .all. the surgical work was done between the left cheek and the teeth and that no instrument was used on the lingual (tongue) side... He stated that the loss of the sense of fe,eling and of taste was not expected and did not normally follow such an oral surgical procedure. He also admitted it is contrary to accepted oral. surgical procedure to penetrate the lingual periosteum during the removal of an impacted left lower molar. : ■

.On the tongue side of the lower gum area (the lingual periosteum) are two nerves, the chorda tympani, which supply the sense of taste to the tongue and the lingual nerve,, which supplies the sense of feeling. These two nerves are separated from the tooth which was'extracted by the periosteum (described as a fibrous layer,, fairly .strong,, about as . thick as two piéces of paper) and the mandibular bone.

Dr. Silverstein, a specialist in the. field of otorhinolaryngology, was called as an expert witness by plaintiff. He stated he was familiar with-the operative procedures that defendant used in extracting the: tooth, had- examined plaintiff’s mouth on two, occasions and administered tests. He said, among other things, that the two nerves which supply the sense of taste and feeling to the left side of the tongue are dead; that the condition is permanent; and that there is- nothing; that can be done medically to improve, plaintiff’s condition. He then testified that plaintiff’s condition could only have been caused by “a severance or destruction or degeneration of the chorda tympani and lingual nerves ’ ’. He further testified that in this- case it was his opinion that the condition was caused by “ The entrance of a sharp instrument, with enough force to cut the nerve ’ ’; that the instrument penetrated the lingual periosteum and cut the nerves and that such forceful penetration was a competent producing cause of plaintiff’s ¡condition. It is undisputed that the.se two nerves are always inside .of the periosteum. In order to sever these two nerves you must go through the mandibular bone, through the periosteum and into the floor of the mouth.

On the basis of this evidence, it is clear that a jury could infer that defendant, contrary to accepted oral surgical procedure, penetrated the lingual periosteum with the surgical bone burr and severed the two nerves, thereby causing a loss of the sense of taste and tactile sensation on the left side of plaintiff’s tongue.

In the usual case, the plaintiff is required to produce expert testimony that defendant has violated accepted and approved medical or dental standards (Pike v. Honsinger, 155 N. Y. 201; Bernstein v. Greenfield, 281 N. Y. 77, 80) unless the conditions are “ of such a character as to warrant the inference of want of care from the testimony of laymen or in the light of the knowledge and experience of the jurors themselves ” (Benson v. Dean, 232 N. Y. 52, 56; Meiselman v. Crown Heights Hosp., 285 N. Y. 389). In the cited cases there was direct evidence of acts or omissions by defendant and the issue was whether expert testimony was necessary to establish lack of skill or whether the jury could infer negligence. However, in this case the defendant was the only witness who could give direct evidence that the lingual periosteum was penetrated. The nerves, being below the floor of the mouth, could not be examined except upon dissection. Under such circumstances, where the defendant denies the performance of the acts which constitute admitted negligence, resort must be had, of necessity, to circumstantial evidence which may, taken together with the denial of the defendant, raise a question of fact for the jury.

The testimony of plaintiff’s witnesses, supported by the defendant’s own testimony, was sufficient to permit the jury properly to infer the commission of a specific act of malpractice or come to a conclusion that the consequences of the defendant’s operative treatment of the plaintiff was due to want of reasonable care.

Accordingly, the judgment of the Appellate Division should be reversed and a new trial granted, with costs to the appellant to abide the event.

Judges Dye, Fuld and Van Voorhis concur with Judge Desmond ; Judge Burke dissents in an opinion in which Chief Judge Conway and Judge Froessel concur.

Judgment affirmed.


text:
    In the Matter of Empire State Building Corporation, Appellant, against William E. Boyland et al., Constituting the Tax Commission of the City of New York, Respondents. [350 Fifth Ave., Borough of Manhattan.]
    Argued May 8, 1958;
    decided June 25, 1958.

      Adlai E. Stevenson, of the Illinois Bar admitted on motion pro hac vice, Simon H. Rifkimd, Ernest Rubenstein and Arthur Liman for appellants.

      Peter Campbell Brown, Corporation Counsel (James J. McGowan and Morris Handel of counsel), for respondents.
   Order affirmed, with costs; no opinion.

Concur: Chief Judge Conway and Judges Desmond, Dye, Fuld, Froessel and Van Voorhis. Taking no part: Judge Burke.


text:
    Ralph Gordon, Appellant, v. M. P. Art Service, Inc., et al., Respondents.
    Argued May 16, 1958;
    decided June 25, 1958.

      Michael Alexander and Leonard H. Steibel for appellant.

      Irving Parker and Maxwell E. Cox for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Chief Judge Cojtway and Judges Desmond, Dye, Fuld, Froessel, Van Voorhis and Burke.


text:
    In the Matter of the Estate of Philip Liberman, Deceased. Bertha Liberman, Appellant; Norman J. Liberman et al., as Executors and Trustees of Philip Liberman, Deceased, et al., Respondents.
    Argued April 28, 1958;
    decided June 25, 1958.

      James N. Vaughan for appellant.

      Lionel S. Popkin and Abraham S. Guterman for Norman J. Liberman and others, respondents.
   Order affirmed, without costs; no opinion.

Concur: Chief Judge Conway and Judges Desmond, Dye, Fuld, Froessel, Van Voorhis and Burke.


text:
    In the Matter of the Estate of Jacob P. Galewitz, Deceased. Hannah Galewitz et al., Appellants-Respondents; Chase National Bank et al., as Executors of Jacob P. Galewitz, Deceased, et al., Respondents-Appellants.
    Argued January 14, 1958;
    decided June 25, 1958.

      Samuel Robert Welts and Milton B. Franklin for Hannah Galewitz, appellant-respondent.

      Edward R. Finch, special guardian, for Edward Galewitz and others, infants, appellant-respondent.

      George Green, respondent-appellant in person and for Chase Manhattan Bank, respondent-appellant.

      James N. Vaughan for Samuel Galewitz, respondent-appellant.
   Order affirmed, with costs to all parties appearing separately and filing separate briefs payable out of the estate. No opinion.

Concur: Chief Judge Conway and Judges Desmond, Dye, Fuld, Feoessel, Van Vooehis and Burke.


text:
    Catherine Jordan, as Administratrix of the Estate of Joseph Jordan, Deceased, Plaintiff, v. City of New York et al., Defendants. City of New York, Third-Party Plaintiff-Respondent, v. Grove, Sheperd, Wilson & Kruge, Inc., Third-Party Defendant-Appellant.
    Argued March 27, 1958;
    decided June 25, 1958.

      Joseph J. Brophy, Desmond T. Barry, James A. Treanor, Jr., and Edward A. Shaw dell for appellants

      Peter Campbell Brown, Corporation Counsel (Fred Iscol and Seymour B. Quel of counsel), for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Chief Judge Conway and Judges Desmond, Dye, Fuld, Froessel and Van Voorhis. Talcing no part: Judge Burke.


text:
    In the Matter of the Estate of Jacob P. Galewitz, Deceased. Hannah Galewitz, Appellant; Samuel Galewitz et al., Respondents.
    Submitted January 14, 1958;
    decided June 25, 1958.

      Samuel Robert Welts and Milton B. Franklin for appellant.

      George Green, respondent in person and for Samuel Galewitz and others, respondents.

      Edward R. Finch, special guardian, for Barbara Galewitz and others, infants, respondent.
   Order affirmed, with costs to all parties appearing separately and filing separate briefs payable out of the estate. No opinion.

Concur: Chief Judge Conway and Judges Desmond, Dye, Fuld, Froessel, Van Voorhis and Burke.


text:
    Village of Lake George, Respondent, v. Town of Caldwell et al., Appellants.
    Argued May 12, 1958;
    decided June 25, 1958.

      F. Walter Bliss and Albert E. Beswick for appellants.

      Charles E. Nichols and Burton Andrews for respondent.
   Judgment affirmed, without costs; no opinion.

Concur: Chief Judge Conway and Judges Desmond, Dye, Fuld, Fboessel, Van Voobhis and Bubke.


text:
    Thomas Finan, Respondent, v. John J. Casale, Inc., Appellant.
    Argued April 30, 1958;
    decided June 25, 1958.

      Olin S. Nye and Joseph Bean Edwards for appellant.

      Louis E. Schwartz and I. Philip Sipser for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Chief Judge Conway and Judges Desmond, Dye, Fuld, Fboessel, Van Voobhis and Btjbke.