Rehearing Denied October 16, 1951.
Fred O. Wilson, Atty. Gen., Phil J. Munch, Asst. Atty. Gen., Warren L. McCarthy, Maricopa County, Phoenix, Atty. (Joseph F. Walton, Phoenix, of counsel), for appellee.
Laney & Laney and Lewkowitz & Weland, all of Phoenix, for appellant.
La Prade, Justice. Udall, C. J., and Stanford, Phelps and De Concini, JJ., concur.
La Prade, Justice.
[72 Ariz. 324] This is an appeal by the defendant, Max Alter Eisenstein, from a judgment of the Superior Court of Maricopa County, convicting him of murder in the first degree and sentencing him to life imprisonment, and from the order overruling his motion for a new trial. No challenge is made to the sufficiency of the evidence to justify the verdict and judgment. All of the grounds of appeal, being eleven in number, relate to assigned procedural defects that are claimed to have been so prejudicial as to have deprived defendant of a fair trial.
Ground of Appeal No. 1
Over objection of defendant, the deputy county attorney, Mr. Joseph Walton, in charge of the prosecution, was permitted to withdraw from a long hypothetical question put to the state's psychiatrist, Dr. Bruce D. Hart, the following assumption: "Assuming that during this period he was * * * capable of committing an impulsive act of violence without realizing the nature of that act."
Dr. Hart was of the opinion that the defendant was legally sane at the time the evidence showed he killed his wife. For the doctor to have assumed it to be true that at the time of the killing the defendant was capable of committing an impulsive act of violence without realizing the nature of that act would have required an answer to the effect that the defendant was insane. The assumption was erroneous in that it assumed the very fact in issue. It is the position of appellant that the hypothetical question, as finally put, failed to incorporate essential evidence and assumed a situation contrary to the evidence. Other expert and lay witnesses had given testimony to the effect that at the time of the killing in question and on two other occasions (1941 and 1945) when the defendant had had severe mental disturbances he was capable of committing impulsive acts of violence, without realizing the nature and consequences of the acts. It is the contention of appellant that this evidence should have been incorporated in the hypothetical question. This testimony in its very nature was opinion evidence. The
opinion of an expert cannot be predicated on the opinion of another expert. 20 Am.Jur., Evidence, sec. 791; Mount Royal Cab Co. v. Dolan, 168 Md. 633, 179 A. 54, 98 A.L.R. 1106; Christiansen v. Hollings, 44 Cal.App.2d 332, 112 P.2d 723, at page 730. In this respect, the question, as originally put, was erroneous and, as finally put omitting this erroneous assumption, was correct. The foregoing assignment is without merit.
Ground of Appeal No. 2
It is claimed that the court erred in permitting, over objection of counsel for the defendant, the prosecutor to put the following questions to, and elicit the following answers from the state's psychiatrist, William B. McGrath, M.D.:
"Mr. Walton: Q. Assuming the truth of the testimony of Dr. Bendheim here in the [72 Ariz. 325] courtroom concerning the past medical record and history of the defendant, that is, the testimony which you have heard and remember, and on the basis of that testimony as true and on the basis of your examination and your observation, have you arrived at an opinion regarding the defendant's sanity or lack of sanity on the 13th day of December, 1949, and by that I mean whether he knew the nature and quality of the alleged act and whether he knew right from wrong?
"Mr. Laney: Just a moment, object to that, may it please the court, on the same grounds and for the reason it would assume that the witness remembered everything that Dr. Bendheim stated and all the data on which Dr. Bendheim depended and he must put in a hypothetical question those matters just as I was compelled to do.
"The Court: Were you present during the testimony of Dr. Bendheim? A Yes, sir.
"The Court: Throughout the testimony of Dr. Bendheim? A Yes, sir."
It is appellant's position that it was an abuse of discretion to permit the expert witness to assume the truth of a portion of another witness' testimony by merely characterizing that portion of the testimony of the other witness "concerning the past record and medical history of the defendant, that is the testimony which you have heard and remember." (Emphasis supplied.) It is argued that it was not made plain what particular portions of the prior witness' testimony were assumed to be true and not made plain what portions thereof the expert witness "heard and remembers". An expert may give his opinion based on both the evidence, as stated in the hypothetical question, and upon his personal examination of the accused. State v. Gevrez, 61 Ariz. 296, 148 P.2d 829. This case points out that where an expert has heard the testimony bearing on the mental condition of the accused he may be permitted, under certain circumstances, to give his opinion based on the evidence as heard by him, assuming it to be true, but that the putting of a hypothetical question, setting out the facts as assumed, is the better and customary practice. This procedural error was not of sufficient consequence to be deemed prejudicial. Especially is this true, in view of the extended cross-examination of this witness, wherein he was repeatedly asked if he had given full consideration to much conduct and many enumerated acts of the defendant which showed a deviation from normal. There is no merit to the assignment under consideration.
Ground of Appeal No. 3
The third assignment of error challenges the ruling of the trial court in refusing to permit a lay witness to state his opinion as to the sanity of the accused. This particular witness, Mr. Clark, had owned and operated a private sanitarium in Phoenix, specializing in the care and treatment of mental cases designated by the witness as for the "acutely insane". [72 Ariz. 326] It was at his institution, in 1941, that Mr. Eisenstein was under the care of Dr. Kingsley, a well-known psychiatrist. Mr. Clark testified that he and his wife, a registered nurse, under the direction of physicians, had treated and cared for more than 1,000 mentally defective patients. The question, to which an objection was sustained, reads as follows: "Q Now, will you describe to the jury what you had to do with this insane man in giving those treatments?" The objection to the question was upon the ground that it referred to the defendant as an "insane man". Counsel for defendant then put this question: "Q Was he insane?
" Objection was made upon the ground the witness was not qualified to answer and the objection was sustained. It is the rule that laymen, regardless of whether they have acquired any skill with relation to insanity, may, upon stating their observations of a given person, testify whether, in their opinion, that person was insane. Non-expert witnesses may express opinions as to sanity or insanity only after they have testified to acts, conversations and conduct of the person whose sanity is in question, which to some extent indicates sanity or lack of sanity and upon which they base their opinions. Such a witness must testify from personal knowledge and observation and not from reputation. 20 Am.Jur. Evidence, sec. 852. Technically, the witness should have been allowed to answer the question. No prejudicial error resulted in view of the fact ...