280 A.D. 836 | N.Y. App. Div. | 1952
Defendant appeals from a judgment of the County Court of Richmond County convicting her of murder in the second degree. Judgment reversed on the law and new trial ordered. In examining defendant’s witness, Dr. Seala, the Trial Judge erroneously assumed that the assistant medical examiner of the city of New York had testified for the People that in his opinion iodine poison had, with asphyxia, caused the death of defendant’s infant son. The People’s witness testified that he did not think that iodine poison caused the death. The Trial Judge also erred in demanding repeatedly, over objection, that defendant’s witness in expressing his opinion» must assume that the child was smothered to death by his mother. The hypothetical question propounded by defendant's counsel to this witness did not assume that it was the fact that defendant had smothered the child to death. The assumption was that the evidence showed that the defendant told the District Attorney that she had placed a pillow over the baby’s face and smothered it to death. It is not possible to conclude that the prolonged examination of this witness by the Trial Judge and the charge as to his testimony did not prejudice the witness in the eyes of the jurors. The People had the burden of establishing by evidence, in addition to defendant’s confession, that death was due to a criminal agency. The assistant medical examiner testified that by the autopsy he found no direct cause of death. He expressed the opinion that death was caused by asphyxia. Defendant’s witness testified that in the absence of certain findings in the report of the autopsy, it was not possible to say that asphyxia was the cause of death. His opinion
