But the

opinions. To this rule there are certain exceptions. question asked by the defendant's counsel does not fall within any of those exceptions. Even in cases where the question of mental soundness or insanity is involved, a lay witness cannot properly give an opinion as to the mental capacity of the person, but at most can give an impression as to whether the acts observed by him were rational or irrational. (People v. Rector, 19 Wend. 569, 574; People v. Bodine, 1 Denio, 281, 311; Kennedy v. People, 39 N. Y. 245, 257; Messner v. People, 45 N. Y. 1, 4; Van Zandt v. Mut. Ben. L. Ins. Co., 55 N. Y. 169, 179; People v. Wright, 136 N. Y. 625, 629.) Without further discussion of this question, we are of the opinion that the court properly excluded this evidence, and that there was no error in its rulings in that respect.

Fourth. The appellant also claims that the court erred in admitting the testimony of the witnesses Dabell and Hughes under his objections and exceptions as to the appearance, silence, acts, movements, demeanor, temperature and physical condition of the decedent, what she did and what she did not do while in the presence of the defendant, although he said nothing and performed no act which in any way tended to inculpate him by admission or otherwise. By these rulings the court, in purpose and effect, admitted proof to establish the imagined or conjectured impulses of the decedent, as evinced by her looks, her change of countenance, and by her subsequent unproved declarations, as well as the condition and temperature of her body after a meeting between her and the defendant. It also admitted the evidence of the witness Emily Bugbee of the alleged statements of the defendant, not amounting to or including an admission of any fact relating to the homicide, but which related only to a mere newspaper report, apparently inspired by the witness, to the effect that, although she had informed the defendant that the decedent could not talk, she had said to a newspaper reporter that the decedent had declared that he (the defendant) did it, and to which he added that she

must have been mistaken as his wife must have been calling for him. We are aware of no rule of evidence under which this proof was properly admissible. The learned trial judge was obviously of the opinion that the presence of the defendant rendered proof of everything that occurred or did not occur absolutely admissible, without regard to its character, by whom it was said, done or omitted, or to the circumstances or conditions under which the acts or omissions of the decedent or of the defendant occurred. In that, we think, he was in error. The practical effect of his rulings was to allow the prosecution to place before the jury the observed or imagined condition, appearance, movements, conduct and demeanor of

valid proof,

the decedent from which to conjecture a mental condition of which there was not only no but which, when proved, had no proper bearing upon the questions at issue. The possible and intended, if not the probable and natural effect of that evidence was to induce the jury, notwithstanding her positive denial, to believe that the decedent was of the opinion that the defendant committed the offense of which he was charged. The issue was not what the decedent may have thought or believed, but whether the de fendant committed the offense. This evidence was inadmissible, not only because it was an attempt to prove a mere unsubstantiated conjecture as to a matter of which neither the witness nor the jury had any knowledge, but also for the reason that the decedent's belief was wholly incompetent and immaterial. That during the occurrences to which this evidence related the defendant made any actual admission, direct or indirect, of any fact material to the issue, cannot be even pretended. Nor did he perform any act that could be regarded as an admission of any such fact, unless his silence constituted such an admission.

The only possible ground upon which the silence of a party can be admitted as evidence against him is that it amounts to an acquiescence in a statement or act of another person. The

rule admitting such evidence is to be applied with careful discrimination. Such evidence is most dangerous and should be received with great caution, and not admitted unless of statements or acts which naturally call for contradiction, or unless it consists of some assertion with respect to his rights in which, by silence, the party plainly acquiesces. To have that effect, his acquiescence must be exhibited by some act of voluntary demeanor or conduct. If the claimed acquiescence is in the conduct or language of another, it must plainly appear that such conduct or language was fully known and fully understood by the party before any inference can be drawn from his passiveness or silence. The circumstances must not only be such as to afford him an opportunity to act or speak, but such as would ordinarily and naturally call for some action or reply from persons similarly situated. If the condition be one of doubt as to whether a reply should have been made, the evidence should not be received. Declarations or acts made or performed in the presence of a party, when received in evidence, are received not as evidence in themselves, but in a proper case and under proper circumstances and conditions they may be admitted to ascertain what the party to be affected said or did, but he is not to be prejudiced by the statements or acts of another in his presence, although silent, unless the statements or acts are such as to call for some response or act upon his part. (People v. Koerner, 154 N. Y. 355, 374; Lanergan v. People, 39 N. Y. 39; Kelley v. People, 55 N. Y. 565, 572; People v. Willett, 92 N. Y. 29; Wright v. People, 1 N. Y. Crim. Rep. 462.)

Thus the question is presented whether, under the circumstances existing at each of the defendant's visits to the bedside of his wife, of which evidence of his silence was given, it can be properly held that he thereby acquiesced in any act or acts of the decedent which had any prohibitive bearing upon the issue. Thus we are led to inquire in what can it be properly said that he acquiesced? Nothing was said to which any reply

I could have been made. Nor do we think there was any act of the decedent which, under the circumstances proved, demanded action or remark upon the part of the defendant to avoid acquiescence therein. What should he have done? With no proof that the defendant observed these things, was he required to interrogate her as to her change of countenance, as to the reason why she withdrew her hand, why she did not speak to him, or look at him, or why she turned her head, or be bound by the conjecture of a jury as to what impelled such acts upon her part, although, under the proof, they may have been wholly involuntary? We think not. She being at most only semi-conscious, he was not required to, nor could he properly, speak of or criticise her conduct, even if it was as testified to and was observed by him. But there was no proof that he observed any peculiar action or conduct upon her part, or anything in the nature of an accusation by her. In view of the fact that she persistently declared him to be innocent, naturally he would not anticipate or observe an accusation in anything that she was proved to have done or omitted. It is also to be remembered that the defendant had been frequently enjoined by the physicians and nurses in attendance to maintain silence, and not to disturb the decedent when in her presence; that the decedent, when approached by her physicians or nurses and her wrist was touched, would not only make a convulsive movement of her hand, but would turn over on her left side with her face to the opposite wall; that she was partially paralyzed, and, as a consequence, her speech was essentially impaired and difficult to understand; that her face was thereby distorted, and that the defendant was upon each of the occasions when he visited her room in the immediate custody of an officer who controlled his coming and departure. In view of the fatal illness of his wife and of the positive injunctions of silence by her physicians and nurses, his omission to speak in her presence certainly could not be properly regarded as an acquiescence by him in anything she was proved to have done or omitted.

Moreover, he was at the time under arrest and in the custody of an officer, and might well have been silent without its being regarded as an acquiescence in any act proved to have been performed. (Commonwealth v. McDermott, 123 Mass. 440; State v. Diskin, 44 Am. Rep. 449.) We think the court erred in admitting much of this evidence, and also in permitting the witness Dabell to state her knowledge of the impulses of the decedent when she withdrew her hand, from her looks and from what she subsequently said, with no proof as to what that statement was. The only remaining question in respect to those rulings is whether they constituted such errors as require a reversal. Had that evidence been casually or incidentally admitted, and no particular force or effect given to it by the court or jury, we might perhaps be justified, under section 542 of the Code of Criminal Procedure, in disregarding the errors in its admission as not having affected the substantial rights of the defendant. But that is not the situation. In submitting the case to the jury the learned trial judge not only instructed them that they might consider the dying declarations of the decedent, but in effect charged that they might disre gard her statement that the offense was not committed by her husband. Upon that question the jury were told that they might consider the action and conduct of the defendant in the presence of his wife. Their attention was also expressly called to the testimony of the witnesses Dabell and Hughes, and they were informed that they had the right to draw such inferences from his acts and conduct upon those occasions as they thought proper. That portion of the charge which submitted to the jury the question whether the decedent knew who committed the crime when she was asked if George did it was excepted to by the defendant. The court then said: "That is a question for you, gentlemen.” Thus the court submitted to the jury the question whether Mrs. Smith knew that the defendant committed the homicide. Her knowledge was unimportant as bearing upon the main issue, and, hence, for that purpose proof