Marcus v. Joseph

Per Curiam.

In our opinion the provisions of section 308 of the Code of Criminal Procedure respecting the employment of experts as witnesses are limited to capital cases. The sentence in question in section 308 referring to employment of experts and beginning with the words “ In any case ” was added by chapter 242 of the Laws of 1918, entitled “ AN ACT to amend section three hundred eight of the code of criminal procedure, in relation to expert witnesses for the defendant in cases where the offense charged in the indictment is punishable by death.” (Italics ours.) Obviously at the time of such addition, the Legislature intended to limit the amendment to cases in which the defendant was charged with a capital crime. (See People v. Draper, 169 App. Div. 479, 485.) In the context of the whole statute, the sentence here in question may not be said to be so unambiguous as to afford basis for a clear warrant in law. In People v. Snyder (297 N. Y. 81, 93) Judge Desmond in a concurring opinion referred to section 308 and pointed out that in capital cases attorneys and other facilities for a proper defense were provided at public cost.

Defendant in the present case would have been amply protected if the County Judge had resorted to section 658 et seq. of the Code of Criminal Procedure expressly providing for inquiry into the sanity of a defendant by physicians attached to State or city hospitals. Such inquiry does not prevent an impecunious defendant in a criminal case from presenting any defense to any trier of the fact; on the contrary it assists him by providing in New York City (Code Crim. Pro., § 659) two qualified psychiatrists aided by an assistant corporation counsel assigned for that purpose; and there is nothing to prevent a defendant from using the testimony so procured if so advised. In reason there are good grounds for distinguishing between allowances for expert fees in capital cases and in other criminal cases. The present interpretation would permit employment of experts under section 308 in any and all types of criminal prosecutions including prosecutions for misdemeanors and would impose upon the counties an onerous, and in the light of the provisions of section 658 et seq. of the Code of Criminal Procedure an unnecessary burden of expense. In this case the maximum sum allowable for one expert was granted. As this is a proceeding in the nature of mandamus, the petitioner must establish a clear legal right; to justify the assumption of power to control the public purse requires a clear warrant in law. We do not find such clear warrant here.

The order appealed from should be reversed and the petition dismissed, with costs.