¶1I 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 *630on this record the Trial Judge should have charged the jury on the question of intoxication.
¶2Other 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.
¶3The 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).
¶4The 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 ’ ’.
¶5"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 *631of 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.)
¶6It 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.
¶7However, 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. *632427, 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.
¶8“ 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
¶9I 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.
¶10However, 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.
¶11During 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).
¶12Exclusion 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 com*634píete 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.
¶13To 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.
¶14In 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.
¶15Nor 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, *635while in Koerbersuch 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.
¶16Nothing 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).
¶17In my opinion, the judgment of conviction should be affirmed.
¶18Judges 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.
¶19Judgment reversed and a new trial ordered.