On error to the Hudson County Court of Oyer and Terminer.
For the plaintiff in error, James P. Dolan and Thomas Tumulty.
For the defendant in error, John Drewen.
The opinion of the court was delivered by
BODINE, J. Raymond George, a lad nineteen years of age, was convicted of murder in the first degree. He and two companions, on the evening of December 12th, 1930, having stolen an automobile in New York City, were on their way to commit a robbery in Walmuth's store in Newark. A police alarm had been sent out in Jersey City to apprehend a man wanted in Bayonne. Edward Ruark, a Jersey City motorcycle officer, observed George driving in a car without a license at Communipaw and Westside avenues. Concluding that he might be the man wanted in Bayonne, he gave chase. George finally turned into a dead end street and thus trapped was ordered by Ruark to show his license. Instead, he leaped from his car, drew a 45-calibre pistol and commanded the officer, who was in full uniform, to stick up his hands. Ruark drew back and was making an effort to draw his own gun, when he was shot. The wounded officer was able to fire some shots and to blow his whistle while George and his companions fled. Other officers gave chase and George was soon apprehended. Officer Ruark, in a dying declaration described the shooting and George signed a confession describing his crime and the circumstances leading up to it.
The facts relating to the shooting and flight are not disputed, the defense interposed being insanity. There happens also to be no dispute that some years before George had been committed to an insane asylum for some mental trouble.
The exclusion of a certified copy of defendant's commitment to the insane asylum was not harmful error, in view of all the evidence in the case. "The fact that a person has been adjudicated a lunatic does not mean that he is exempt from prosecution for the commission of a crime. Insane persons may be adjudicated insane and be committed for the protection of the public against violence, or for the
care and cure of the person committed, or for the conservation and management of the lunatic's property. A regular inquisition is not conclusive. In cases of confinement, where the confinement is made for the protection of the public or for the care of the individual, the commitment is evidential of nothing more than a condition justifying the confinement. A commitment adjudges no more than that it is necessary to confine the patient for the good of the public or himself, or both. The fact that a person has been committed as insane has no necessary relation to the question whether such a person can intelligently go to trial for a crime. Persons having some forms of insanity are as responsible for crimes committed by them as normal persons." State v. Noel, 102 N.J.L. 659, 671.
The learned trial judge in submitting the issue raised by the plea of insanity to the jury did so in almost the precise language of Chancellor Runyon in Graves v. State, 45 N.J.L. 347, 359, 360. In this there was no error. The chancellor said in that case: "Nor was there any error in the refusal of the court to charge as requested by the prisoner's counsel on the subject of insanity. They had charged that the burden of proof of the alleged insanity was on the accused; that the law presumes that every man is sane until the contrary be proved, and that therefore, when an accused sets up the defense of insanity, the burden of proof is upon him, and that to make effectual such a defense, the proof of the prisoner's insanity must be satisfactory, and that the accused must overcome the legal presumption of sanity by a clear preponderance of proof and by the most satisfactory evidence. * * * The plea of insanity is a defense, and the burden of proving it is on the accused. The law presumes or assumes that at the time of committing the act for which he is tried he was sane, and the state is therefore not called upon to prove that he was so. If he sets up in his defense the plea of insanity, it is incumbent on him to establish it. and if he fails to do so the presumption or assumption of sanity still stands; for it has not been overcome or shown to be false. * * * If the burden of proving the defense
[of insanity] is on the accused, as it undoubtedly is, it follows that he is not entitled to the benefit of the plea unless he establishes it. While, for obvious reasons, the defense of insanity is not disfavored by the law, yet in view of its peculiar character, and in order that it may not serve as a screen for guilt, it is regarded with jealousy, and in the interest of public justice, and in accordance with the sound dictates of a wise and necessary public policy, it is subjected to a close and careful scrutiny. The defense must be proved to the satisfaction of the jury, and it may be established by the preponderance of proof; in other words, it must be sustained by the evidence." See, also, State v. Overton, 85 N.J.L. 287, 294.
The defense called two medical experts to show insanity. They testified discursively on low mentality and impulse. The state in rebuttal called a number of physicians, who testified respecting the defendant's sanity. The test of insanity laid down in State v. Spencer, 21 N.J.L. 196, was reaffirmed as recently as State v. Noel, 102 Id. 659, 676, and the doctrine of so-called irresistible impulse was repudiated by the present Chief Justice in the case of State v. Carrigan, 93 Id. 268; affirmed, 94 Id. 566. Mental irresponsibility, because proper judgment was not exercised, is not only not the test of legal insanity approved by our courts, but seems to us to include immunity for nearly all criminal acts of ...