On appeal from the Bergen County Court, Law Division.
For affirmance -- Chief Justice Vanderbilt, and Justices Oliphant, Burling, Jacobs and Brennan. For reversal -- Justices Heher and Wachenfeld. The opinion of the court was delivered by Oliphant, J. Wachenfeld, J. (dissenting). Mr. Justice Heher concurs in this dissent.
This is an appeal from a judgment of sanity entered in the Bergen County Court, Law Division, in a proceeding instituted pursuant to N.J.S. 2 A:163-2 pending the trial of the appellant on an indictment for murder. Certification of this appeal to the trial court was granted because it involves a substantial question under the Constitution of this State which is of general importance and which urgently requires adjudication by this court. R.R. 1:10-3.
The appellant, Arthur Gross, was jointly indicted together with two others, William Samuel Gibson and Joseph Patrick Norton, by the Bergen County Grand Jury for the murder
of one Hjalmar Fagerstrom. The indictment charged that on November 24, 1951, at Englewood, the defendants feloniously and of their malice aforethought, killed and murdered Fagerstrom. The murder was committed in the perpetration of a robbery. On December 3, 1952 the indictment was severed as to the defendant Gibson and he entered a plea of non vult.
On January 19, 1953 counsel appointed to defend the appellant Gross made an application for a hearing to determine the defendant's ability to be put to trial, alleging that he was unable to comprehend his position and to intelligently consult with counsel and plan his defense. The application came on for hearing before County Judge Vanderwart who granted it and decided that the matter be heard by a jury. A jury was impaneled on February 2, 1953 and a proceeding held pursuant to N.J.S. 2 A:163-2. On February 9, 1953 the jury returned a verdict that the appellant was sane and judgment was entered accordingly. From that judgment this appeal has been taken.
It is argued that Gross is not insane nor was it claimed below that he was insane. The claim advanced is that he is 27 years of age, that he has the mentality of a child six or seven years of age and that he is a mentally deficient person but that the inquiry below concerned itself with his sanity. It should be noted here that it was stipulated below "that the inquiry be confined to the sanity of the defendant."
The rule is that one who is unable to comprehend his position and to consult intelligently with counsel and plan his defense cannot be put to trial. But that does not mean that proof of partial insanity is sufficient to stay the trial. The rule in this State is that the defense of insanity in a criminal cause does not deal with the question of partial insanity and that
"An adult's responsibility for a crime is not measured by a comparison of his mental ability with an infant's, but rather the test is his appreciation of the nature and the quality of his act and the difference between right and wrong in its commission." State v. Huff, 14 N.J. 240 (1954).
The rule as there stated has been adhered to in this State from the very beginning. State v. Spencer, 21 N.J.L. 196 (O. and T. 1846); State v. Schilling, 95 N.J.L. 145 (E. & A. 1920); State v. Ehlers, 98 N.J.L. 236 (E. & A. 1922); State v. Auld, 2 N.J. 426 (1949).
The proceeding below was in the nature of an inquest of office and collateral in nature, and in such a proceeding the same rule is applied to the facts as they exist. The test is as stated in State v. ...