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State v. White

Decided: May 26, 1958.


On appeal from the Passaic County Court.

For reversal -- Chief Justice Weintraub, and Justices Heher, Jacobs, Francis and Proctor. For affirmance -- Justices Wachenfeld and Burling. The opinion of the court was delivered by Weintraub, C.J. Heher, J. (concurring in reversal). Francis, J. (concurring). Wachenfeld, J. (dissenting).


Robert Tourse and Le Roy White were convicted of murder in the first degree. Tourse was sentenced to life imprisonment upon the jury's recommendation and does not appeal. There was no recommendation for White, and he appeals from the judgment imposing the death penalty.

The homicide occurred in the course of a robbery on July 24, 1957. White freely admitted his role in the killing. He and Tourse planned the holdup. Tourse remained in

his automobile while White, armed with a revolver, entered the neighborhood grocery store of Joseph Klein. According to White, Mr. Klein, age 75, resisted, and to subdue his victim he struck him with his fist. However, the injuries, including a fracture of the skull, were such that the medical examiner inferred there were "blows to the head by blunt instrument." Mr. Klein died on the day of the attack.


White offered the defense of insanity.

The evidence would well warrant a finding that White was addicted to heroin, taking daily injections. According to White, the drug was effective for nine to ten hours, after which he experienced symptoms of withdrawal. The thesis of the defense was that the holdup was conceived and executed to acquire funds to purchase heroin to satisfy the imperative bodily demand for the drug in such withdrawal stage and hence defendant should be acquitted.

Two specialists in neurology and psychiatry testified for defendant. Dr. Robert S. Garber described the withdrawal symptoms typical of advanced addiction to heroin. During that stage, according to Dr. Garber, the "physical and emotional symptoms" increase to the point of desperation so that the addict's "ability to reason things through is not nearly as logical" and hence he is "quite ill mentally and emotionally." It "is probably true, that they labor under a defect of reasoning because of the physical and the emotional symptoms," and "My feeling is that he is less able" to know the quality of the act he is doing. He agreed, however, that White "is not insane in reference to the M'Naghten rule"; that he could distinguish right from wrong, but the withdrawal experience "made him emotionally ill to a degree that he couldn't help but color his ability to do this." He added that "I think he was able to form the intent to commit the robbery, principally because he was desperate enough."

Dr. Garber testified that drug addiction over a period of years may cause "a certain amount of mental deterioration." He did not suggest that any had here occurred. Nor was there testimony that White was "insane" in any sense as of the time of trial. Dr. Garber said that when the drug is administered "there's immediate relief of the symptoms and within a short period of time [he] returns to his normal behavior." It appeared that following his arrest, White was given phenobarbital four or five times a day for a period of three weeks because of his addiction.

Dr. James B. Spradley, for the defense, testified essentially to the same effect. He said that without the drug an addict such as White "was not able to function properly." Although the withdrawal "creates a very distressing and disturbing state of mind * * * it does not distort his orientation. He still knows where he is and what he is doing. His memory is not too badly affected," but "I don't think that any of the higher mental processes are evidenced to the same degree in the absence of the drug. Thinking, reasoning, judgment, restraint of activities; all of those functions of the brain are minimal" and "distorted." Although the addict knows what he is doing, "the demand for the drug is so great he cannot exercise judgment and restraint on his behavior to the same degree that a normal person could." He agreed that White "knew the difference between right and wrong," knew that what he did was wrong and a violation of the law, and was able to form the intent to rob, but "These people are no longer free agents. The need of the drug controls them."

We add that White's testimony, although descriptive of the painful withdrawal symptoms, reveals a clear appreciation and recollection of the crime. He recounted the planning and perpetration of the robbery and attack in detail.

Upon this record the trial court charged that voluntary use of narcotics will not excuse or justify a crime; that if such use results in a mental disease, the disease will receive the same recognition as insanity arising out of any other cause; and that where as here the claim is temporary

insanity, the issue is whether "the accused was laboring under a defect of reason as not to know the nature and quality of the act he was committing, or if he did know it, that he did not know what he was doing was wrong." Thus the issue went to the jury, in terms of the M'Naghten test applied to a temporary mental derangement.

Defendant urges the restless question whether the M'Naghten rule is a correct approach to the defense of insanity. We fail to see how this case presents the question. We say this because the competing tests all require some form of mental disease or defect and none appears in the record before us.

That M'Naghten requires a showing of mental disease is evident from the statement of its concept, that criminal culpability exists unless "at the time of the committing of the act, the party accused was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or, if he did know it, that he did not know that he was doing what was wrong." Mackin v. State, 59 N.J.L. 495, 497 (E. & A. 1896). The irresistible impulse addendum to (or perhaps interpretation of) M'Naghten likewise demands proof of mental disease, Weihofen, Mental Disorder as a Criminal Defense (1954), p. 91; 1 Burdick, Law of Crime (1946), § 213, p. 284; see passim, Annotations, 70 A.L.R. 659 (1931) and 173 A.L.R. 391 (1948), a distinction being drawn between an irresistible impulse and an impulse that just was not resisted. And so also does the New Hampshire rule, recently catapulted into prominence by Durham v. United States, 94 U.S. App. D.C. 228, 214 F.2d 862, 875 (D.C. Cir. 1954), annotated in 45 A.L.R. 2 d 1447 (1956), which would lead to an acquittal when the "unlawful act was the product of mental disease or mental defect."

Although the terms mental disease and mental defect in the irresistible impulse and Durham tests themselves call for definition, we see no expansive view of them which would embrace this case. Defendant's psychiatrists do not find any mental illness because of or independent of the use

of drugs. At best, we have a case in which drugs were voluntarily taken and in which defendant again had free choice (in the sense of the absence of impairment by disease or disorder of the mind) to turn himself in for treatment at all times when by virtue of the taking of drugs his behavior was restored to "normal" (to use the psychiatrist's term). Defense counsel were unable to find any authority which would equate the bodily demand for drugs during withdrawal to an insane compulsion which excuses. Nor have we found any unless it be Prather v. Commonwealth, 215 Ky. 714, 287 S.W. 559 (Ct. App. 1926), which dealt with a factual picture far more extreme and which in any event seems limited by Millburn v. Commonwealth, 223 Ky. 188, 3 S.W. 2 d 204 (Ct. App. 1928).

The general rule is that the voluntary use of drugs, like the voluntary use of alcohol, is not a defense to murder (in the absence of mental disease resulting therefrom), although in some situations it may be pertinent with respect to the degree of that crime by negating the existence of the specific intent to kill. 1 Wharton, Criminal Law and Procedure (12 th ed. 1957), §§ 44-49, pp. 99-116; Weihofen, supra, pp. 124-29. Although voluntary intoxication is thus said not to be an excuse for crime, yet substantial authority supports the view that it may lead to an acquittal when it excludes a required specific intent for the reason that in such circumstances the defendant did not commit the crime charged. Weihofen, supra, p. 179; 1 Wharton, supra, § 44, p. 102; see Warner v. State, 56 N.J.L. 686, 690 (E. & A. 1894).

Our cases hold that voluntary intoxication is no defense to murder, but where the State's thesis is that the killing was willful, deliberate and premeditated, intoxication which so prostrates the faculties as to prevent the formation of the specific intent to kill, will hold the crime to murder in the second degree. State v. Wolak, 26 N.J. 464, 477 (1958); State v. Tansimore, 3 N.J. 516, 528 (1950); State v. Treficanto, 106 N.J.L. 344, 352 (E. & A. 1929); State v. Mangano, 77 N.J.L. 544, 549 (E. & A. 1909); Wilson

v. State, 60 N.J.L. 171, 184 (E. & A. 1897); Warner v. State, supra, 56 N.J.L. at page 689. The same rule was applied with respect to the influence of narcotics in State v. Close, 106 N.J.L. 321 (E. & A. 1930).

In State v. Roach, 119 N.J.L. 488, 490 (E. & A. 1938), it was held with respect to felony murder that "In the absence of the interposition of a plea of insanity the state of mind of the defendant was not in issue. Intoxication in such case is not a defense and cannot reduce the crime from first to second degree." Two judges disagreed. In State v. Burrell, 120 N.J.L. 277 (E. & A. 1938), also involving a felony murder, the trial court charged first degree or acquittal. Defendant complained that a lesser degree of murder was not left as an alternative. That failure seems to have been approved inferentially. And as to the instruction that there be an acquittal if intoxication precluded formation of an intent to rob or burglarize, the court said (120 N.J.L. at page 285):

"This was, if anything, too favorable to the defendants. In State v. Marriner, 93 N.J.L. 273, affirmed 95 N.J.L. 265, it was specifically held that 'mental unsoundness produced by intoxication, even where it is so pronounced as to exhibit an entire prostration of the faculties of the defendant, is no defense against a criminal charge.'"

On the other hand, in State v. Tune, 17 N.J. 100 (1954), certiorari denied, 349 U.S. 907, 75 S. Ct. 584, 99 L. Ed. 1243 (1955), also a felony murder case, the trial judge charged at defendant's request that intoxication could be considered on the issue of intent to rob and if that intent should not be found the verdict could not be more than murder in the second degree. That instruction was approved as against objections which did not flag the issue here discussed. No reference was made to Roach or Burrell.

Here the trial court directed the jury to consider the evidence offered as to insanity in determining whether there existed the specific intent to rob and directed an acquittal if that intent was not found. This seems to have comported

with defendant's request to charge. Thus the trial court permitted the jury to consider temporary insanity on the basis of voluntary use of drugs. Presumably he did so on the strength of State v. Lynch, 130 N.J.L. 253 (E. & A. 1943). There the plea was "a total amnesia" as to which evidence was offered that for two or three years defendant "had suffered from chronic bromide poisoning, and that this condition became acute prior to the shooting as a result of the taking of a large quantity of bromides." (130 N.J.L. at page 255). It was held to be error in those circumstances to charge that the insanity which the law recognizes must be a fixed and continuous condition. Lynch involved a charge of willful, deliberate and premeditated killing, and not a felony murder.

The question whether defendant was entitled to the charge here given on the issue of insanity was not raised or argued and hence we express no view. It is enough to say that from the foregoing review of our cases, however discordant they may seem, defendant surely cannot complain, and especially in the light of his testimony that he knowingly planned and committed the holdup and the opinion of the defense psychiatrists that he did formulate the intent to rob. What defendant wanted was an instruction in terms of the Durham rule and, as we have said, the proofs in any event would not come within that doctrine.

Of course, a very different question is whether drug addiction may be considered by the jury with respect to punishment. Whether a defendant should live or die does not depend upon legal principles concerning guilt. Rather it calls for a moral judgment in which mental illness or aberrations, rejected by the jury as a defense, may nonetheless weigh heavily. Here the evidence was in fact admitted and was not removed from the jury's consideration of whether to recommend life imprisonment.


The questioning of Tourse led to White and he was apprehended. White was interrogated by a member of the staff

of the Deputy Attorney-General assigned to handle the criminal business of the county. A confession was taken stenographically under oath. White declined to sign the transcribed statement until he could obtain the advice of counsel, although he orally acknowledged the contents to be true. It was never signed. The confession was admitted into evidence over objections we shall now consider.

Defendant urges the confession was vitiated by the fact that an oath was administered. The issue seems not to have arisen heretofore in this State. Elsewhere some early authorities support defendant's position. They apparently found the exclusion to be a corollary of the rule then prevailing that a defendant was not a competent witness, rather than to rest upon the basis that the oath rendered the confession involuntary. The general view today is that a confession is admissible notwithstanding the administration of an oath. 2 Underhill, Criminal Evidence (5 th ed. 1956), § 396, p. 1012; 2 Wharton, Criminal Evidence (12 th ed. 1955), § 364, p. 77; 20 Am. Jur., Evidence, § 527, p. 450; 22 C.J.S. Criminal Law § 832, p. 1455.

An involuntary confession is one thing, and compelling a man to testify against himself is another, 8 Wigmore, Evidence (3 d ed. 1940), § 2266, p. 387, although both may converge in some cases. The usual basis for invalidating a confession improperly induced is its untrustworthiness. 3 Wigmore, supra, § 822, p. 246. Thus viewed, the compulsion of an oath to tell the truth hardly comes within the reason for the confessional rule. We turn therefore to the other phase of the inquiry, whether the privilege against self-incrimination was violated.

N.J.S. 2 A:81-8 provides that "On the trial of an indictment, the defendant shall be admitted to testify, if he offers himself as a witness." N.J.S. 2 A:81-5, provides that "No witness shall be compelled to answer any question if the answer will expose him to a criminal prosecution or penalty or to a forfeiture of his estate." See also N.J.S. 2 A:81-6. The common law rule against self-incrimination is not embodied in the Constitution of our State, but the

statutory safeguard is no less urgent and protective. State v. Fary, 19 N.J. 431 (1955).

It may be that neither of the quoted statutes is applicable for the reason that the interrogation was not in a proceeding within their meaning. 8 Wigmore, supra, § 2252, p. 320; cf. Laba v. Board of Education of Newark, 23 N.J. 364, 390 (1957). The interrogation occurred in the course of a police investigation. But the principle of fair play from which these statutes emerged must range beyond the courtroom; otherwise the privilege could be nullified. If enforcement officials simulated a judicial proceeding and persuaded a defendant he must testify upon some penalty for a refusal, an invasion of the rights of the individual might well be found.

Such, however, is not the case before us. Defendant did not suggest he believed he was compelled to answer under pain of punishment, lawful or unlawful. The statement itself would plainly dispose of any such claim if it were made. After inquiries as to defendant's full name, address, nickname, whether defendant remembered the events of July 24 and the hour at which he arose on that day, the statement reads:

"Q. Let me ask you at this point: Are you willing to give me a completely voluntary statement regarding the events of Wednesday, July 24, 1957? A. Yes.

Q. Are you doing so without any threats or promises on my part or on the part of anyone? A. That's right.

Q. In other words, have I or has anyone threatened you? A. No.

Q. Have I or has anyone promised you anything for this statement? A. No."

In these circumstances, there is no basis for the contention that the confession was involuntary or procured in violation of any right of defendant.

We add that R.S. 41:2-3.1, which authorizes county detectives and investigators of the prosecutor's office to administer oaths in relation to matters involving a violation or an attempted violation of the criminal laws of this State, does not empower the prosecutor to compel testimony. State

v. Eisenstein, 16 N.J. Super. 8, 13 (App. Div. 1951), affirmed, 9 N.J. 347 (1952).

Defendant also complains of the absence of a warning that he was free not to speak and that what he said might be used against him. He relies upon R.R. 3:2-3, which deals with proceedings before a magistrate upon preliminary hearing and provides in subparagraph (b) that the magistrate "shall * * * inform the defendant of his right to make a statement not under oath as to the charge against him, that he is not required to make such a statement and that any statement made by him may be used against him." The rule governs proceedings before a magistrate. It was not designed to regulate the conduct of executive officers, nor to prescribe by implication any rule of evidence applicable to confessions given to them. See People v. Randazzio, 194 N.Y. 147, 87 N.E. 112 (Ct. App. 1909). A failure to warn is not per se a bar to admissibility. State v. Wise, 19 N.J. 59, 99 (1955); State v. Pierce, 4 N.J. 252, 261 (1950); cf. State v. Fary, supra, 19 N.J. at page 435. We note that defendant must ...

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