On appeal from the Cumberland County Court, Law Division.
For reversal -- Chief Justice Weintraub, and Justices Burling, Jacobs, Francis, Proctor, Hall and Schettino. For affirmance -- None. The opinion of the court was delivered by Weintraub, C.J.
Juan Rivera Aponte, a native of Puerto Rico, migrated to New Jersey in August 1953 and obtained work as a farm laborer at Vineland. Early in 1956, to improve himself, he wrote for an English-Spanish dictionary. In response, he received advertisements of books on black magic. He purchased them, and thus began a bizarre and macabre story.
He learned that if he prepared a magic circle he could summon the devil who would fulfill his wish. What he wanted was a woman who would be his alone. It is the Faustian theme. The vital ingredients of the magic circle, described by the author as "all these horrible and difficult to get objects," included "the cranium of a murderer." Aponte apparently understood that the skull of one who met a violent death would satisfy the text. He pondered how to obtain one. He explained that, being unaware of cemetery practices in the United States, he decided not to play the ghoul lest he become involved with the law. Instead, on October 13, 1956, he killed a 13-year-old boy, buried the body, and seven months later claimed the skull. Having thus acquired "the most important, the principal thing," he thought "I would be able to directly put myself into communication with the devil, person to person." He incanted the prescribed words, but nothing happened. He then tried to obtain "some sort of powder" of which he had read in one of the books, whereby "you could gain the love of a woman but I never got to make it." He failed because the local pharmacy required a prescription. "I
thought I would take it out in someone else's name but that I would get caught in some sort of mix-up, a crime, and I did not want to do that. I returned without my medicine. From there and from then on was born my loss of hope in what I was trying to gain."
Faithful to the book, Aponte throughout the period drank heavily of rum and wine. When his failure became evident he thrust aside the bottle and black magic, "and I was disgusted and I said to me, to myself, 'I am not going to gain anything by this. I am losing time and, who knows, my life.'" After two weeks of reflection, he returned to drink and decided to reveal the murder, but "I was afraid to go directly to the police and tell them I did it." Instead, he planned to have some trouble with his employer "and when the farmer calls the police I will tell the police everything." He precipitated the scene he contemplated, but instead of telling all, he charged he had seen his employer kill the boy. The employer and Aponte were arrested, and when the cries of the wife of the employer "entered my body like a spear," Aponte felt sorrow and his injustice to the employer. Two days later he confessed.
Aponte was indicted for murder. Upon his application, a hearing was held to determine his then sanity as well as his sanity at the time of the homicide. The jury found him sane on both critical dates. We granted certification to review the resulting judgment. 29 N.J. 278 (1959).
We merely sketch the psychiatric proof. Two experts on behalf of Aponte found him to be suffering from schizophrenia, characterized by one as the catatonic paranoid form and by the other as paranoidal; committable because of homicidal and suicidal tendencies; and legally insane at the time of the murder. The testimony for the State, synthesized, was that Aponte is and was sane, medically and legally; that his faith in black magic is in kind indistinguishable from faith in the tenets of various cults or in horoscopy. The testimony was that the book was simply his "bible,"
and if he had had greater education (his schooling totalled four years), he probably would have rejected its thesis. The State's doctors found no delusions, since Aponte had merely through ignorance subscribed to an existing text. Reference will later be made to the testimony concerning capacity to stand trial.
Aponte urges a number of grounds for reversal. Some relate to the definition of insanity as a defense and may be quickly disposed of. He seeks a review of the M'Naghten rule. This issue is concluded by our recent decision in State v. Lucas, 30 N.J. 37 (1959). He complains also of the court's charge with respect to intoxication. The issue here was insanity as a defense rather than the impact of intoxication upon the degree of homicide. There was no evidence of insanity caused by continued use of alcohol. The court's charge was correct. State v. White, 27 N.J. 158 (1958).
The substantial questions relate to the conduct of the prosecutor and to the court's charge with respect to the consequences of a finding of sanity.
In his summation, the prosecutor said:
"I live with these cases. When I try a case I try it to win, not to lose. And if I thought it was a loser I would try some other means to get out of the case."
It is clearly improper for a prosecutor to state his personal belief if the import is or may be that it is based upon facts not before the jury. State v. Butler, 27 N.J. 560, 606 (1958); see also State v. Orecchio, 16 N.J. 125, 140 (1954). A statement indistinguishable from the one before us was deemed to have that import in State v. McCormack, 93 N.J.L. 287, 289 (Sup. Ct. 1919), affirmed on opinion below, 94 N.J.L. 262 (E. & A. 1920). To the same effect, see People v. Edgar, 34 Cal. App. 459, 167 P. 891 (D. Ct.
App. 1917); Broznack v. State, 109 Ga. 514, 35 S.E. 123 (Sup. Ct. 1900); Josey v. State, 89 Ga. App. 215, 79 S.E. 2 d 64 (Ct. App. 1953); State v. Gunderson, 26 N.D. 294, 144 N.W. 659 (Sup. Ct. 1913); State v. Accardo, 129 La. 666, 56 So. 631 (Sup. Ct. 1911); People v. McGuire, 89 Mich. 64, 50 N.W. 786 (Sup. Ct. 1891); State v. Thayer, 124 Ohio St. 1, 176 N.E. 656, 75 A.L.R. 48 (Sup. Ct. 1931); Childs v. State, 13 Okl. Cr. 461, 165 P. 622 (Crim. Ct. App. 1917); Commonwealth v. Ronello, 251 Pa. 329, 96 A. 826 (Sup. Ct. ...