For affirmance -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None. The opinion of the court was delivered by Weintraub, C.J.
Defendant was convicted of murder in the first degree, and the jury not having recommended life imprisonment, he was sentenced to die. N.J.S. 2A:113-4. He appeals directly to us pursuant to R.R. 1:2-1(c).
Defendant did not dispute his guilt. Rather he contended he was so intoxicated that his crime did not exceed murder in the second degree.
The victim was defendant's wife, Myrtle. They married on October 27, 1959. Their marriage, her second and his third, went poorly. The jury could readily find that defendant physically abused his wife, leading to several separations which he sought to end by force and threats of force. In August 1960 he was convicted of assault and battery upon his wife and of attempting to break into the home of Mr. and Mrs. Lighthizer with whom she had gone to live. In fact he pleaded guilty to assault and battery. Concurrent sentences of six months were imposed.
Defendant was released from jail on December 22, 1960, short of the full period of the sentences. After a visit in Pennsylvania, he returned to Atlantic City at about 6 P.M. on December 26, when he embarked upon a tour of taverns. About 2:15 A.M. on December 27, defendant made several telephone calls to the Lighthizers in which he threatened to kill his wife and also the Lighthizers. The threat to kill his wife was a repetition of a threat he had made at the time of the August incidents mentioned above. At about 7 A.M. defendant made further calls to the Lighthizers in which he again said he would kill his wife and promised trouble for them unless they forced her from their home. Lighthizer arranged to meet defendant outside of Eddy's Bar at about noon. There the argument resumed, and in response to some name-calling, Lighthizer struck defendant with the back of his hand, sending him to the ground. Defendant declined to accompany Lighthizer to police headquarters. Lighthizer went to headquarters to report the matter and was still there when sometime after 2 P.M. defendant was brought in by the police for the killing he had perpetrated in the interim.
The record shows that after Lighthizer left him at noon, defendant entered Eddy's Bar and thereafter Mike's Bar. At Mike's Bar, sometime after 1 P.M., defendant made a telephone call (it was at about this time, according to other testimony, that the deceased received a disturbing call at the restaurant where she was a waitress). Telling the bartender that he was going to kill his wife "with kindness," defendant left and went to a large retail establishment. His mission was to purchase a knife. He proceeded to the hardware section, said to be about a half of a city block from the entrance, where he examined cutlery. He rejected a normal-edged knife and asked for and bought one with a serrated edge, telling the salesgirl that "he wanted it for his mother and that his mother was going to be mad."
From there defendant went directly to the restaurant, reaching it at about 2 P.M. He walked briskly to a table where his wife and three other waitresses, all in identical
uniform, were seated. The composite testimony reveals that he approached his wife from the rear; that he drew the knife from a paper bag and said he was going to "mark up her pretty face" and was going to kill her; that after he tried to cut her throat, which she protected with her hands, he struck two lethal blows in the left lower chest; that as she lay on the floor, he spat upon her, saying "Suffer, Myrtle. Suffer the way you made me suffer. I hope you die. Nobody doublecrosses a Hudson"; "If you don't die now, I will kill you the next time"; that as others tried to relieve her, he said "Don't bother with her now. She is dead"; and that he said her son, William, "is next."
Defendant was disarmed by a patron and employees. He made no effort to flee, although at one point he said he was going to get a pack of cigarettes, in response to which he was seated forcibly. His movements were described as quick and precise, and his speech clear and coherent. He immediately recognized and addressed by name an employee who intervened. On rebuttal, police officers testified that en route to headquarters defendant repeatedly said he had cut his wife and that he wanted his lawyer, whom he mentioned by name.
As we have said, defendant claimed he was intoxicated at the time of the murder. He testified he did not recall where he was during part of the early morning of the 27th, and although he did recall later events, including his encounter with Lighthizer at noon in front of Eddy's Bar, he denied recollection of anything further until some time after the killing. His complaint is that he was not permitted to bolster this testimony by proof of the influence of liquor upon him on prior occasions.
Whether intoxication on prior occasions may be shown depends upon the issue at hand. Where a defendant asserts insanity, prior intoxication may well be part and parcel of the total picture upon which the claim of insanity depends,
in which event it may be proved. Martin v. State, 100 Ark. 189, 139 S.W. 1122 (Sup. Ct. 1911); cf. State v. Wolak, 26 N.J. 464, 473-474 (1958); State v. Agnew, 10 N.J.L.J. 165, 169-170 (O. & T. 1887); Weakley v. State, 168 Ark. 1087, 273 S.W. 374 (Sup. Ct. 1925). Similarly, where a defendant claims insanity while the State asserts he was merely drunk at the time of the crime, the State has been permitted to prove that previously the defendant was violent only when he drank. Heningburg v. State, 153 Ala. 13, 45 So. 246 (Sup. Ct. 1907); Upstone v. People, 109 Ill. 169 (Sup. Ct. 1883).
Here, sanity was not in issue. Rather the question was whether defendant in fact performed the mental operations the State must prove to elevate the crime from murder in the second degree to murder in the first degree, to wit, premeditation, deliberation, and wilfulness in the execution of the design to kill. If by reason of intoxication, alone or in conjunction with other circumstances, the jury is not satisfied beyond a reasonable doubt that an accused in fact performed all of these mental activities, it must find the State failed to sustain its burden to prove the murder was in the first degree. State v. King, 37 N.J. 285 (1962); State v. DiPaolo, 34 N.J. 279, 295 (1961); State v. Wolak, supra (26 N.J., at p. 477). The question is whether proof of behavior under alcoholic influence on other occasions can reasonably bear upon the degree of its influence at the time of the crime.
The difficulty with such proof is the virtual impossibility of showing that the pertinent conditions were constant. The impact of liquor upon a given individual depends upon variables, such as his physical and mental condition before drinking, the quantity consumed, the rate of consumption, and the time interval between drink and the effect attributed to it. Further, if substantial comparability appeared with respect to these factors, there would still remain the critical question whether on such other occasions the liquor precluded the formation of the criminal intent. For these reasons inquiries
as to prior bouts with liquor would invite collateral trials as to which the State would likely be unprepared and which not only would lengthen the trial but as well would probably tend more to confuse the issue than to cast light upon it. The likelihood of probative contribution is even more remote when, as here, it is not suggested that the accused routinely committed crimes of violence when drunk.
Such proof was rejected in Patterson v. Commonwealth, 251 Ky. 395, 65 S.W. 2 d 75 (Ct. App. 1933); Real v. People, 42 N.Y. 270, 280 (Ct. App. 1870); and perhaps also in Commonwealth v. Cloonen, 151 Pa. 605, 25 A. 145 (Sup. Ct. 1892); cf. Thompson v. Bowie, 71 U.S. (4 Wall.) 463, 471, 18 L. Ed. 423, 426 (1867). In State v. Roscus, 16 N.J. 415, 424-425 (1954), it was similarly held that proof of the effect of liquor on other occasions was not admissible to support a defendant's claim that when he signed a confession he was suffering from an extreme neurosis aggravated by excessive drinking that day. Those results are well supported by the general proposition that a trial judge may, in his discretion, exclude evidence when the probative force is meager at best and its admission will lead to collateral inquiries which will unduly prolong the trial and probably confuse or ...