For affirmance -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall and Schettino. For reversal -- None. The opinion of the court was delivered by Schettino, J.
Defendant Bertone appeals as of right (R.R. 1:2-1(c)) from a judgment based on a verdict of murder in the first degree with a recommendation of life imprisonment. That defendant, on November 7, 1957, at about 8:30 A.M., killed his "common-law wife" by stabbing her approximately twenty-two times with a knife on the fire escape outside the windows of their furnished apartment in West New York is not in dispute. There were eyewitnesses to the killing. Bertone sought an acquittal by reason of insanity.
Defendant's personal history is important to the defense raised. His mother died in 1934 when he was seven or eight, and his father and sister Margaret took care of him, the latter until she married in 1947. His sister testified that, while under her care, Bertone was "very withdrawn and very unsociable." Defendant left school before he completed the 10th grade and worked at different jobs until 1944, when he was drafted into the Army Air Force. Upon discharge in 1947, he re-enlisted, and in November of that year, he was married. One child was born of this marriage. While in service he attained the rank of sergeant but was broken for going A.W.O.L. just before being honorably discharged in 1950.
On August 4, 1950 Bertone was committed to the Hudson County Hospital for Mental Diseases by his wife. The certificate of insanity accompanying Mrs. Bertone's request, signed by a physician who examined defendant on August 3, showed that Bertone suspected his wife of infidelity and labored under delusions connected therewith. The doctor certified that defendant was violent, dangerous and mentally depressed, and that Bertone stated to him that he would kill his wife. Doctor Reznikoff, Clinical Director of the Hudson County Hospital, concluded at that time that defendant was
suffering from schizophrenic reaction, paranoid type. Nevertheless a member or members of his family obtained his release on August 18, 1950, against medical advice.
On January 31, 1951 Bertone was examined by Doctor Zitani, a specialist in the field of neurology and psychiatry, who was of the opinion that defendant was a paranoid schizophrenic and recommended to his relatives that he be recommitted. In March he was readmitted to the Hudson County Hospital. Hospital records show that his condition was unchanged from that of his prior stay and that he expressed ideas of infidelity connected with his wife to the staff physicians. In October 1951 he was paroled, his condition evidently in a state of remission, although Doctor Zitani later that month found that Bertone was still suffering from delusions and hallucinations. However, the doctor testified that even in a state of remission, the patient still harbors suspicions.
Soon after his release from the hospital, Bertone separated from his wife. About six months later, defendant met the decedent, then sixteen years of age. They kept company until April 1954 when defendant went to Iran to live with a brother and to look for a job. Unable to secure any work, he returned to the United States the end of that year and resumed his relationship with decedent. When decedent became pregnant in 1955, they represented to her father that they had gone to Maryland and had been married. Thereafter, they lived together as man and wife. The first of two children of this relationship was born in October.
Between his return from Iran and October 1957, defendant held several jobs. From October 1955 to May 1956 he worked with his "father-in-law" in Totowa. In September 1957 the couple left the children with her parents and went to Denver, evidently with the thought of residing there, but they returned within three days of their departure. In early October 1957 they rented a furnished room in West New York. On October 18 defendant re-enlisted in the Army and was sent to Fort Dix.
After Bertone left for service, decedent was supposed to move back with her parents. On November 1, 1957 Bertone received a week-end pass and visited her mother. When he did not find decedent there, he went to their room and, according to a letter written by him on November 4 to her father, found another man there under the bed, whom he was unable to catch after a chase. On November 3 he returned to Fort Dix.
On November 4 decedent helped Bertone's sister Margaret move to Clifton. The next day, both women went to Fort Dix to consult with defendant's superior officer and two Army psychiatrists. They returned to Clifton and decedent spent the night with Margaret.
That same day, November 5, Bertone went A.W.O.L. Some time between noon and 1 P.M. he purchased the knife with which he subsequently killed decedent. When he could not locate her, he went to their furnished room and slept there alone that night. Defendant picked up decedent at work the afternoon of November 6, and they spent the night before the killing in their room.
In January 1958 counsel were appointed for defendant. Doctor Reznikoff and Doctor Collins, Clinical Director of the New Jersey State Hospital at Greystone Park, were appointed by the court to examine defendant. As a result of an examination on January 21, 1958, both concluded that he was suffering from schizophrenic reaction, paranoid type. At that time, Bertone complained that his paramour had been unfaithful to him. He also said he heard voices while in the army and in jail which accused him of perversion. As a result of this examination, he was committed to the New Jersey State Hospital in Trenton.
Bertone was returned to the Hudson County jail in December 1959. Doctor Zigarelli, consultant at Greystone Park, examined defendant on March 12, 1960, and although he was of the opinion that defendant still had a schizophrenic personality underneath his behavior pattern, the psychotic process was in remission, and Bertone was found fit to stand trial.
That summer a jury was unable to reach a verdict on the issue of legal insanity at the time of the killing. A trial on all the issues, which resulted in the verdict from which ...