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 Schettino, J.
Appellant, Nathaniel Wade, was convicted of first degree murder, with a recommendation of life imprisonment, and appeals as of right. The State charged that the Wade brothers, John and Nathaniel, drove from Connecticut to Paterson on March 3, 1960, to meet James Knox, with whom they planned the robbery of Harry Eckstein, a tavern owner. In the course of the robbery, the tavern owner was shot and killed by John Wade.
The Wades were leaving New Jersey when police began pursuing their car. Their car crashed into a retaining wall at the George Washington Bridge and they abandoned it. The pursuing police shot John in the leg. Nathaniel suffered multiple fractures of the right leg in a leap from a wall. Both were immediately apprehended and taken to a New York hospital. On March 8 John waived extradition, and Nathaniel followed suit on March 22.
The Wades and their alleged coconspirator, Knox, were initially held together, but the State moved to try Knox separately. The joint trial of the Wades resulted in life sentences for both. Knox, tried later as the "finger-man," was acquitted.
Only Nathaniel Wade appealed. He alleges as error: (1) that his confession, admitted into evidence, was involuntarily made while under the influences of a demerol injection administered to alleviate pains in his leg; (2) that the trial court did not charge the jury on second degree murder and manslaughter with respect to appellant, as it did with respect to John Wade; and (3) that the prosecutor, in his summation, misused appellant's prior criminal record.
We first take up the contention that the trial court erred in admitting into evidence the confession of Nathaniel Wade, taken on March 22, because his will was "overborne" and his capacity for self-determination "critically impaired" by the injection of demerol about two hours before he confessed and
about four hours before he signed the statement. This, it is asserted, offended due process by violating the constitutional requirement of fundamental fairness, recently reaffirmed in State v. Driver, 38 N.J. 255 (1962); State v. Fauntleroy, 36 N.J. 379 (1962); and State v. Smith, 32 N.J. 501 (1960), cert. denied 364 U.S. 936, 81 S. Ct. 383, 5 L. Ed. 2 d 367 (1961).
According to Nathaniel Wade's testimony of the events of March 22, Detective Lawless of the Paterson police arrived at the New York hospital that morning and carried appellant to a waiting police car. Detective Neeson and two other police officers were present and assisted Detective Lawless. Appellant complained to the latter that his leg was in pain and that his left arm was paralyzed, and he asked for medical attention. The police officers then drove appellant to a police station on Centre Street in New York City. There he was placed in a wheel chair and carried into the building. He was fingerprinted and photographed. Wade stated that he had chills and was in pain and again asked for medical attention. The officers informed him that they were going through extradition proceedings and that when they had finished he would be placed in a hospital in Paterson. Wade continued to complain during the hour and a half he remained at the Centre Street building. He did testify, however, that Detective Neeson assisted him as best he could. In fact, on cross-examination, appellant testified that the officers treated him very kindly and handled him very carefully because they were concerned about his leg, and that no one had abused him in any way.
Wade was informed that next they were going to court to complete the extradition proceedings. He expressed reluctance to sign any waiver and asked to call his lawyer. One of the officers got Mr. Morley, Wade's New Jersey attorney, on the telephone. Mr. Morley advised Wade to waive extradition.
Appellant, as at all times that day, was then assisted from the building and into a waiting car and driven to a criminal
court. Still in pain and still suffering from chills, Wade was wheeled into court. It was then about two o'clock and court was not in session. Wade had not had lunch and he asked two of the officers who were going to the cafeteria to bring him some food. He was informed that he would eat after the extradition proceedings were completed. Wade appeared before a magistrate and then was taken to the eleventh floor to the court of special sessions, where he signed the necessary papers.
Thereafter, appellant was driven to the Paterson police headquarters. Upon his arrival, Wade testified that he reminded the officers that they had promised to get him medical attention and they replied that they would see about it. Wade was then taken to the third floor, removed from a wheel chair and placed on a desk chair. Wade's wife and a friend, William Jones, were in the room and they talked together for a short while. Then, as the result of a police call, Doctor Schmidt arrived from a hospital. Wade informed him of pain in his leg and stomach, chills and paralysis of his left arm. According to Wade's testimony, Detective Lawless mentioned demerol, and Detective Neeson suggested that Wade be given "a big bang of it" because his leg was broken in thirteen places. The doctor injected a hypodermic needle into Wade's left arm.
Appellant said that this relieved the pain but that within 10 or 15 minutes it put him "in a fog." Wade's wife and Mr. Jones continued to talk to him, but he claims he could not understand what they were saying. After they left, Detectives Lawless and Neeson spoke to Wade, but he could not understand them either. Then he noticed that Mr. Morley was present. Morley asked Wade how he felt and the latter replied, "very bad." The only other thing he remembered about Morley's visit was that he filled his pipe with tobacco and departed.
Appellant also testified that after Morley left, Detectives Lawless and Neeson had Wade moved to a little side room. Appellant was gagging and ...