Conford, Freund and Sullivan. The opinion of the court was delivered by Conford, S.j.a.d.
This is an appeal from the denial of a motion for judgment of acquittal and from a judgment of conviction on a charge of violation of N.J.S. 2A:170-8 entered in the Essex County Court by Judge Conklin, sitting without a jury. That judgment was rendered on an appeal to the County Court from a similar conviction by the Newark Municipal Court. Defendant was here charged with and convicted of being "under the influence of" a narcotic drug.
N.J.S. 2A:170-8 provides:
"Any person who uses or who is under the influence of any narcotic drug, as defined in article 1 of chapter 18 of Title 24 of the Revised Statutes (Food and Drugs), the uniform narcotic drug law, for a purpose other than the treatment of sickness or injury as prescribed or administered by a person duly authorized by law to treat sick and injured human beings, is a disorderly person.
In a prosecution under this chapter, it shall not be necessary for the State to prove that the accused did use or was under the influence of any specific narcotic drug or drugs, but it shall be sufficient for a conviction
under this chapter for the State to prove that the accused did use or was under the influence of some narcotic drug or drugs as defined in article 1 of chapter 18 of Title 24 of the Revised Statutes (Food and Drugs), by proving that the accused did manifest physical and physiological symptoms or reactions caused by the use of any narcotic drug."
Two Essex County Sheriff's detectives attached to the Narcotics Squad testified to the following facts. Defendant was arrested by them April 24, 1962 at 2 P.M. in Newark and brought to the Essex County Prosecutor's Office in Newark. There they noticed he "had marks on his arms and * * * appeared slightly sluggish." They called in a physician, Dr. Mulvaney, who examined defendant, the time of examination being fixed at some 45 minutes to one hour after the arrest. The doctor reported to the detectives that the defendant was under the influence of narcotics.
The testimony of the doctor bears both on defendant's attack on the constitutionality of the statute pursuant to which he was convicted and his claim that the evidence was insufficient to justify conviction, and we therefore discuss it in detail. On direct examination Dr. Mulvaney stated he was a specialist in internal medicine and that he had taken a medical history from the defendant and examined him physically, including "all the sensory faculties" and "a complete examination of the body of the individual and a neurological examination." As a result thereof he diagnosed defendant as "under the influence of narcotic drug." The doctor was cross-examined at length. He testified that a gross examination of the external surfaces of the defendant's body revealed positive physical findings. Two areas of needle marks on the arms were noted, one area no older than 72 hours. Defendant's face was pale, eyes watery, pupils dilated with sluggish reaction to light, and the mucous membrane of the nose was inflamed and watery. Dr. Mulvaney further noted a fine peripheral tremor, a sleepy mood and yawning. Defendant's balance was fair as compared with sure. Palpation revealed epigastric tenderness in the abdomen. The doctor made no
test of any body fluids of the defendant, laboratory tests not being within the scope of his examination.
The doctor explained that while ingestion of narcotics normally results in constriction rather than dilation of the pupils, the latter may be the result in the case of a person chronically addicted to narcotics. In response to a question dealing with the narcotic abstinence syndrome (referred to by counsel as "recovery symptoms," by the court as "withdrawal" and by the doctor as "recovery signs"), the doctor said that yawning and a sleepy mood are signs thereof.
The following testimony of Dr. Mulvaney on cross-examination is particularly relevant to the ...