For affirmance -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Schettino and Haneman. For reversal -- None.
Defendant was indicted for the murder of his wife. The homicide occurred on September 18, 1963. On January 22, 1964 the trial court conducted a hearing as to defendant's capacity to stand trial and accepted the unanimous view of psychiatrists who testified for the defense and the State that defendant was unable to defend. The trial court refused, however, to try the question whether defendant was legally insane at the time of the homicide. The issue before us is whether the trial court erred in so refusing. We are satisfied it did not.
N.J.S. 2A:163-2 authorizes a trial of the issue of insanity at the time of the homicide in a proceeding other than the trial of the criminal charge. It provides:
"* * * It shall be competent for the judge if sitting without a jury, or the jury, if one is impanelled, to determine not only the sanity of the accused at the time of the hearing, but as well the sanity of the accused at the time the offense charged against him is alleged to have been committed."
In Aponte v. State, 30 N.J. 441, 455 (1959), we said of the statute:
" N.J.S. 2A:163-2 and 3 were not intended to permit an accused to by-pass the criminal trial if he is able to defend, or to entitle him to a trial run of his defense of insanity by the expedient of asserting incapacity to defend. Rather the purpose was to permit a termination of the criminal proceeding if the accused is unfit for trial. Nor does the statute require a trial of the defense of insanity at the time of the inquiry into ability to stand trial. See State v. Stern, 40 N.J. Super. 291 (App. Div. 1956). For that matter, the court need not order a trial of the defense at all. And if the accused is found to be fit for trial, the issue of insanity at the time of the crime should not be adjudged, and if both issues are tried together with a jury, the jury should be so instructed. This is especially true since, as pointed out in Gibson, supra (15 N.J., at pages 388-389), the proceeding under N.J.S. 2A:163-2 is deemed to be civil and determinable by the vote of ten jurors.
Hence, a court should not deal with the defense of insanity until after the incapacity of the accused to stand trial has been established, unless from the facts on hand it is virtually certain that incapacity to defend will be found. Rather, it should first try the issue of
capacity for trial, and although both by our case law and the statute it may sit with a jury, we think it ordinarily more appropriate that the issue be tried by the court alone. If incapacity is found, then, in its discretion, the court may, alone or with a jury, inquire into the defense of insanity." (Emphasis added)
Counsel for defendant reads this excerpt to mean that if incapacity to stand trial is found, the trial court is thereupon obliged to try the substantive issue of insanity at the time of the killing. That problem was not before us in Aponte, but in any event the thrust of Aponte is the other way. We there recognized that the two issues were not so related that a finding of incapacity to stand trial would necessarily require or even justify a trial of the substantive issue. Hence we emphasized the discretion in the trial court, as appears in the sentences italicized in the quotation from it.
It must be kept in mind, as pointed out in Aponte, that if the issue of insanity at the time of the homicide is tried under the statute, a finding that defendant was sane will not bind him when the indictment is later tried. The Legislature did not intend that hearings which may thus be academic shall be ordered whenever a defendant is at the moment unable to stand trial. Rather the Legislature prescribed a method to permit the State's file to be closed if the facts indicate it would be idle or unfair to keep it open.
In Aponte we had no occasion to spell out the circumstances in which incapacity to defend would warrant a trial of the substantive issue and hence we did not go beyond noting the legislative purpose and stressing the discretion of the trial court. We said capacity to defend should be tried first unless the known facts made it evident that there was no capacity to defend. It of course does not follow that if the defendant cannot defend, the substantive issue must be tried. Rather if inability to defend is plainly apparent or is adjudged, it is then ...