Conford, Labrecque and Halpern. The opinion of the court was delivered by Labrecque, J.A.D.
Defendant Wiley Bell appeals from judgments of conviction entered upon two indictments, each charging assault and battery upon a police officer acting in the performance of his duty, N.J.S. 2 A:90-4, and a single indictment charging attempted escape, N.J.S. 2 A:104-6.
We are called upon to determine (1) whether the court committed prejudicial error in instructing the jury on the defense of insanity, and (2) whether it was error to refuse to give requested instructions as to the probable disposition of an accused on a returned verdict of not guilty by reason of insanity.
A brief summary of the facts, not substantially in dispute, is as follows: At about 3:50 P.M. on July 26, 1966 Detectives Rebar and Brill of the Newark Police Department were dispatched to an apartment house at 311 Morris Avenue, Newark, to check on a complaint. There they found defendant in a second-floor apartment with a woman and her children, the woman screaming that she wanted defendant out of her apartment. The detectives identified themselves and asked defendant to leave, whereupon he gathered his clothing and left without incident.
Approximately 20 minutes after the detectives had resumed their patrol duty they returned to the same area and observed three or four children yelling from a window of the same second-floor apartment. They left their patrol car and, as they were proceeding toward the apartment for the second time, met defendant coming down the stairs. They arrested him for creating a disturbance, handcuffed him and placed him in the back seat of the patrol car.
On the way to police headquarters Rebar, who was driving, saw the right rear door open and defendant attempt to leave the vehicle. At Rebar's warning, Grill, who was in the front passenger seat, reached over the seat and grabbed defendant as Rebar stopped the vehicle. When Grill then attempted to get into the back seat while Rebar was holding defendant, he was kicked in the face and chest. Defendant kicked, bit and scratched the detectives and continued to struggle during the rest of the trip to police headquarters.
On the following day a police surgeon's examination revealed Rebar had sustained abrasions on his left second finger, his left forearm and his left arm; contusions of his left hand, left elbow and left shoulder; and a scratch on his right cheek, while Grill had abrasions on his right leg, his left hand and his left forearm; a contusion of his right forehead and multiple contusions about his body, and human bite marks on his right arm and right elbow.
The defense was insanity. On the basis of an extended hypothetical question incorporating defendant's psychological
background, past medical history and a psychiatric examination administered by him about eight months after the charged offense, Dr. Kesselman, a specialist in neuropsychiatry, opined that defendant, on the date of the incident, was suffering from a "psuedosociopathic schizophrenic reaction," described as a defect of reason caused by disease of the mind, and that he was not able to understand the nature and quality of his behavior nor did he know that what he was doing was wrong.
Dr. David J. Flicker, a specialist in psychiatry and neurology, testified that on the basis of his psychiatric and brief neurologic examination of defendant on May 26, 1967, and a review of Dr. Kesselman's medical report prepared prior to that date, he could not at the time of his examination make a diagnosis of schizophrenia, although defendant's "record was obviously one of recidivistic, sociopathic personality." He opined that, at the time of the examination, defendant "knew the nature and quality of his acts, knew what he was doing. He knew the difference between right and wrong, that he knew what society considered to be right and wrong * * *." Although Dr. Flicker could not, on the basis of the factual data before him, pass on defendant's state of mind at the time of the offenses charged, when asked whether "a good recollection" by defendant of the alleged offenses seven months after they had occurred would aid in evaluating his state of mind at the time of the incident, he replied, "If he had a good recollection at that time in all probability he knew the nature and quality of his acts."
Defendant objected to the trial court's instructions to the jury on the defense of insanity and urges on appeal that the language used was misleading and prejudicial because of the negative nature of the presentation of the ...