Kilkenny, Halpern and Lane. The opinion of the court was delivered by Kilkenny, P.J.A.D.
[114 NJSuper Page 472] On June 12, 1970 defendant was found guilty by a jury of murder in the second degree
(N.J.S.A. 2A:113-2). He was sentenced to the New Jersey Reformatory for an indeterminate term, but the sentencing judge imposed a maximum of 25 years. N.J.S.A. 30:4-148.
On this appeal defendant contends: (1) the trial court erred in its charge on legal insanity and the availability of this defense; (2) a remark made by the prosecutor in his opening was so prejudicial that it deprived defendant of his right to remain silent; (3) evidence of the use of drugs by defendant should not have been submitted to the jury on the question of defendant's guilt; (4) the court erred in denying defendant's motion for a judgment of acquittal, and (5) the trial court erred in its answers to the jury's questions during its deliberations.
There was evidence from which the jury could reasonably find the following facts.
On October 18, 1969, at approximately 11:30 P.M., the body of John Tomlinson was found lying face down outside a service station in Bordentown. The victim had been stabbed numerous times. A large hunting knife was found next to the body.
The overwhelming evidence presented by the State established that defendant was the one who had caused the death of John Tomlinson. One of the victim's shoes was found in an automobile used by defendant; the victim's blood was in the car and on defendant; the two were together earlier that evening and purchased knives, and defendant admitted to Patrolman Burke that, "This guy was murdered," and "It is a stabbing," and "I did it." Moreover, defendant made no effort to deny commission of the act. Rather, his entire defense was premised upon his mental incapacity when the homicide occurred.
There was testimony as to defendants family history and personal background. Defendant was just 24 years old at the time of the trial on June 10, 1970. He was the second oldest of five children. His father was a musician and teacher. Between the ages of one and eleven defendant and
his brothers had lived in 26 different places. His parents' marriage was extremely "incompatible." They were separated numerous times when he was young and were finally divorced in 1959. His mother had a psychiatric history and was institutionalized a number of times. Defendant was placed in an orphanage on occasion when she was confined. His mother often inflicted physical punishment upon him, striking him with her hand, a broom, or a frying pan. Gary's older brother, Kenneth, testified as to the family life, summing it up in these words, "* * * to make a long story short we just grew up in a reign of terror and insanity."
This older brother Kenneth, according to the father's testimony, had received a medical discharge from the Navy. After four months of service he had "an emotional breakdown," was transferred to the Naval Hospital in Philadelphia and was confined for four months in the psychiatric ward. He was found to be not adjustable to military life and discharged.
Defendant's father also acknowledged that he had sought psychiatric help for himself about 1948-1949 and had six visits with a Dr. Zigarelli in Paterson as the result of a court recommendation. However, defendant had not undergone any psychiatric help prior to the incident on October 18, 1969.
During the summer of 1969 defendant and his brother Kenneth were residing in their own apartment in Trenton. Gary was attending Trenton State College as a junior. His personality began to change noticeably. He became more extrovert in his manner and concerned himself with many philosophical pursuits. During the late summer he had experimented with narcotics. He told his brother Kenneth that he had taken "pot a couple of times * * * pot or marijuana." He also mentioned "LSD, that he took." Kenneth became frightened and called Skillman Neuropsychiatric Hospital, obtained the ...