State v. Lucas

If itsеlf. should any party be dissatisfied with the result reached Board this upon remand, the matter may be before us brought for further consideration by motion filed in this cause within 80 after the days Board’s action. In that event the matter will set be down for further argu- ment upon briefs and now appendices before us and such record supplemental and briefs may needed. To that end, we retain jurisdiction.

For remcmdment —Chief Justice Weintraub, and Justices Burling, Jacobs, Erancis, Proctor, Hall and Schet- TINO —7.

Opposed—Hone. JERSEY, THE STATE OF PLAINTIFF-RESPONDENT, NEW LUCAS, v. ELBER COOPER DEFENDANT-APPELLANT. Argued April 6, 195 9 Decided June 1959.

4=0 for the defendant- L. Raines the cause

Mr. Martin argued Dimon, and Messrs. Rnnting, Raines & appellant (Messrs. Abbotis, John Rartpence, attorneys). & Mr. A. Abbotts Assistant Prosecutor of Mercer J. First Barry, Mr. John for the plaintiff-respondent (Mr. cause County, argued Ruthowsld, Prosecutor). County Mercer B. Stanley The of court was delivered opinion by J. taken an this Defendant has court appeal Bubling, from of entered to a conviction judgment pursuant jury verdict of murder in the first with recommendation degree Const., of life VI, Art. imprisonment. V, 1(c); par. § R.R. 1:2-1 (c).

Evidence was presented State that early hours 14, of the of March some time rainy morning about 4:00 A. a fire out in broke St. Cathedral Mary’s m., located on North Warren and Rectory Bank Streets fire, City hours, Trenton. The which lasted for destroyed the Cathedral and was also rectory which adjoining used as an office death Richard The building. Monsignor T. Crean, Donnellan, Brennan and P. three Mary Mary occupants of ensued as a the fire. rectory, result of When the firemen arrived, after shortly 4:30 M., A. only of the portion first floor was afire rectory was a room utilized as an located office on the extreme left of the side) a funeral (southerly adjacent to home. building The floors of the were upper ablaze, but the fire had rectory not yet to the spread Cathedral abatement building. Uрon flames, firemen entered made an inspection The electrical building. in- wiring, heating equipment, cinerator, was checked the Eire “everything” Department, but was found the blaze nothing indicating origin and the cause of the fire was listed as “unknown.” officially However, the point and path were ascertained to origin be in the mentioned office. previously Eire Chief Deputy testified for the State as Dovgala to his basis for opining that the fire started in the center rear the portion of rectory office to a proceeded stairway and in the rear office, of the upper the floors via the reaching stairway.

The Trenton Police also Department conducted an investi- the into of the fire. The gation origin the debris on floor rectory of the office was sifted. There was a huge pile of rear debris the center portion of the office at about the believed of the point of fire. origin Eight of fragments those container, by identified

a which could not be glass at the found room, the the were familiar with contents of debris. bottom or floor level of the of pile of the were the As a result their investigation police the fire than accidental. cause the was other opinion by were described layout The and contents of the office day during Edith who the room Egan, occupied by the was a and telephone operator employed receptionist room were as The contents of the Diocese Trenton. chair which she follows: There a steel desk and was large room; front against utilized located towards the from Warren Street) wall on the left the building (facing e., were five chairs home, i. the wall next the funeral there school; a new which were chairs for sample high adjacent wall on the closest to Cathedral right, hall, On the mantel the entrance there was fireplace. of the were numerous for each counties telephone directories, in New and some for New York and Jersey Pennsylvania. were wall, Street, In the to Warren there adjacent front the cur- windows with full curtains. After business hours halfway. tains would be pulled fire, on the nine months after morning Some 17, 1956, at 2:15 de- approximately December A. it., Lucas walking fendant was observed officer police Street, Warren near Street in Trenton. His South Eront officer, who stopped demeanor aroused suspicion him of his pockets. and had contents The empty Lucas revealed that seven search Lucas carrying packs matches, numerous religious pamphlets newspaper of a of the late picture Monsignor Upon Crean. clipping satisfactorily the failure of defendant explain why articles, he these was taken to the Detective was carrying Bureau. at 10:30 A. it. on the of December

Commencing morning Lucas was questioned police approximately minutes, an hour and time he admitted during here in church, question. fire another After setting an of an for he interruption lunch, hour questioned again for an hour a half. this Lucas interrogation During admitted fire three setting other in the Trenton churches area, but not the Cathedral. The on again interrogation p. 17 terminated December at 4:00 m. about

On the Lucas morning day following agreed visit certain of the had churches he admitted burning. Shortly Lucas, after 11:40 A. m. accompanied by police officers, several proceeded to churches in Trenton where Lucas re-enacted the manner in which he set the The fires. then had group lunch and returned to the Detective Bureau p. before 2:00 m. shortly then he Lucas stated would like to rest and after he rested he talk the Cathedral about might fire. He rested for about an hour. Detective Sergeant of the Trenton Police Bradley testified Department p. State that at 3:00 approximately h. Lucas was again and at that time interrogated fire, admitted that he set the “I am I adding, sorry, didn’t know lived anyone there.” Lucas admitted that he started the fire room which referred he to as a library; that he some removed books from a shelf the room located to the of the door right as he entered, placed on them the floor after and, saturating them with he set fire them. gasoline, When shown the fragments of found glass at scene he stated that they looked like from the fragments container in he which glass had transported scene, which he left at the gasoline he was not although certain. Lucas admitted the fire m. starting the room a.

next to Murphy’s Funeral had Home described aas library because the presence on the books shelf. He entered the room the door next to the funeral home which he said was not locked. Lucas described contents In room. addition to the shelf with books it to the door, he said it right table, had a desk, a chair and that there were some chairs piled up against the wall that separates funeral home from the rectory building. the he had purchased gasoline stated that

Lucas before immediately Horth Warren station on Street gasoline further He the station was 34 hours a (The day.) fire. open the fire. that it was on the night testified raining veracity test the in an effort to Bloking, Lieutenant admissions, concerning him false information gave Lucas’ the fire: the fire

He him had information that told the police m.,” 13 and 1 a. but started “around between midnight, he had started said, “Ho,” “that that Lucas was wrong; Lieutenant then Bloking it between 4 a. m. and 4:30.” Lucas told him that there was a snowstorm but night; He was in- nasty. insisted that it had been raining fire in the the the started formed believed police itself; “Ho,” the said area of altar of the Cathedral Lucas home. that it had in the next to the funeral library started had evidence that an told him that the police Bloking used to set had part been force explosive igniting fire; the but Lucas adhered to his original story, again he over some of the books and poured had gasoline saying the and then set fire to them. library in papers p. m., 3:45 at which The terminated at interrogation taken the the Police time Lucas was office of Chief of the explained DiLouie. Chief DiLouie extreme James if of his admissions to Lucas and he under- inquired gravity stood the what he admitted. When Lucas replied import he was then asked version of his affirmatively repeat Chief DiLouie. the the crime for The interrogations p. terminated at 4:30 day m. 19, 1956,

On Lucas was day, December ensuing again time by this Prosecutor Mario from questioned, Yolpe, p. M., 11 a. m. with for luncheon. The respite ques- tions and answers were transcribed stenographically by certified shorthand reporter. period question- During were taken. The one two statements ing separate relating fire to the Cathedral was taken the afternoon in evidence at the trial. Present at the time admitted statements were taken, addition to the prosecutor officers, police was Dr. Spradley, psychiatrist. State’s In it Lucas reiterated at his oral admissions of length On previous day. which night question, Lucas described as he “rainy, nasty,” stayed at the Hotel Penn in Trenton. He left the hotel at about a. m. to a go station on gasoline Warren Street above (north of) church. He purchased in a gasoline bottle he had in a had wrapped paper bag. (He picked up bottle on the street along Upon shown the way.) being frag- ments of Lucas stated that glass, bottle had used was like that.” After “something purchasing gasoline he proceeded south Warren Street toward the church. He entered the door of the southerly rectory next building, Euneral Home Murphy’s which was unlocked, and entered the ‘’library” (the rectory He had never office). been in the rectory before, of the church building he although had attended in services As Cathedral. he walked in “there * * * was a bunch of books on righthand side paper books, poured them over and set fire gasoline to them [he] with matches.” Lucas described the contents the room, of the chairs located on the including southernmost wall. After the fire started he walked out and flaming, went Perry toward Street where station, he at the stopped bus got a drink water, and then toward Clinton proceeded Street he where was to his meet at employer the intersection of Clinton and Streets Perry (Lucas was employed a helper a and pie truck driver commenced generally work at 5 a. At later in the i.) statement said point Lucas he in minutes, remained the room “a couple about five minutes” after lit he the fire and saw a “lot flames.” when asked whether he

During questioning, attended Crean’s funeral had known Monsignor (hе Monsignor time short talked with him occasionally about base- he down ball), broke and cried.

Lucas had be converted attempted to to Catholicism. He said that he attended catechism classes at St. Mary’s had received to that occasion, prior on one

Cathedral that he Florence, He stated Jersey. New instructions he whose name of the priests, with one had an argument communion know, Cathedral concerning did had learned Lucas that he The had told priest catechism. it all wrong. “most was incorrectly; the catechism an studied, I I started argu- it all wrong. He said we got Asked, “But him, said I was ment with right.” he responded, fire to the church?” the reason set why you he contradicted in the confession “Yes.” At later point reason for burning that he had no himself by stating then interviewed Dr. Spradley Lucas was church. be sane The found him to doctor an hour. approximately a visitor at At his own received request at that time. p. Gai'd, Presbyterian the First pastor 6:05 Dr. m., Hugh Trenton, Lucas had become associated with which Church of St. Cathedral. Mary’s in March 1956 after burning p. M., 9:30 Lucas read aloud Later about evening, typed by statement which had since been stenographer. thereon. made some corrections He 20, December day, On the of the following morning the manner police officers re-enacted accompanied by Lucas coincided he started the fire. The re-enactment in which to the his admissions previous police. with confession and down Warren Street southernmost Lucas proceeded turned left. door, walked in and to his immediately rectory it fire where was rectory He entered office believed said, is the room where I set fire.” had startеd and “this he demonstrate how set the fire. He then proceeded 20, incar- on December 1956 and Lucas was arraigned 2, 1957 in the Mercer On County January cerated Jail. Dr. examined Dr. at he was Spradley. Spradley again felt that if remained he would prison develop that time therefore recommended he be com- an acute psychosis, for and possible mitted to the observation Hospital 3, 1957, Lucas was January The next trans- day, treatment. to the Trenton State where he remained Hospital ferred

51 until 3, March On 1958. that date he was released free overt any psychosis. signs 26,

On November he was indicted for murder felony under N. J. S. (arson) 2A:113-1. He pleaded guilty. At the trial the defenses were denial of the commission of the crime and at alleged insanity the time of its commission. The defendant did not take the stand.

Defense for a motions directed verdict of acquittal conclusion of the State’s ease and at the close of the entire ease, and a motion trial, new were denied.

I.

Corroboration the Confession. The defendant contends trial court committed error refusal to direct a verdict of at the acquittal conclusion of the State’s case and the entire because case of insufficient corroboration of the confession. is a widely accepted doctrine reflected either

American decisional or law that an statutory uncorroborated extra-judicial confession cannot provide evidential basis to sustain a Annotation, conviction for crime. 45 A. L. R. 2d 1316 (1956); Wigmore, Evidence (3d 1940), ed. 2070, Note, 393; p. the Corpus Delicti Aliunde § “Proof of Confession,’’ 103 U. Pa. L. Rev. 638 Defendant’s (1955).

The rule in New Jersey that a confession without morе cannot sustain a conviction can be traced back through decisional law to as Aaron, early 1818. State v. 4 N. L. J. 269, [Reprint pages Ct. (Sup. The 1818). 282] doctrine, its despite widespread and rooted apparently flrmly acceptance in American is not Jurisprudence, without its substantial critics. Judge Learned Hand in Daeche v. United States, 250 F. 566, 571 (2 Cir. 1918), remarked: “that the rule [requiring corroboration has in fact confessions] any substantial necessity in justice, we are much disposed * * * to doubt. it seems to us that such evils as it

52 the judge treated flexibly be much more corrects could * * *” recently has Professor McCormick trial. at observed: requiring corroboration rules is submitted that hard-and-fast “It they guilty punishment likely as are of the obstruct the- are as Evidence, p. 230, safeguard at McCormick the innocent.” (1954).

n. 5 corroboration of the rule requiring upon Commenting as “an artificial has to it confession, Massachusetts alluded adhere to Common rule,” does not it. quantitative 470 468, E. 2d Kimball, 290, 73 N. v. 321 Mass. wealth Wisconsin, also, uncorroborated In an 1947). Jud. Ct. (Sup. Potman conviction for crime. may sustain confession Ct. State, 1951). 2d 885 234, 884, (Sup. 259 47 N. W. Wis. v. entrenched, is firmly corroboration While the rule requiring authorities concerning is a conflict among there which the confession independent proof quantum con may before the confession must introduce State must is that the State One view as evidential. sidered Annotation, delicti. corpus proof independent proffer Note, 103 U. 1316, supra, 1327. 45 A. L. R. 2d supra, Bev., 63, note 647. p. L. at Pa. proofs the extrinsic corroborative view is that The other delicti but must be of such the corpus need not touch upon authenticity. an aura of as confession a nature give Note, Annotation, 1329; 103 2d., p. supra, 45 A. R.L. at Rev., L. 665. р. Pa. U. of sufficient corroboration if the the latter view it is Under of such facts and cir proof introduces independent tend belief generate would cumstances need establish the true; corpus the evidence confession confession. See v. United Opper independent delicti 84, L. 158, 99 101 States, (1954); Ct. Ed. S. S. U. States, 1941), 124 F. 2d 58 Cir. (6 Anderson v. United 599, 350, 63 Ct. 318 U. S. S. grounds, on other reversed People, Martinez v. 129 Colo. 87 L. Ed. (1943); 53' Cardwell, 257 2d 654 90 (Colo. 1954); P. Ct. v. Sup. State 1916P, 606, Kan. P. 597, 135 L. A. 745 Ct. 1913). R. (Sup. Before the of what New resolving ‍‌‌​​​​‌‌‌‌​​​‌​‌‌‌​‌​​​‌​​‌‌‌‌‌‌​​‌​‌‌‌‌‌​‌‌‌‌‌‌‍question Jersey rule corroboration it define the requires will helpful term delicti. There are three basic in the corpus elements proof any crime.

First, the occurrence of loss death in injury murder, or (a a burnt house in dwelling arson, common law etc.); secondly, criminal causation of the loss to acci- or injury opposed e.j dent some one (i. committed crime),-and lastly, e., defendant’s or with the identity connection crime (i. that the defendant in fact was the perpetrator of the crime). 7 Wharton, Wigmore, 2072; Evidence 1940), 2 (3d ed. § Criminal Evidence (12th 1955), pp. ed. 130-131.

Dean has that in its Wigmore suggested correct meaning the term delicti reference corpus has to the first of only these elements, namely, the fact of the or specific loss injury sustained. 7 Wigmore, p. 401. view supra, (Under this State the instant case need only prove that the rectory was burned that the death of someone ensued as the result He thereof.) on to state: goes priori' “This, too, meaning; ‘a is the more natural for the con- emphasized trast first and between the the other elements is what by rule; convicting, e. i. it warns us to be cautious since may subsequently appear any it no one has loss sustained at all; example, disappeared, perhaps may a man has but later reappear dead, yet To find alive. that he is in truth criminal lacking, violence —i. e. find the second element is not the dis- covery against designed protect rule is to warn and us.” (7 Wigmore, p. 401) Nonetheless, admits Wigmore view is prevailing the term delicti corpus also “the second comprehends e., element, Ibid, i. somebody’s criminality.” 502. p. The decisions in New are Jersey somewhat ambiguous their treatment of immediate problem. Although term delicti has defined corpus been both include specific injury loss or a criminal agency causing 54 Ct. Morris,

loss N. J. 621 v. injury, (Sup. State L. & L. 526 A. below, (E. affirmed N. J. 1923), opinion 1923); yet v. 11 N. J. Greely, (1953), of these cases not uniform with to whether both respect are of the elements must be evidence proved independent confession. in subject

A on the New cases reading Jersey dis aliunde the confession dependent corroborative proof confession, cor closes while it been held that a has delicti will roborated independent proof corpus by crime, lacking, a conviction for if such be support yet, proof it if other by will suffice the confession corroborated be it, the criminal evidence to so that tending strengthen the crime) well as defendant’s with (as connection agency Guild, v. may by be confession itself. State proven Banusik, 10 84 N. J. 163 Ct. State v. 1828); (Sup. L. Kwiatkowski, J. & 83 1906); N. L. 640 A. v. State (E. James, 96 J. N. J. L. 650 & A. v. N. 1912); State L. (E. Geltzeiler, & N. L. 132 A. v. 101 J. 415 (E. 1921); State Cole, & 606 & A. 136 N. J. L. A. 1925); State (E. (E. v. Klausner, 4 427 Div. 1948) ; v. N. J. Super. (App. State ; 10 J. 532 v. 1949) Cooper, (1952); State v. N. 42 dis 1956), N. J. 138 Campisi, Super. (App. appeal Div. J. missed in reversed N. part (1957). part, Guild, subject, In one of earliest on the Slate v. cases supra, Chief Justice followed what obviously Wigmore Ewing in dis contended the correct view of delicti corpus corroborated the rule that the confession must be cussing The Chief then set forth Justice a by independent proof. a number of authorities uncorroborated totally holding confession, if it free and was sufficient evidence voluntary, be found it decide unnecessary warrant a but to conviction, cir of whether or question proof corroborating found since he such to exist required, proof cumstances was for the in that case. He declared court: place, however, “In a un- first it becomes material correct by qualifi- derstanding- subject, to settle is meant of the what cation, ‘corroborating,’ annexed to the term ‘circumstances.’ The phrase clearly which, independent does not mean facts of the con- fession, conviction, will warrant a for then the verdict would stand confession, upon independent not on the but those To circumstances. strengthen, corroborate is to security, to confirm additional strength. testimony add witness, The corroborated, of a is said to be correspond representation when it is shown to with the of some witness, comport other or to with some facts otherwise known or Corroborating then, established. circumstances used in reference to confession, strengthen it, are such as .serve to to render it more probable, may impress such in jury short as serve with a (10 L., page belief of its 187). truth.” N. J. at

In Banusik, 1906 in State v. Chief supra, Justice Gum- mere, in an addressing argument that the law will not per- mit a conviction to stand absent proof of criminal agency- death, declared: causing this, opinion, statement, “But in our is not an accurate either of proof required the rule corpus of law as to the with relation to the delicti, upon question or the condition of the evidence whether proof body murder was crime, committed. Full of the of the corpus delicti, independently confession, required. is not

may proved by itself, the confession corroborated other evi- (84 L., pages 646-647.) dence.” N. J. Kwiatkowski, But in State v. supra, Walker, Chancellor for the speaking Court of Errors and in a case Appeals, where there was evidence death ample of criminal through declared: agency, only upon against “The limitation the use as evidence him of a prisoner’s murder, voluntarily made, confession of is the want of proof corpus death, through of agency, the delicti. If criminal be proved, having a death, may and man confesses to caused that he (83 L., be convicted of murder on his confession.” N. J. at

page 660.) James, In State v. the Court supra, of Errors and Appeals that either rule would recognized suffice in holding: “* * * situation, namely, proof person in this of the death of a by party foul means and the of confession a that he murdered the proved, entirely man whose death is so the law of this state is settled; Kwiatkowski, 650, v. L. this court State 83 N. J. upon against only him limitation the use as evidence held that the voluntarily prisoner’s murder, made, is the want of confession agency, proof corpus through be of proved, delicti. If criminal death may having death, man caused that confesses Furthermore, v. convicted Banusik, State of murder his confession. 640, prosecution for that in a 84 N. J. L. this court held proved by by corpus may be the confession made murder the delicti by The law defendant is corroborated other evidence. the which independent require proof body of the of the crime does full * * * such confession. corpus proved above, independently of seen dеlicti was As the prisoner, but, not, confession, if contended for the it were thoroughly by other evi-

still the confession so corroborated body together proof full of the crime.” dence both L., afforded (96 pages 147, 148.) N. J. at Geltzeiler, court declared:

In v. supra,, State persons history many to have “In law so are known of the they committed, in- of crimes never even confessed the commission corpus murder, proof cluding requiring of the delicti the rule voluntary However, is a confession when there has been evolved. proof case, in a full the offense body defendant criminal confession, required but in addition to the of the crime is not corroborating may proof some sufficient arise out of evidence thereof L., page 416.) (101 J. at or in the itself.” N. fact facts confession N. at Cooper, supra, page v. J. See also State 145. page v. 42 N. J. supra, Super, Campisi, view, Guild In first enunciated our test e., case, i. must introduce independent proof the State facts and bolster circumstances strengthen trustworthiness, in its and tend belief generate confession ample of loss or affords injury, pro plus independent proof rule best designed tection for accused of the criminal serve the ends of in the administration justice law. from doctrine evolved of corroboration

Historically and the United States both in England notorious instances of missing per- confessed to the murder where individuals of their on the sole strength sons were convicted and hung returned decedent confessions, and afterwards alleged very Rev., much alive. Note, See supra, U. Pa. L. at pages 638, 639, 646, and authorities therein cited.

The evil at which the corroboration rule was aimed was not that the death which was confessed to was in fact acci- dental rather than felonious, but rather that there was, fact, no death at This all. Dean objection is, as Wigmore noted, overcome by the requirement the State prove independently confession only fact of loss or injury.

It might argued also to ought prove criminal before a agency confession be considered as evi- dential, in order to assure that confession was not imaginary product of mentally diseased or deficient mind. But if criminal must be agency aliunde the proven confes- sion, not the why defendant’s connection with the crime? There seems to be little difference in kind between con- victing innocent where no crime has been committed and the innocent where convicting crime has been committed, but not by Yet, the accused. no jurisdiction such imposes a requirement, for that would in effect inverse the rule render the confession merely corroborative of a crime in- dependently proven. Indeed, it is more ofttimes likely persons false giving confessions because of mental disease or defect will confess to crimes where there is abundant proof of the two elements of the delicti corpus but where there is no proof to the perpetrator. The danger so much that such will persons confess to non-criminal occurrences but rather to crimes committed by some one than other themselves. Under such circumstances the con- fessor is probably afforded greater protection require- ment that the State must introduce such cor- independent roborative proof of facts and circumstances tending gen- eratе a belief in the trustworthiness of the confession than he is the rule requiring independent proof of the corpus delicti.

Confessions, like other admissions against interest, stand in the high probative hierarchy proof. is for. designed the law safeguards reason that various imposes

this for is true. But safeguards to assure that the confession the whereby turned obstacles the should not be into accused should can Uo burden just punishment. greater escape guilty the than corroborative independent of required the defendant con- that when to establish proof tending truth, he of plus independent proof fessed the telling was loss or the injury. aliunde

In view, corroborating proofs our the State’s the the for as to jury the confession presented question the trustworthiness of confession. 4:00 the fire at approximately stated he set

Lucas time cavil beyond m. That fire about that started A. in the night from the the record. Lucas described proofs all on March 14. had in fact rained “rainy, night nasty” —it e., i. in the “library,” His set fire description having the evidence office, was rectory by relating corroborated Lucas previously the fire detailed. point origin the office, and contents described the accurately layout mantel which caused on the “paper books” including his own by think the room a library, him to was although Egan, had there before. Edith admission he never been this confirmed day, the room occupied during who that she had seen Lucas she believed testifying although The chairs never been in the office. Cathedral, in the had described, walls, one which Lucas lined up against months to the fire. prior had been in officefor several only located the point mass of rubble at Under conсentrated started, the fire believed to have the office where While level, were the of glass. the floor eight fragments had it been would have been suc- stronger the State’s proof nonetheless identify fragments, attempts cessful could unaccounted fragments glass these otherwise the trier of an inference fact have formed the basis for which the remains bottle Lucas were they and which he threw carried gasoline claimed have that charred proved telephone fire. The State further into the found floor, books were on the office mute confirmation again of Lucas’ that he story over some poured gasoline paper books were on the mantel in the office. Also of Lucas’ re-enactment of the crime spontaneity corroborates his confession.

Defendant that the argues circumstances following negate the truth the confession:

That Lucas’ employer, Kleinerman, Maxwell testified that he picked Lucas at between 4:48 and up 5:00 A. M. on the March 14. it had morning rained all and Though night was still Kleinerman testified raining, that Lucas’ clothes were when he him dry picked Kleinerman further testi- up. fied he is that to the smell of allergic gasoline, though he and Lucas rode in the truck for the remainder together of the he could detect smell of day, no about Lucas. gasoline It should noted be that there is in the record nothing to indicate that Lucas the spilled any of gasoline his clothing. be noted may that Kleinerman further testified that in jest he asked Lucas: done, it, says, Cathedral,

“if lie had if he had set fire to the and he ‘No, they pin anywhere that can’t on me. I wasn’t near there.’ say anything Q. Did he else about it? * * * Oh, say, anybody A. ‘I he did didn’t know lived therе.’ * * * precise Q. And what were his words? ” anyone A. ‘I know didn’t lived there.’ He that also stated Lucas had a habit although of crossing himself they Cathedral, when drove the past practice, that as well Catholicism, as his determination to convert to ceased after 1956. March

That it was established that the doors Lucas claimed have entered to the were rectory locked at usually m.; :30 3?. cook, that the home at about returning p. at., used a the key doors, to enter those premises by 11:10 firemen, and that the when arrived at they rectory the had to use tool” axe-like “Kelly to force (an open instrument) the doors. Chief testified that it was Dovgala doubtful very the from heat the flames would have caused the doors she However, cook did not know whether

to the expand. evening, the last to enter the premises was person the doors further she testified that lock people attempting in so some experienced difficulty doing. that the Pire was

That Department conclusion Police the fire “unknown” that the State cause of tests ray conducted ultra-violet Laboratory Crime a petroleum detect the rectory presence office designed Dovgala But Chief base, results of which were negative. in the destroyed testified that evidence arson is usually that the their own worst enemies fire itself and firemen are connection, fire the evi- in this since in extinguishing washed A million of water may away. gallons dence case. were used the blaze in instant extinguish the time That station at attendant at gasoline Lucas to have testified purchased gasoline when claimed not sold to any person defense had gasoline on foot fire. On cross-examination night during had he admitted that while he sold probably gasoline he could not recall a occasions, on foot on persons many on he sold to one any single specific night gasoline it on He further admitted that is both to contrary foot. local to sell employer’s policy gasoline ordinance his if bottle, in and that he would lose his he job probably sell did so it.

That the their did not attempt police during investigation his down confirm Lucas’ account of walk Street Perry to a drink and his at the bus terminal for of water. Janet stop the terminal, ticket at the testified that Cassidy, night agent knew Lucas, whom she did not enter the terminal on sight, fire, the were on the of the and that doors locked night 3:30 5:00 m. in for the terminal order to between a. she an her station had unobstructed view cleaned. Prom Mrs. the On cross-examination Cassidy of drinking fountain. while she was occasionally admitted that she on napped remained on insisted that she awake the the but she job, Meeks, be noted Lester the fire. should of night the policeman, terminal testified the on rebuttal that Mrs. did take Cassidy and that on naps occasion it was difficult to wake her the up. After Meeks left for night, at approximately 4:00 he would lock two of the up M., A. doors to terminal, the the left but back door was open. Pursuant to the must the company policy janitor other lock door after Meeks’ However, departure. Meeks did not know whether 14. procedure this was followed on March

That Father Basco called by the defense testified that he had never given religious Lucas, instruction to although had been the the pastor Catholic in only Florence parish from trial, date with the exception one year.

That although nonе of police inquired, the priests at the ‍‌‌​​​​‌‌‌‌​​​‌​‌‌‌​‌​​​‌​​‌‌‌‌‌‌​​‌​‌‌‌‌‌​‌‌‌‌‌‌‍Cathedral remembered an with altercation Lucas. having

That it was further established that Lucas was not regis- tered, he claimed confession, his the Hotel Penn of the fire. night

In the core summary, State’s case on corroboration is that facts recited Lucas’ confession could only have been known the one who set the fire. Fowhere in the record there evidence to explain, consistent tending with the innocence, hypothesis how Lucas acquired information which he recited incriminating police. best, At proof crucial facts in the tending negate circumstantial, confession were to inconclusive in- leading ferences. The proofs tending negate facts peripheral recited in the confession, such as where Lucas resided on fire, whether he had had night previous religious whether training Catholicism, Lucas entered the bus terminal for a drink water, true, even if accepted as were in their sufficient totality as matter of law to warrant the conclusion that the confession was untrustworthy. due the consideration to raised

Giving points defendant by to evince a the truth of negation confession, to the still there existed at the conclusion of the State’s case the entire trial a for the factual situation determination the jury to its as trustworthiness.

62 of lack motion to direct on acquittal grounds

On an determine whether the court must trial corroboration evidence, from confession there any apart legal draw circumstances, from the jury facts and might is trustworthy. See State an inference confession Kollarik, v. 22 10, 24 N. J. 16 (1957); v. State Dunphy, 218, 19 N. 558, J. v. J. Rogers, N. (1956); indicated, test has been clearly As we have (1955). direct met and trial was correct to court refusing of failure of corrobora judgment acquittal on grounds case and at the tion both at the conclusion State’s of the entire ease. conclusion de- corroboration, court On the question charged to number 29 as follows: fendant’s request charge corpus delicti, confession, “The to must order corroborate proved beyond confession, be evidence than the a reasonable other doubt.” further on the of corroboration subject No to request charge was made. placed

It should noted charge greater the law and was in that burden the State than requires sense favorable to the defendant. The corroborative proofs need the confession and establish the trustworthiness of only not the delicti. corpus subject

Defendant on the that, no argues although charge term the trial court should have defined the requested, corpus delicti. failure

We do not find that court’s to specifically with to find duty their corrobora charge jury respect tion within the standards outlined in this constituted opinion which, error, R. 1:5-1 defined plain pursuant (a) R. 28 N. J. means Corby, (1958), State v. “legal of the defendant affecting rights substantial impropriety notice sufficiently justify grievous reviewing itself court to convince the court that of the error an about result. possessed capacity bring unjust clear

63 Haines, 18 N. 550, Picciotti, v. J. 565 v. (1955); State 12 N. J. 211 The entire thrust the (1953).” defense, aside from was establish that insanity, to the facts recited in the were confession The court untrue. defendant’s charged 18 as request number follows: Jury spoke “It is for the to decide whether the Defendant the truth confessed, confess,

when he if did and whether witnesses who truthfully.” testified that he made such a confession testified And in the main body of the the court declared charge weight credibility to be given the confession were for the to determine jury after of all consideration evidence in the case. The in confession, jury, weighing truth, its must have assaying considered state of the independent corroborative In of all proofs. of the light we that the foregoing are convinced failure to specifically the subject on charge corroboration of the confession possessed a clear about capacity unjust an result. bring

II. Insanity. The oe Defense Psychiatric testimony proffered two separate points First, in the trial. presence without the of the in order jury, for the trial court to determine whether the confession was evidence, admissible secondly, of the presence on the jury issue at the time insanity of commission of the crime and at the time the defendant confessed.

Without taken psychiatric testimony detailing without of the -we are presence satisfied from a jury, the record study of that the trial court was correct in ruling the confession was admissible. On the issue the time insanity at of commission of R. offense, Bennett, Dr. Robert psychiatrist and Medical Director Trenton State Hospital, testified behalf He defense. first examined Lucas three days after his admission to hospital, and thereafter examined him Dr. Bennett On the first examination

between times. was “not Lucas, bed, moving, found that who was lying attention his surround- too much apparently not paying moments, to, few he would reply. When after a ings. spoken brief, would very usually His the most reply, part, was, where he he knew a he knew just monosyllable, It was “like teeth” pulling date and year.” approximate Emotionally “very information from him. get e., flat,” reaction. Lucas i. he had little or emotional no occasion, told that he had hallucination on one Bennett Dr. he heard God’s voice speak two three in that prior, years reaction, was “schizophrenia to him. Dr. Bennett’s diagnosis hospital treatment in the consisted simple Lucas’ type.” and a drug, series of electric shock treatments tranquillizing .a 3, 1958 he from thorazine. On March was discharged with no hospital signs psychosis. overt asked Lucas knew Dr. Bennett was not whether he knew difference between and whether wrong or right nature and his acts. quality Ornsteen,

Dr. a prominent specialist neurology Abraham and he examined Lucas testified that psychiatry, 20, 1957 for Hospital approximately Trenton State August from two hours. Dr. Ornsteen found Lucas suffering is “basic mental retardation which “two-fold” condition: as schizophrenia.” and a mental disease known congenital, Ornsteen, “means a to Dr. according patho- Schizophrenia,' In terms of disassociat- of his logical personality. splitting his situations his life’s understanding ing, splitting up, and life in which he was the total situation brought means is, his Schizo present predicament and what [sic] observed, I mind, means and and split, phrenic everything of the interpretation from observations my things examination, examina- I from the the psychiatric gathered time.” He tion, man was ill at that mentally this from “a very to be marked suffering speech found Lucas distorted, enunciation were His articulation and disability.” Lucas him understand. showed evidence difficult to making confused, of being mentally limited under- having “very of the over-all standing situation at the time in which he was involved and affected.” His “was “insight” limited very and restricted puerile to a level. is the level of [T]hat child facts, who knows can whаt repeat he is told” but evaluate cannot the “over-all his import of predicament.” Dr. Ornsteen that the opined schizophrenia which is “not an acute but process, a slowly deeply developing, ingrained abnormal or condition brain pathological functioning” from which Lucas suffered, 14, existed on March “and for a time that.” The long before doctor was asked: “And, sir, you opinion do have an as to whether or not this sub- ject right wrong knew the difference between on March 1956? pertained act, act, A. Insofar as it to an an anti-social which was psychopathic thinking; based on his mental illness and he could not right wrong.” differentiate between cross-examination,

On to prosecutor sought impeach the doctor’s testimony with to whether Lucas could respect between distinguish and right by to his wrong referring taken in testimony previously the trial without the presence At time jury. that the doctor had stated that Lucas had the capacity between and distinguish right wrong level, e., on a theoretical i. that because of his religious he knew the difference training between and right wrong in the same manner “as a child understands his numbers in the first but that he taught was unable control grade,” when driven his behavior to certain acts reason of his mental illness. “At those times his conception of right differentiations are not wrong available to him. He doesn’t have the freedom of choice.” Bird,

Dr. Ivan a psychiatrist, testified that he had had to examine Lucas twice in 1954 occasion also examined him the of defense request at counsel twice in of April 1958. On the occasion his examination in of 1958 he found Lucas talk,” at speech his times a “willing although was little difficult to understand. His were that findings Lucas was a schizophrenic type. from a defect of personality

“suffering a reaction that That type personality is a'classification him rather I found to be simple we recognize psychiatry. did I not childish or in his responses. and sort of puerile time mentally find that he was ill at actively particular I I him times that examined examined two April, He felt were inconclusive. him." In 1954 his findings He was was a mental defective.” Lucas “possibly reactions, indifferent, barely able in his rather “simple * *” * In with or questions insight judgment answer whether Lucas was develop 1954 the “was unable to doctor defect” mental defective or another type personality a recommended tests which he because requisite psychological Dr. Bird was not asked question were not conducted. Again in the framed familiar M’Uaghten language. B. eminent qualifi-

Dr. James with Spradley, psychiatrist cations, Dr. first observed testified for the State. Spradley Lucas period interrogation examined his during 19, 1956. At that time saw on December police of a of mental confusion aberration degree no evidence from correct him way prevent giving which would any which to him. As a to the were posed answers questions was the opinion examination Dr. Spradley result of his not a mental a low but mentality, that Lucas was of average was a psychopathic defective. The doctor stated Lucas he defined “social misfit.” as a personality, insane time. his that Lucas “was conclusion he knew conse- he knew what he was That doing. That him as sex he was “I doing.” what quence recognized his and, sex to own deviate, so-called pervert, according the result of admission, he was That was a pyromaniac. of him.” my study Dr. examined Lucas 2, 1957,

On January Spradley again that he noticed at the Jail. At time County Mercer change talkative in he was not as as his reactions: frightened, before; reticent to answer and vacillated questions, more wasn’t He felt that Lucas as to whether he was or guilty. was to some of develop type acute going psychosis, although he did not know what form it would take. He could have become In acutely suicidal. depressed prevent order to illness, of mental or if acute such did onslaught develop shorten duration attack, to he severity recom- mended that Lucas be sent to the Hospital treat- ment and for his commitment. Dr. signed papers was of the that Spradley Lucas had the opinion to ability from March distinguish right wrong 14, 1956, on and also 2, 1957, on January his condition despite change that date. apparent from evidence adduced the find, did, could that the

jury they defendant was legally sane under the rule at the time of M’Haghten the commis sion of the act. Counsel for the defense submitted six on the issue of requests charge insanity, not the alterna tive, forth various tests for setting criminal determining number responsibility. 34 was Request framed the familiar M’Naghten terminology: grounds insanity, “To establish a defense on the it must be clearly proven that, committing act, at the time of the

party laboring accused was under such defect reason from disease quality mind as know the nature of the act he doing it, if was did know that he did not know that he was doing wrong.” what was The trial court denied the on the request that he grounds had so already charged, as indeed he had. The court charged: ground insanity, “To establish a defense on the it must be proved committing the time of the act the accused was laboring such a under defeсt reason as not to know the nature quality doing, or, it, and the of the act he was if he did know doing wrong.” he did not know what he was Requests 33, 36, 37, 40, numbers charge 39 and were denied, appear be variations and amalgamations of Durham M’Uaghten, (Durham States, v. United 228, U. D. C. App. S. 214 F. 2d A. L. R. 2d 1430 68 criminal and tests of impulse C. Cir. irresistible

(D. 1954)) responsibility. rule

The defendant that urges M’Naghten presently Because the rule in New Jersey. should not be continued as merits, on its of that question our desire of dispose the offense the serious consequences in view of particularly of the State we bypass arguments charged, there is no not raised because question (a)' properly on any for a of insanity foundation in the evidence finding criminal and (b) of the other tests of responsibility, in the not framed charge denial of inconsistent requests to error on appeal. form the basis for alternative cannot the time rule, that at com The M’Naghten under act, accused was party laboring mitting as of the mind not to a defect of reason from disease such or, he was of the act quality doing, the nature and know did know what he was it, doing if did know that he not in 1846 in was in this State State first adopted wrong, & T. 1846). J. L. 196 has been (O. v. 21 N. Spencer, decades, for six attacked as unsound or archaic periodically have adhered to the rule. courts Genz Jersey but New Noel, State, 1896); L. & A. v. (E. J. 488 State v. 59 N. v. 108 (E. 1926); George, L. 659 & A. State 102 N. J. Cordasco, 2 J. & A. v. N. (E. 1932); N. L. State J. 508 Gibson, White, v. infra; State 189 See State v. (1949). N. Huff, v. J. 15 N. J. 384 (1954); (1954). in Gordasco met Wachenfeld challenge

Mr. Justice as follows: by many give as seems ancient nevertheless “The rule condemned security society protection great as measure present-day permit. complexities exigencies will circumstances cases, presently rule as inscribed our concur We by precedent con- but reаson of our we are restricted because problem possible depth difficult and the of a most

sciousness of flowing appel- consequences therefrom. The standard serious uniformly place urges acceptance fol- heretofore lant for practical application sufficiently defined has not been lowed might open responsibility the door to the evasion of criminal so public to transcend and threaten the interest which our laws seek protect.” (2 J., page 198) N. at

Since Gor-dasco case come the has renowned opinion States, Bazelon in v. 94 Judge Durham United S.U. D. C. App. F. 2d R. 228, 214 A. 45 1430 C. (D. L. 2d 862, Cir. 1954), which follows the New test closely Hampshire Pike, of criminal 49 responsibility enunciated in v. State 399 N. H. Ct. 1869). The Durham test “is (Sup. simply that an accused if his unlawful responsible criminally act was the of mental product disease mental defect.” 2d, 214 F. at pages 874-875. Durham there

Eollowing has been a flood of literature on the issue of criminal The critics of the responsibility. rule were revitalized M’Naghten the fact that New by Hamp shire was joined by District' The Durham Columbia. test far has thus been in unsuccessful singularly winning adherents. has recently rejected been the following cases: v. People 140 Cal. 2d 295 2d Ryan, App. 412, ‍‌‌​​​​‌‌‌‌​​​‌​‌‌‌​‌​​​‌​​‌‌‌‌‌‌​​‌​‌‌‌‌‌​‌‌‌‌‌‌‍P. 496 Ct. (Sup. 1956); v. Ill. People 60, 11 2d Carpenter, 142 Goza, N. E. 2d 11 1957); Ct. v. 317 W. (Sup. S. State, 2d 609 (Mo. Sup. 1958); 151, Ct. Flowers v. 236 Ind. 139 N. E. 185 2d Ct. v. (Sup. 1956); Commonwealth Chester, 150 N. E. 914 Sup. 2d Ct. (Mass. 1958); Jud. State, v. 917, Sollars 73 316 248, Nev. P. 2d rehearing denied 73 343, Nev. 319 P. 2d 139 Ct. 1957); State (Sup. 12, v. 120 Vt. Goyet, 132 A. 2d 623 Ct. (Sup. 1957); State Collins, v. 50 740, Wash. 2d 314 P. 2d 660 Ct. 1957); (Sup. State, v. Bryant 565, 207 Md. 115 A. 2d 502 (Ct. App. Quite 1955). recently Pennsylvania, in a strong opinion, reaffirmed its adherence to v. M’Naghten, Commonwealth Novak, 199, Ct., 395 Pa. 150 A. 102 2d March (Sup. 16, 1959, 27, denied v. April 1959). Howard rehearing Cf. States, United 232 2d F. 274 Cir. Andersen (5 1956); States, v. 237 2d United 118 Cir. v. (9 1956); F. Sauer States, Cir. 1957), United 241 F. 2d 640 certiorari denied (9 940, 1405, 354 77 1 Ed. 2d U. S. S. Ct. L. 1539 (1957). 70 States, it

In United held that Andersen court supra, v. United States Supreme bound the decision States, 353, Ct. 469, 16 v. S. Court Dаvis United U. S. States, 328 and Fisher v. United Ed. 499 L. (1895), 1318, 90 L. 1382 (1946), U. Ct. Ed. 463, S. S. Durham, but further indicated therefore not follow could that it had: * “* * Hampshire join no desire to courts of New ‘magnificent of Columbia their isolation’ rebellion District Hampshire traveling against though M’Naghten, has been even New Pike, H. v. 49 N. road since See State down lonesome 1870. trudge along Pike, along prefer with we Bather than stumble 399. century ago pike the now more than a well-traveled blazed page 127.) M’Naghten.” (237 F. 2d have who are not to assume that those yet ready

We e., act, i. the nature of criminal quality and a of cognition the with conse-' reality sufficient contact to know who have have mental act, capacity of such or who the quences an held should be to from nonetheless right wrong, distinguish of “mental the act was the “product” unaccountable because disease or mental defect.” the connotes is a term

Eirst, product? Obviously what noted has psychiatrist recently some causation. One type of mental identity that there is an between illness suggested in the behavior and criminal following language: illness does not cause one commit crime nor does “Mental produce a are crime. Behavior and mental mental illness illness thing.” “Criminality inseparable and and the same Roche —one Coin,” the 22 Illness —Two Faces Same U. Ohio L. Mental of 320, (1955). 322 Rev. has Another author suggested: * “* * average psychiatrist’s moreover, attitude the toward embody, assumption, such as basic that criminal behavior seems can, therefore, prima of mental disease. behavior is evidence facie necessary psychiatrists expected hesitate to find the few will disease, they crime the once have causal connection between exist, knowing determined disease has сrime been committed.” Grazia, Being Mad,” D e “The Distinction 22 U. (1955). Ohio L. Rev. it If is true that, from a anti-social psychiatric viewpoint, behavior defect, either evidences mental or equals or disease then the Durham test comes perilously close to suggesting that proof of the commission of a crime is prima also facie evidence of the legal irresponsibility accused.

What of “mental disease” “defect” or employed Durham test Is, instance, ? label diagnostic “psychop- Note, a mental disease defect? athy” See 10 Rutgers L. Rev. 425 If the (1955). of what is a mental question disease or defect one, is psychiatric then the law has abdicated its function of criminal determining responsibility the psychiatrist jury will have to accept view of mental disease unopposed psychiatric or defect. The will test differ with the prevailing psychiatric winds of moment. Professor Hall has recently cautioned: lawyer pondering psychiatrist “The the attacks critics might meaningful impulse.’ also consider case of He ‘irresistible only ago concept would discover a short time em- phatically presented example opinion as an the ‘uniform’ psychiatrists responsibility; yet today on criminal ‘irresistible impulse’ rejected by psychiatrists point, most as unsound! At this inquiring might lawyer psychiatric knowledge well conclude that being indisputable, is far from and that to reach a sound conclusion something among of his own he must do than more choose experts.” Hall, “Psychiatry Responsibility,” and Criminal Yale (1956). L. J. 762 If, on the hand, other mental disease are or defect legal terms jury and the is free to disregard unopposed psychiatric evidence, and their substitute therefor own definitiоn of mental or what defect, disease standards have to them? In our view they guide the Durham test is not an over improvement At its worst it M’Naghten. absolves from criminal too responsibility those large segment who the law can if than it is transgress society permit to

73 nebulous, social order. At best it is preserve leaving to facts upon to about for relevant jury grope should base a accused should or sensible decision Hall, supra, not bear the for his act. responsibility See J., L. Yale 770-771. pp. a firm time as we are convinced Until such foundation in fact that a test for criminal responsi scientific our other than will serve the basic end of bility M’Naghten e., criminal from society i. jurisprudence, protection acts, anti-social we shall adhere it. As Professor to grievous Hall has observed: aptly “® ® * Legal response controls cannot be abandoned to alleged findings of whether current science .until it is ascertained necessary operation knowledge the scientific effective of the actually new laws available.” further over

We find no considered improvement M’Nagh ten, and therefore refuse either the irresistible to adopt, an test by minority jurisdictions impulse adopted the Model embellishment or complement M’Naghten, Penal rule. See Code’s modifications M’Naghten I., Code, A. L. Model 4.01 No. 4, Penal (Tent. § Draft 1955).

III. Inquiry Into Failure Court Conduct an Ability Trial. Defendant’s to Stand The contends that erred in failing, defendant court into motion, on its own to embark a collateral upon inquiry mental trial. Lucas’ to stand capacity

A defendant whose mental condition is such intelli his consult is unable to comprehend position, defense, his put with counsel and cannot plan gеntly Peacock, 50 N. J. L. 34 Ct. 1887), trial. State v. (Sup. & J. L. 653 A. 1888); reversed on other N. (E. grounds, Noel, & J. L. 659 A. v. 1936); v. State (E. N.

73 Auld, Gibson, 2 N. J. v. 426 State 15 N. J. 384 (1949); (1954); State v. 44 N. Konigsberg, J. Super. 281 (App. Div. 1957).

N. J. S. 2A :163-2 authorizes the to trial conduct judge a in advance of trial to determine hearing of sanity the accused at that time upon application by counsel.

But our case law has also prescribed that such an inquiry be made may the course of trial on motion of during Peacock, either the court or v. In State counsel. supra, Mr. Eeed Justice held: undoubtedly person insanity “It is law who reason of comprehend position, defense,

is to unable his his make placed upon cannot be trial crime. If the court either before during progress trial, upon or of such a either from observation or suggestion counsel, brought of have facts its attention which respect, raises a doubt the condition defendant’s mind in this question step should be settled before another is taken. The settling preliminary question, method this where is it subject statutory regulation, is within the discretion the trial upon inquiry, court. The court can itself enter or submit the question jury empaneled purpose.” L., (50 to another for that N. J. page 36) at Auld, And in State v. supra, Oliphant Mr. Justice declared for this court: brought question “If the condition of mind defendant’s into respect pleading trial,

in this at the time of or at from either suggestion counsel, question observation immediately at the should be upon inquiry The can settled. court itself enter question jury impaneled purpose. or submit the to another for that Peacock, 1887), (Sup. State v. J. L. 50 N. 34 Ct. reversed other grounds, (E. 1888) ; Noel, & 50 N. J. L. 653 State A. v. 102 J., (E. 1926).” (2 page 435) N. J. L. 659 & A. N. Gibson, v. State This with language quoted approval Walker, v. supra; N. J. but (1954). cf. But in while the court has the an power order trial, defendant’s mental stand quiry qualifications failure to exercise the will not be reviewed on powers appeal, it unless the defend- clearly convincingly appears ordinarily to be trial. is ant was of incapable standing far posi- in a better counsel, that defense who is expected facts concerning assay than the trial salient tion judge in his own and assist to stand trial the defendant’s ability such an inquiry defense, request would originate conducted. did not err the trial In the instant case judge motion, and, on his own engage halt the trial failing defendant’s into the issue of the inquiry in a collateral hint in the The only to stand trial. mental qualifications Ornsteen, Dr. score was the of testimony record on this cross-examination to a on question testified response who of the confession admissibility as to inquiry during as follows: the jury, of presence without mentally you competent “Now, sir, time this do think he attorneys preparation his of defense? with his in the to consult preparation. Incompetent him un- but He can confer with A. depth understanding. reliably, He because he doesn’t have Certainly, insight can values. of abstract doesn’t have the advantage.” his but not confer Trenton Larsen, at the hand, Dr. a psychiatrist the other On as to the defense on inquiry for Hospital testifying State his confession, stated that upon admissibility 3, 1958 Lucas March Hospital release from State free of psychosis. was this defense, confirmed fact Bennett,

Dr. testifying the time his release: Lucas at further stated “* * * remission, gone good appeared into a state or to have consulting capable his counsel in his with we he was felt charge defense, to court and face the and able to return own lodged against him.” had been trial court that the we cannot conclude Erom these proofs a collateral into inquiry to conduct under any duty trial. to stand ability the defendant’s

75 IY.

Charge Eegakding the Elements oe the Crime.

The defendant asserts that the trial court failed to define the basic elements the crime, State v. citing Butler, 27 N. J. 560 The arson referred (1958). to in N. J. 2AS. :113-1 is the common law and Butler, State v. crime. statutory supra. Common law arson is the willful and malicious house burning dwelling Fish, State v. another, 27 N. J. L. 323, Ct. (Sup. v. 1859); N. J. Midgeley, 576-577 (1954). The trial court in a charged modified form (the modifica- tion did not concern the elements of arson set forth the request) defendant’s request charge number 28 : prove “In burning by order to establish its case the State must single building willful act of the Defendant. A burned does not fact that has been prove arson.” Other references to arson were: specifically charged burning “[Defendant] is with the unlawful ¤ * * * * * * * Rectory causing of death *. parts] part [Defendant’s is defense divided into two the first * * * guilty is, that he is not of the offense ‘that he denies * * *’ rectory that he set fire to the part you beyond The second is that if find a reasonable doubt that rectory,’ he did ‘fire the then he was insane at the time he set the * * *

fire. disputes proof [Defendant] the accusation and the that he set * * rectory fire to the *. * * * * * * * * * [You must] resolve whether he did rectory. set fire 14, 1956, Defendant, The State contends that on March Elber ** * Rectory. Lucas set fire to the v The resultant fire an administrative officeand a ^[*] >:= ignited ^[*] goodly portion dwelling ^[*] * * of the ^[*] Rectory occupied ^{[*] [*]} Thus, that were told must find from the jury they evidence that the defendant set fire rectory doubt, fur- a reasonable and beyond used as a dwelling must that it was willful act

ther, prove that the State not prove that was burned does building the fact arson. state did not specifically is true court house burning dwelling

that arson consists of of “maliсiousness” was another, and the element specific failure it be said that this consti But cannot charged. the fact is raised regarding tuted error. Eo plain question indeed, there are ample that the was a dwelling, rectory that it was. in the record to establish proofs Butler case the trial court may While under the elements the fundamental under an to charge obligation error not result reversible crime, failure to do so will case, the entire it is where, apparent from the context of have been of or confused ignorant could not jury “the to reach form legal implements misled regarding a verdict.”

Y. Imprisonment. Relating Chakge to Like p. m., 22, 1958, the retired At 9 :20 on May jury p. returned deliberate its verdict. At 11:00 upon they m. to the courtroom where the ensued: following you jury, I have a note from “The Court: Members the question is a life sen- ‘Your number one: ‘What reads: Honor’- — Jersey?’ in tence New question a sentence has arisen Question number two: ‘The life eligible would and we would like to know when the defendant be parole.’ for Jury.’ Signed: ‘The your question, Is that Mr. Foreman? Yes, Mr. Foreman: sir. jury you bring if in a the The I will instruct Court: degree guilty with a recommendation of murder the first verdict imprisonment, to life must sentence the defendant of life the Court imprisonment. Jersey Board, regard power Parole to the New With you statute. I will read the Statute, quote Revised titled I ‘30:4r-123.1T and from that statute: ‘Any prisoner serving eligible a sentence of life be shall for con- parole having twenty years sideration for on release after served five sentence, computation good his less time for behavior and time diligent application credits earned and allowed reason of to work assignments.’ course, your you Of continued deliberation will consider all of my charge as heretofore made. jury may The now retire.” objection No was made to this the defense. charge by The jury again retired to jury room for further deliberation 11:05 23, at m. At 1958, 12:15 on re May they p. A. m., turned to courtroom, a having agreed upon verdict. Three later, 26, days May this court decided State White, v. 21 N. J. 158 There be (1958). can no doubt that the charge here in is not when question compatible measured against model set forth Mr. charge Chief Justice case, Weintraub in the White upon to be given inquiry the jury of a sentence concerning meaning of life im prisonment. The is: it Is error within question plain context of the case? present We are of opinion that it is not. In Mr. White Chief Justice Weintraub com mented on the core the problem addressing argu ment that harmful, given was not charge follows: agree harmless, jury, “We cannot error is if doubtful penalty as to whether should be death or satisfied that it should imprisonment, life should withhold a recommendation because the may agency may death sentence be commuted or because another grant parole sentence, comprehend on a life it is difficult how can (27 it be maintained there is no harm defendant.” J., page 177) N. Here the did jury not withhold recommendation of life imprisonment, if erroneous, so even charge, not prejudicial to the defendant in the final analysis.

But the defendant argues, here the was not de- jury liberating death, on the of life or but on the question ques- tion of life acquittal or The imprisonment. argument gauge to appellate yardstick We have no

too speculative. determine whether order to proofs the state of life imprisonment, meaning as to jury, inquiring life imprisonment between deliberating was at thаt time the in- inference from The only legitimate and acquittal. a recommenda- least considering is that the is at jury quiry Where, they an erroneous charge, after mercy. tion of recommendation, without return with a verdict of guilty error may drawn ‍‌‌​​​​‌‌‌‌​​​‌​‌‌‌​‌​​​‌​​‌‌‌‌‌‌​​‌​‌‌‌‌‌​‌‌‌‌‌‌‍inference can be that the further harsher verdict. towards them sway have helped return with recommendation where, here, as they But is as if not great, the probability just life imprisonment, did to operate instruction not that the erroneous greater, it is that it than dissuade them from recommendation an should not that acquittal them operated persuade be had. defendant’s argument is even important,

What more if they that the jury, rests on the premise underlying meant really life imprisonment believed that sentence of the defendant. The would have acquitted life imprisonment, type White was intended to change model charge the addition of statutory here language charge given that extent the not automatic. To indicating parole thesis to defendant’s than here was more beneficial charge in White. YI. Expert Psyoeiiatrist Testifying on from

Restriction Hearsay of the Defendant. Statements two occasions Dr. Ornsteen attempted testify On made him the defendant. various statements as to objection testimony hearsay The prosecutor’s doctor was admissible because the not treating the court. This was an undue was sustained by physician the doctor’s testimony. Generally scope restriction because are not offered hearsay, they statements .are not such as of tire proof facts asserted, but as circumstantial merely indications of the state of mind of the accused (insanity) as a foundation for the dоctor’s 2See findings. Wigmore, 14; 6 supra, p. Wigmore, 1790. The supra, rationale § § of the non-hearsay such aspects of is that one testimony of the main sources of proof is the insanity conduct of the person. In this connection verbal conduct is as im- as portant non-verbal in the psychiatrist’s view. The psy- chiatrist is not so interested in the truth of is what said he is in as the fact it was said. Witness the classic illustra- tion a man who claims that he is state- Napoleon. Such ments are McCormick, evidence of irrationality. See supra, 288, at pp. 467-468. §

However, the error was not An prejudicial. examination of Dr. Ornsteen’s subsequent testimony reveals the ruling did not the impede doctor’s ability to fully adequately his convey diagnostic impressions and opinions.

It should be noted that there may be instances in which statements made the by accused psychiatrist also might relate to the or innocence guilt accused. In the case, instant instance, Dr. Ornsteen did testify fully without the presence of the jury state concerning ments made to him by the defendant. these was Among the statement that Lucas denied guilt of the crime. In such instances the introduction of the testimony per missible where the psychiatrist asserts that it constituted element in necessary the formulation his opinion. In event, should testimony .an by circumscribed appropriate limiting charge by trial court effect it should not be considered jury as substantive evidence to the relating question guilt innocence of accused, but only evidence tending support ultimate conclusion expert of the psychiatrist ques ' tion of If it insanity. further appears the psychia trist’s opinion the truth hinges upon of the matter asserted, rather than the fact that said, it was thеn the jury should be instructed that the probative value of the psychiatrist’s will

opinion whether there depend upon is, from all the case, evidence in the independent proof statement made the accused.

VII. 1. Defendant contends that the verdict was against of the evidence. The rule weight is that “* * * jury against A verdict of a shall not be set aside as weight clearly convincingly appears of the evidence unless it mistake, partiality, prejudice that passion.” the verdict was the result of or (R. 1:5-1(a)) R.

As stated by Chief Justice Vanderbilt v. State Haines, 550, 18 N. J. at 565-566 pages : (1955) responsibility determining guilt “The whether of the defendant proven beyond jury, has been a reasonable doubt rests with the upon appeal only correcting injustice our resulting review is aimed * * * by jury perform from obvious failure to its function. Unless take, partiality, prejudice is an there indication that the verdict was the result mis- passion part jury or on the it ought not be disturbed us.”

In the evidence, of the entire light including independent proof corroborating trustworthiness of the confession, the defendant’s confession and numerous oral admissions interest against inference which the jury could draw from the legitimately defendant’s failure to the contention that testify, verdict was against of the evidence is without weight merit.

2. It is further asserted that there was error in the trial court’s charge concerning defendant’s failure to The testify. court charged: brought against “Under our law where evidence a defendant tends which, true, justify justify to establish facts if would or tend to position a conviction and the defendant is in court and is to deny knowledge, such evidence of own his and if he fails to take behalf, justify strong the stand in his own then his silence will deny appliеs

inference that he could not such This evidence. rule to position evidence which is direct and which the defendant is in a deny. apply may circumstantial, only It does not to such evidence as raising guilt, an inference of and which the defendant in a position deny knowledge.” of his own case, Under the circumstances of this the charge fully accords with the views set forth in the recent ease Corby, v. 28 N. J. 106 (1958).

3. The defendant argues that the trial court com mitted error in failing certain charge requests to charge relating circumstantial evidence and predicated upon Donahue, 381, State v. language N. J. at pages State v. 29 N. (1949). Dancyger, J. 76 (1959). Cf. While we do not comment on the merits of the Donahue rule under case, the circumstances of that the rule is clearly where, here, inapplicable evidence adduced State in of its support is not theory circumstantial.” “largely Defendant’s confession and oral admissions interest against were direct evidence of his guilt.

4. We further find no merit in defendant’s contention the trial court’s insanity charge confusing unfair, or that defendant was a fair denied trial or deprived of due process of law. It should be noted that there is in the nothing record indicate that the confession was or that involuntary the defendant was abused by police the period of his during interrogation.

We note that of many error points of were alleged raised for the first time on this appeal. Apparently they were not evaluated as rise to unfair- giving fundamental ness at the time of the trial.

All points raised the defendant have been examined and those not specifically alluded to herein we find to be without merit.

The defendant has a reсeived fair trial surrounded all of the substantive and procedural safeguards afforded by our system criminal He justice. was ably represented by three The competent counsel. ultimate question guilt to resolve from clearly jury one for

or innocence in the adduced and we can find no error pro- the evidence a its reversal of verdict. calling ceedings Term September 1958) The motion of the State (M-108, the record is denied the affidavit sub- supplement in considered of this cause. disposition mitted was not from is The affirmed. appealed judgment Weintraub, opinion C. I join J. (concurring). Bulling a but I follow different route Justice Mr. not be that the rule should abandoned. concluding M’NagMen depends is sound M’NagMen upon starting Whether stemmed from M’NagMen selects. presumably one point is The which our criminal law based. premise upon an law evil-meaning the “concurrence required common States, hand.” Morissette v. United mind with an evil-doing 246, 251, 240, 96 L. U. S. 72 S. Ct. Ed. 288 (1952). terms, In mens rea consisted oí sense of general wrong therefore, that law It is not the common doing. surprising, to be which lawyer insanity something negated conceived legal e., crime, i. an appreciation the mental of the ingredient of the act. wrongfulness liability The law of criminal was doubt- concept common then, now, Men had the “scientifically” less determined. understand and act the basis of reasonably upon urge to deal what it they comprehend. They thought “just” with commit hostile acts with sense criminally men who distilled judgment was moral or ethical wrongdoing. times, from total beliefs including circumstances as to men act as do. why they

The law mens has been in from the common rea pull directions. Mens rea has been abandoned with opposite offenses, in fact some writers to certain respect statutory watered terms law somewhat concept describe common intentional of a forbidden only an require doing would hand, would M’NagMen On the critics of heighten act. other element. Their avenue a broader mental required view of “defense,” but, as a I insanity it, as see the attack in essence is upon crime, mental for al- ingredient we deal with though we insanity defense, as a do so for procedural purposes only, being permitted on the proceed presumption of while the defendant sanity must the burden carry of persuasion on his denial of mens rea by reason of insanity.

No one will dispute must be society from protected the insane as well as the sane. The area of disagreement is whether civil a or a criminal should process be employed when forbidden acts have been committed. If we could think of a conviction simply as the mortal finding in question has demonstrated his capacity for anti-social conduct, most of the battle would be decided. What would remain is the employment of such post-conviction tech- as would redeem the niques offender if he can be redeemed and secure him if he cannot. The proposal before how- us, ever, does not relate to post-conviction disposition but rather to the question whether the criminal shall process be in- voked to a basis for adjudge deprivation of liberty. in that frame of reference that we are asked to abandon in M’Naghten favor of another concept insanity will excuse. I cannot subscribe to the proposal number of reasons. The first is essentially negаtive rejection of the criticism —a the law retaining M’NagTiten has failed improperly abreast keep of psychiatric advances. The frame of refer-

ence, I have said, is not the post-conviction disposition of an offender but rather his amenability to adjudication in the criminal process. So we have long as processes two which may be employed deal with custodially anti-social conduct, one criminal and the civil, other the test for their must application be the existence or non-existence of blame- worthiness in a personal Here, believe, sense. I there is an irreconcilable conflict between the present thesis of the criminal law and I find the thesis implicit the psychiatric view man. Our order social accepts held postulate, citizens and buttressed religious most

varying degrees is with the to choose tenet, every capacity that man endowed as he able to detect a course is correct of behavior so long we start with the bad, it. In sick from the separating man adhere Upon of to to right. indisputable ability On the other is unassailable. assumption, M’NagMen this hand, the psychiatric approach inevitably challenges Psychiatry for a of blameworthiness. personal basis finding but a volitional apparatus, does the existence of recognize the intellect it to with integrated conceives be inseparably view, man Erom no can be objective the emotions. its have the dimensions of these said to selected shown) (or be author of of inadequacy faculties and hence to deemed mock Indeed, them. the unconscious is to any of havoc that approach with conscious. plаy Upon free of blame in and the wicked would be equally sick sense. There be no denominator which personal could differentiate one in terms of individual would justice thesis from the Hence the thrust of the psychiatric other. aas insanity defense, would be to discard all of concepts Durham, other, some and to deal with IFNaghien, be it all as unfortunate mortals. transgressors here to choose between these con- my is not purpose move in they theses. Rather my point flicting two and hence a opposite conglomeration directions “just” will the riddle of what is individual. not solve himself, one a better but Man obtain may day glimpse be scientific- until a basis for blameworthiness can personal would tinker with the law ally demonstrated, I existing Rather I permit would accountability. of criminal human have scientist’s behavior to growing knowledge it be the area in which can utilized sway safely wider individual. I evident society with fairness of the offender. In disposition refer to the post-conviction followed in that is the course the essence, Legislature adopt- it statute. There did not provide the sex offender ing behavior shall compulsive repetitive, a pattern defense, but rather made it a factor in the determination of whether the convicted offender shall be placed custody for treatment or shall be confined a penal institution. N. J. 2A8. :164-5 et seq.

The second reason I can not why another adopt concept follows hard insanity upon what I have said. already It is the vagueness the doctrines I think proposed. they are vague will remain until (or some vague arbitrary) one demonstrates rational a basis for a finding personal blameworthiness and devisеs a test rooted to it. I gather that of M'Nagbten critics would a recognize psychosis as the kind of illness which should excuse. But what of the neurotic or psychopathic, say of the victims nothing of other mental defects or disorders? What is a disease What, defect the mind? in terms appropriate to "criminal responsibility, differentiates the functional aberra- tion called a disease or mind defect from what called a inscrutably defect of character? However helpful such classifications be may approach to treatment sick, I cannot find in them a pivotal fact which upon criminal would a depend, fact to which liability key trial and the consideration jury’s could be addressed. I if line, that were asked to fix a suspect psychiatrists most would ethical resort an or social the truth concept, which could not they demonstrate. expertly

The and most important third reason is the inability of to deal with the total judiciary We problem. all agree must be If society protected. we are to excuse an offender from the criminal process because of there insanity, must be a civil for the process area adequate abandoned. I that civil doubt commitment be ordered could under exist- in all statutes cases in an ing acquittal would follow under Durham or some such doctrine. And if that hurdle be judicially, could overcome the problem of release would The formidable. this case testimony illustrates my A point. defense psychiatrist found Lucas be schizophre- so, nic and irreversibly but he added that whether Lucas fantasy depended his of religion within harmlessly could live he did, If he then set fires. in fact he did whether upon his freedom. he was еntitled to confined; otherwise should be State, satisfied that for the expert, testifying Another agreed on cross-examination a but psychopath, Lucas was whether a deviate depended upon he was -sexual whether he was pyromaniac he deviate and whether did fact That arson. whether he did in fact commit upon depended based, I application same had commitment witness signed found, he but rather illness underlying not gather, upon might which he feared tensions which detected upon further, the defense psy- Still while into erupt psychosis. the psychosis was certain that chiatrist mentioned above continue, yet would was irreversible and degeneration institution, who found Lucas schizo- head of the mental him as free of admission, any later discharged phrenic on are All witnesses illness. of these overt of eommittable sign do not and I imposing question men of qualifications willing I am to let views, of their but sincerity produce a science which can security society depend upon human A behavior. probable such estimates conflicting if else it something release from would be custody (1) a re- opinion an affirmative medical upon depended were is there negatived; currence of illness strongly (2) a firm the grip upon there were supervision; (3) parole custody upon man to the that he could be returned to end the commission of recurrence without signs possible awaiting mental act; and the heads of another (4) of anti-social the added responsibility institutions were oriented to legislative In the my judgment, only would be theirs. which would branches can provide techniques executive its ventured from view necessary present if the judiciary responsibility. оf criminal a of which would consideration, weight is further

There view of events under an upon expansive course depend a facilities are Existing psychiatric defense. insanity of be denied scene. can present hardly for the inadequate penal that much our suffers from population mental dis- orders for which treatment now If cannot be provided. a concept broad defense were adopted the decision whether raise it were the accused, left with problem would acute a not be because defendant would advance rarely in a the defense case other than murder. But if the proper the insane is disposition of offender deemed matter to be in which has society stake and hence the overriding State should invoke the if process civil mental disorder appears, hospitals staffs their would be incapable with added in the coping burden absence additional resources which the other branches only can government supply.

Eor all practical purposes the furor over M’Naghten is confined to the disposition of offenders convicted of murder. It is the death penalty which Whatever sparks quarrel. may be their thesis of personal blameworthiness and of justice individual, to the I think should that all thoughtful persons would at least when pause man judging portal of death. All must doubts The congregate there. ultimate with responsibility respect to capital punishment is, course, legislative. But there is an area within the present statutory scheme in which the can and judiciary should move to accommodate the I refer divergent views. to the admission full psychiatric testimony jmry’s consideration whether a man shоuld live determining or die.

I have no doubt that such in the testimony case belongs for that I am convinced the purpose. intended Legislature so when in resolving over controversy capital punishment it provided that the shall fix ‍‌‌​​​​‌‌‌‌​​​‌​‌‌‌​‌​​​‌​​‌‌‌‌‌‌​​‌​‌‌‌‌‌​‌‌‌‌‌‌‍jury State v. punishment. White, 27 N. J. 158 The mental (1958). of a condition man is inseparable so from the issue aof just disposition— him just to and to it society that the inconceivable —that Legislature intended it. to exclude The functions of the mind are an integral part criminal event itself. The law a mens rea. The requires pre- mental

specific operations necessary guilt, they meditation, deliberation, willfulness, in- felonious murder, in a tent cannot be isolated from the total felony limit the proof functions of the mind of the offender. To to that of the total mental part activity technically bears the issue of is to conceal event upon part guilt The in de- itself. whole truth should be disclosed so of life or death the will know ciding question jurors itwho is who stands before That disclosure is neces- them. for the sary judgment moral must reach. jurors I with Hence the view of Mr. Justice Francis agree White, his in Slate v. that such concurring opinion supra, should be admitted the matter testimony punishment. The result would not be but it would be perfect justice, stride toward meet I is the it. would what believe under reason for the It would lying upon M’Naghten. pre attack serve for the lifetime society upon offender which grip it needs for its And it protection. finally satisfy would well-founded that he cannot complaint psychiatrist as a medical when he is fettered testify expert artificially legal concept insanity. Sciiettino, JJ., Jacobs result. concurring Weintraub, For Justice and Justices affirmance —Chief Burling, Jacobs, Francis, Proctor, Hall and Schet- tino —7.

For reversal —None.

Case Details

Case Name: State v. Lucas

Court Name: Supreme Court of New Jersey

Date Published: Jun 1, 1959

Citation: 152 A.2d 50

Court Abbreviation: N.J.