State v. Schilling

• Decision Date: 15 November 1920
• Citation: State v. Schilling, 95 N.J.L. 145, 112 A. 400 (N.J. 1920)
• Court: New Jersey Supreme Court
• Parties: THE STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. PHILLIP SCHILLING, PLAINTIFF IN ERROR

112 A. 400

STATE

v. SCHILLING.

Court of Errors and Appeals of New Jersey.

Nov. 15, 1920.

(Syllabus by the Court.)

When a person 28 years of age kills an officer to escape from arrest and sets up as a defense that he had not sufficient mentality to form in his mind an intent to take life, or to deliberate and determine to execute that intent by a premeditated act, the burden is on him to show his lack of sufficient mental power to conceive and execute the crime. There is a vast difference between a child at the age of 11 years and that of a man of 28, and, while perhaps, there is a presumption that an infant of tender years is incapable of committing a crime, that presumption does not extend to one of advanced years, requiring the state to rebut it. When a man reaches manhood the presumption is that he possesses the ordinary mental capacity normally pertaining to his age, and it is for him to overcome that presumption, and whether he has done so is for the jury to determine. Deficiency of intellect is a species of insanity, and when that is set up as a defense for crime the burden is on the accused to prove it; the presumption being that he is sane.

(Additional Syllabus by Editorial Staff.)

Swayze, Minturn, and Kalisch, JJ., dissenting.

Error to Supreme Court.

Phillip Schilling was convicted of murder in the first degree, and he brings error. Affirmed.

Benjamin M. Weinberg, of Newark, for plaintiff in error.

J. Henry Harrison and John A. Bernhard, both of Newark, for the State.

BERGEN, J. The defendant, having been convicted of murder of the first degree, has brought the record into this court for review, and asks that the judgment of conviction be reversed because of alleged trial errors, those argued and considered being limited to certain instructions given to the jury, and refusals to charge as requested by the defendant. The circumstances upon which the conviction rests are that the defendant was arrested by a police officer named Ryan to answer to an indictment for robbery; that after the defendant was arrested he resisted the efforts of the officer to hold him, and in order to escape shot and killed the officer. The alleged errors upon which the defendant relies, and urges, in support of his argument for reversal of the judgment of conviction, are:

1. That the court charged the jury:

"The state contends that defendant had sufficient intelligence to know and to understand the nature and quality of the act, and that it was wrong; that a normal boy of 11 years has sufficient intelligence to commit murder in the first degree; that, at all events, this defendant is above the age of 11 years, and that the evidence of Dr. Crane, Dr. Clark, and Dr. Washington shows that he is responsible and knows the nature and quality of his act, and that it was wrong."

This was a mere statement of what the state contended, and there was evidence in the case to justify it; whether it was sufficient or not was for the jury to determine. The court did not charge, as stated in the brief of the defendant, that, "The normal boy of 11 years has sufficient intelligence to commit murder in the first degree;" all the court did was to state what the state contended had been proven, and there was evidence to support that insistence, nor is the law of our state contrary to that contention. The rule of law applicable in this state, and which has not been departed from, was laid down in State v. Aaron, 4 N. J. Law, 231, 7 Am. Dec. 592, in which Chief Justice Kirkpatrick said:

"It is perfectly settled, that an infant within the age of 7 years cannot be punished for any capital offence. * * * It is perfectly settled also that between the age of 7 and 14 years, the infant shall be presumed to be incapable of committing crime upon the same principle, the presumption being very strong at 7, and decreasing with the progress of his years; but then this presumption * * * may be encountered by proof; and, if it shall appear by strong and irresistible evidence that he had sufficient discernment to distinguish good from evil, to comprehend the nature and consequence of his acts, he may be convicted and have judgment of death."

In the present case the defendant is 28 years of age, and there was some proof that he was deficient in mentality, and that his reasoning powers were not beyond that of a normal child of 11 years of age, but there was also contradictory proof given by eminent and reliable physicians that the defendant was normal in mentality, fully aware of the quality and nature of his act, and that he knew whether his act was right or wrong. It appears that this man, 28 years of age seeks to escape punishment for his crime upon the ground that his mentality is to a certain extent deficient and that, according to the testimony of some of the experts, it did not exceed that of a normal person of 11 years, and it is urged that there is a presumption that he would be incapable of committing a crime to the same extent as if of the age of 11 years. But that is not the precise question presented, which, after all, is whether at the age of 28 he had sufficient mentality to distinguish between right and wrong, for at that age he would be presumed to be capable of committing the crime unless he was able to overcome that presumption by proof of a mental condition rendering Dim incapable of committing the crime, and whether he did so was a jury question, and they by their verdict have found that he had sufficient mentality to determine that it was wrong to kill this officer. We think that when a person 28 years of age kills an officer to escape from arrest and sets up as a defense that he had not sufficient mentality to form in his mind an intent to take life or to deliberate and determine to execute that intent by a premeditated act, the burden is on him to show his lack of sufficient mental power to conceive and execute the crime. There is a vast difference between a child at the age of 11 years and that of a man of 28, and while perhaps there is a presumption that an infant of tender years is incapable of committing a crime, that presumption does not extend to one of advanced years, requiring the state to rebut it. When a man reaches manhood the presumption is that he possesses the ordinary mental capacity normally pertaining to his age, and it is for him to overcome that presumption, and whether he has done so is for the jury to determine. The presumption of the lack of power of thought and capacity in favor of a child is due more to the number of years he has lived than to the character of the development of his mind, and it is a merciful rule established by the courts, due to his tender years, but that reason does not apply when he comes to manhood. Deficiency of intellect is a species of insanity, and when that is set up as a defense for crime the burden is on the accused to prove it, the presumption being that he is sane.

2. That the court charged the jury, in substance, that it was contended by the state that the defendant was feeble-minded, but that the law does not recognize every degree of feeble-mindedness as a defense to a criminal charge; that any feeble-mindedness might be considered with reference to the existence of an intent to kill, and its willful, deliberate, and premeditated character, and that—

If "at the time of doing the act, the evidence shows you that this defendant was so feebleminded that his faculties were prostrated and rendered him incapable of forming a specific intent to kill with its willful, deliberate, and premeditated character, then, although it is no defense or justification, his offense would be murder in the second degree. But I also charge you that in dealing with such a contention you ought to use great caution not to give immunity to persons who commit crime when they are merely morally depraved. You should discriminate between conditions of the mind merely blunted by familiarity with wickedness, and yet capable of forming a specific intent to take life and carry it out as stated, and such a prostration or condition of faculties as renders a man incapable of forming the intent and carrying it out."

The defendant admits that this charge would be faultless if limited to an intended killing which was minus willfulness and deliberateness, but insists that it is harmful, in that it charges that the defendant, even if so feeble-minded that his faculties were prostrated so as to render him incapable of forming a specific intent to kill, would be guilty of murder in the second degree. The objection which the defendant urges to this part of the charge is that there is no such crime as murder in the second degree without a formed intent to take life. But that is not the rule of law in this state. The rule is that where one takes life with intent to do great bodily harm only, it is murder in the second degree. The charge of the court should be read with regard to the subject-matter with which the court is dealing, and in this case it was the killing of an officer in the performance of his duty. Our statute (C. S. p. 1779, § 106) declares that if any person shall kill an officer of justice in the execution of his duty such person shall be guilty of murder, and in the succeeding section it provides, inter alia, that if the killing be not willful, deliberate, and premeditated, it shall be murder in the second degree; one of the elements of murder in the first degree being intent to take life. There was no error in the charge upon the ground urged in that behalf by the defendant, who in shooting an officer to escape from arrest was, unless justified, committing an unlawful act, the probable consequences of which would be bloodshed.

3. That the court instructed the jury that if, in making the arrest, an officer meets with resistance he is not obliged to retreat or desist, but may repel force with force, and if the officer making the arrest meets with resistance, and in the struggle to enforce the...