State v. White

Citation142 A.2d 65,27 N.J. 158
Decision Date26 May 1958
Docket NumberNo. A--103,A--103
PartiesThe STATE of New Jersey, Plaintiff-Respondent, v. LeRoy WHITE, Defendant-Appellant, and Robert Tourse, Defendant.
CourtUnited States State Supreme Court (New Jersey)

Ervan F. Kushner, Paterson, for defendant-appellant (Ervan F. Kushner and Sidney Adlman, Paterson, attorneys; Ervan F. Kushner, Paterson, of counsel).

Archibald Kreiger, Deputy Atty. Gen., for plaintiff-respondent (Charles S. Joelson, Deputy Atty. Gen., Acting Passaic County Pros., attorney; Archibald Kreiger, Paterson, of counsel).

The opinion of the court was delivered by

WEINTRAUB, C.J.

Robert Tourse and Le Roy White were convicted of murder in the first degree. Tourse was sentenced to life imprisonment upon the jury's recommendation and does not appeal. There was no recommendation for White, and he appeals from the judgment imposing the death penalty.

The homicide occurred in the course of a robbery on July 24, 1957. White freely admitted his role in the killing. He and Tourse planned the holdup. Tourse remained in his automobile while White, armed with a revolver, entered the neighborhood grocery store of Joseph Klein. According to White, Mr. Klein, age 75, resisted, and to subdue his victim he struck him with his fist. However, the injuries, including a fracture of the skull, were such that the medical examiner inferred there were 'blows to the head by blunt instrument'. Mr. Klein died on the day of the attack.

I.

White offered the defense of insanity.

The evidence would well warrant a finding that White was addicted to heroin, taking daily injections. According to White, the drug was effective for nine to ten hours, after which he experienced symptoms of withdrawal. The thesis of the defense was that the holdup was conceived and executed to acquire funds to purchase heroin to satisfy the imperative bodily demand for the drug in such withdrawal stage and hence defendant should be acquitted.

Two specialists in neurology and psychiatry testified for defendant. Dr. Robert S. Garber described the withdrawal symptoms typical of advanced addiction to heroin. During that stage, according to Dr. Garber, the 'physical and emotional symptoms' increase to the point of desperation so that the addict's 'ability to reason things through is not nearly as logical' and hence he is 'quite ill mentally and emotionally.' It 'is probably true, that they labor under a defect of reasoning because of the physical and the emotional symptoms,' and 'My feeling is that he is less able' to know the quality of the act he is doing. He agreed, however, that White 'is not insane in reference to the M'Naghten rule'; that he could distinguish right from wrong, but the withdrawal experience 'made him emotionally ill to a degree that he couldn't help but color his ability to do this.' He added that 'I think he was able to form the intent to commit the robbery, principally because he was desperate enough.'

Dr. Garber testified that drug addiction over a period of years may cause 'a certain amount of mental deterioration.' He did not suggest that any had here occurred. Nor was there testimony that White was 'insane' in any sense as of the time of trial. Dr. Garber said that when the drug is administered 'there's immediate relief of the symptoms and within a short period of time (he) returns to his normal behavior.' It appeared that following his arrest, White was given phenobarbital four or five times a day for a period of three weeks because of his addiction.

Dr. James B. Spradley, for the defense, testified essentially to the same effect. He said that without the drug an addict such as White 'was not able to function properly.' Although the withdrawal 'creates a very distressing and disturbing state of mind * * * it does not distort his orientation. He still knows where he is and what he is doing. His memory is not too badly affected,' but 'I don't think that any of the higher mental processes are evidence to the same degree in the absence of the drug. Thinking, reasoning, judgment, restraint of activities; all of those functions of the brain are minimal' and 'distorted.' Although the addict knows what he is doing, 'the demand for the drug is so great he cannot exercise judgment and restraint on his behavior to the same degree that a normal person could.' He agreed that White 'knew the difference between right and wrong,' knew that what he did was wrong and a violation of the law, and was able to form the intent to rob, but 'These people are no longer free agents. The need of the drug controls them.'

We add that White's testimony, although descriptive of the painful withdrawal symptoms, reveals a clear appreciation and recollection of the crime. He recounted the planning and perpetration of the robbery and attack in detail.

Upon this record the trial court charged that voluntary use of narcotics will not excuse or justify a crime; that if such use results in a mental disease, the disease will receive the same recognition as insanity arising out of any other cause; and that where as here the claim is temporary insanity, the issue is whether 'the accused was laboring under a defect of reason as not to know the nature and quality of the act he was committing, or if he did know it, that he did not know what he was doing was wrong.' Thus the issue went to the jury, in terms of the M'Naghten test applied to a temporary mental derangement.

Defendant urges the restless question whether the M'Naghten rule is a correct approach to the defense of insanity. We fail to see how this case presents the question. We say this because the competing tests all require some form of mental disease or defect and none appears in the record before us.

That M'Naghten requires a showing of mental disease is evident from the statement of its concept, that criminal culpability exists unless 'at the time of the committing of the act, the party accused was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or, if he did know it, that he did not know that he was doing what was wrong.' Mackin v. State, 59 N.J.L. 495, 497, 36 A. 1040, 1041 (E. & A.1896). The irresistible impulse addendum to (or perhaps interpretation of) M'Naghten likewise demands proof of mental disease, Weihofen, Mental Disorder as a Criminal Defense (1954), p. 91; 1 Burdick, Law of Crime (1946), § 213, p. 284; see passim, Annotations, 70 A.L.R. 659 (1931) and 173 A.L.R. 391 (1948), a distinction being drawn between an irresistible impulse and an impulse that just was not resisted. And so also does the New Hampshire rule, recently catapulted into prominence by Durham v. United States, 94 U.S.App.D.C. 228, 214 F.2d 862, 875 (D.C.Cir.1954), annotated in 45 A.L.R.2d 1447 (1956), which would lead to an acquittal when the 'unlawful act was the product of mental disease or mental defect.'

Although the terms mental disease and mental defect in the irresistible impulse and Durham tests themselves call for definition, we see no expansive view of them which would embrace this case. Defendant's psychiatrists do not find any mental illness because of or independent of the use of drugs. At best, we have a case in which drugs were voluntarily taken and in which defendant again had free choice (in the sense of the absence of impairment by disease or disorder of the mind) to turn himself in for treatment at all times when by virtue of the taking of drugs his behavior was restored to 'normal' (to use the psychiatrist's term). Defense counsel were unable to find any authority which would equate the bodily demand for drugs during withdrawal to an insane compulsion which excuses. Nor have we found any unless it be Prather v. Commonwealth, 215 Ky. 714, 287 S.W. 559 (Ct.App.1926), which dealt with a factual picture far more extreme and which in any event seems limited by Millburn v. Commonwealth, 223 Ky. 188, 3 S.W.2d 204 (Ct.App.1928).

The general rule is that the voluntary use of drugs, like the voluntary use of alcohol, is not a defense to murder (in the absence of mental disease resulting therefrom), although in some situations it may be pertinent with respect to the degree of that crime by negating the existence of the specific intent to kill. 1 Wharton, Criminal Law and Procedure (12th ed. 1957), §§ 44--49, pp. 99--116; Weihofen, supra, pp. 124--29. Although voluntary intoxication is thus said not to be an excuse for crime, yet substantial authority supports the view that it may lead to an acquittal when it excludes a required specific intent for the reason that in such circumstances the defendant did not commit the crime charged. Weihofen, supra, p. 179; 1 Wharton, supra, § 44, p. 102; see Warner v. State, 56 N.J.L. 686, 690, 29 A. 505 (E. & A.1894).

Our cases hold that voluntary intoxication is no defense to murder, but where the State's thesis is that the killing was willful, deliberate and premeditated, intoxication which so prostrates the faculties as to prevent the formation of the specific intent to kill, will hold the crime to murder in the second degree. State v. Wolak, 26 N.J. 464, 477, 140 A.2d 385 (1958); State v. Tansimore, 3 N.J. 516, 528, 71 A.2d 169 (1950); State v. Treficanto, 106 N.J.L. 344, 352, 146 A. 313 (E. & A.1929); State v. Mangano, 77 N.J.L. 544, 549, 72 A. 366 (E. & A.1909); Wilson v. State, 60 N.J.L. 171, 184, 37 A. 954, 38 A. 428 (E. & A.1897); Warner v. State, supra, 56 N.J.L. at page 689, 29 A. at page 506. The same rule was applied with respect to the influence of narcotics in State v. Close, 106 N.J.L. 321, 148 A. 764 (E. & A.1930).

In State v. Roach, 119 N.J.L. 488, 490, 197 A. 33, 34 (E. & A.1938), it was held with respect to felony murder that 'In the absence of the interposition of a plea of insanity the state of mind of the defendant was not in issue. Intoxication in such case is not a defense and cannot reduce the crime from first to second...

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