author: Mehler, J. S. C.

text:
    STATE OF NEW JERSEY, PLAINTIFF, v. ADRIAN CAPPON, DEFENDANT.
    Superior Court of New Jersey-Law Division (Criminal)
    Decided December 22, 1971.

      Mr. Joseph P. Lordi, Prosecutor of Essex County, for State (Mr. Michael A. Petrolle, Assistant Prosecutor, appearing).

      Miss Nadine Taub, for defendant (Mr. Stuart Ball, appearing) .
   Mehler, J. S. C.

Defendant, who has been indicted for an alleged violation of N. J. S. A. 2A:148-10(b), has moved to declare the statute unconstitutional on its face and to dismiss the indictment as one founded on a void statute. More specifically, he contends that the statute violates the First and Fourteenth Amendments in that it is vague and overbroad.

N. J. 8. A. 2A:148-10 provides as follows:

Any person who, in public or private, by speech, writing, printing of otherwise, advocates, encourages, justifies, praises or incites:
a. The unlawful burning or destruction of public or private property ; or
b. Assaults upon any of the armed forces of the United States, the national guard, or the police force of this or any other state or of any municipality; or
c. The killing or injuring of any class or body of persons, or of any individual —
Is guilty of a high misdemeanor.

The indictment charges that defendant, or or about July 19, 1910, at the City of Newark, did in public, by speech, advocate or encourage assaults on two named police officers, contrary to N. J. 8. A. 2A:148-10(b).

Defendant contends that the statute is void for vagueness because it is susceptible of sweeping and improper application, furnishes a convenient tool for harsh and discriminatory enforcement by local prosecuting officials against particular groups deemed to merit tbeir displeasure, and implicates Eirst Amendment freedoms, since one must guess what conduct or utterances may be punishable. He argues that a vague statute must be declared void because under it the selection of violators will necessarily be arbitrary and based on the personal view of the arresting officer or the philosophy of the court hearing the case and, touching the area of Eirst Amendment activity, a vague statute such as N. J. S. A. 2A:148-10(b), creates a “chilling effect” upon the exercise of Eirst Amendment freedoms by members of the community who oppose the police or their policy.

Defendant’s claim of. overbreadth is grounded on his view that the statute and indictment sweep far beyond the scope of legitimate governmental regulation into the area of pure speech and thought control. In short, he says that the statute bears the hall mark of a police state. Defendant’s final claim is that a statute with all these defects cannot be saved by judicial reconstruction.

Defendant has submitted no statement of facts. It is the position of his counsel that under any conceivable set of facts the statute must be deemed unconstitutional, and that for the purpose of the motion he accepts as true the State’s statement of facts. According to a statement provided by the State, the incident out of which the indictment arose occurred during a Puerto Eican Day parade on July 19, 1970, in the vicinity of Newark City Hall. It is contended that as the parade was coming to an end a group of young men who had bottles and bricks at their disposal had reached the area in front of Newark City Hall. Defendant, who was standing among them, began to call to the others in the group, and when he said, “Get those mother fuckers,” bricks and bottles began to be hurled at Newark police officers from the area in which defendant was calling, and two police officers were struck by the missiles.

The forerunner of N. J. S. A. 2A :148 — 10, which was identical in substance with it but slightly dissimilar in form, withstood constitutional attack and was held valid by the old Supreme Court and the Court of Errors and Appeals in State v. Quinlan, 86 N. J. L. 120 (Sup. Ct. 1914), and State v. Boyd, 86 N. J. L. 75 (Sup. Ct. 1914), aff’d o. b. 87 N. J. L. 328 (E. & A. 1915)

In Quinlan, where the indictment charged that defendant, in public, by speech, advocated, encouraged and incited persons to injure nonstrikers, it was argued that the indictment was ineffective to charge a crime because the statute on which it was based violated the State Constitution in that the statute was uncertain in describing the offense and was therefore void. It was also contended that only the Legislature had the power to define what shall constitute an offense: that this power could not be delegated to a jury, and that under the statute it was left to the jury to determine what was meant by the words “advocate, encourage, justify, praise, or incite” etc. In Boyd, where the indictments charged that defendant, by speech, advocated, encouraged and incited strikers to destroy private property by means of sabotage, it was argued that the statute, as construed, was unconstitutional as in conflict with the First, Sixth and Fourteenth Amendments.

Since this court is bound by Quinlan and Boyd, and the arguments for the reversal of these precedents are properly presentable to courts higher than this court, Franco v. Davis, 51 N. J. 237, 238 (1965), it would ordinarily follow that they should be made to those courts and not considered by this court. However, because more than 50 years have passed since Quinlan and Boyd were decided, much has since been written on the matter under consideration and defendant’s arguments differ in some respects from those advanced in Quinlan and Boyd, this court does not deem it inappropriate to consider defendant’s contentions.

Defendant’s position and contentions make it plain that he is seeking a declaration that the statute is vague or overly broad on its face and not as construed and applied to him on the facts of this ease. A threshold question which therefore arises is whether defendant may challenge the constitutionality of the statute on its face or whether he is limited to challenging it as construed and applied to him.

Not all speech has First Amendment protection. Samuels v. Mackell, 401 U. S. 66, 91 S. Ct. 764, 27 L. Ed. 2d 688 (1971) (concurring opinion by Douglas, J., 401 U. S. at 74, 91 S. Ct. at 768, 27 L. Ed. 2d at 695).

In DeJonge v. Oregon, 299 U. S. 353, 364, 57 S. Ct. 255, 260, 81 L. Ed. 278, 284 (1937), the court, referring to First Amendment rights, said:

These rights may be abused by using speech or press or assembly in order to incite to violence and crime. The people through their Legislatures may protect themselves against that abuse. But the legislative intervention can find constitutional justification only by dealing with the abuse.

In Brandenburg v. Ohio, 395 U. S. 444, 89 S. Ct. 1827, 23 L. Ed. 2d 430 (1969), the court noted that more recent decisions “have fashioned the principle that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” (395 U. S. at 447, 89 S. Ct. at 1829, 23 L. Ed. 2d at 434).

In State v. Smith, 46 N. J. 510, 517 (1966), cert. den. 385 U. S. 838, 87 S. Ct. 85, 17 L. Ed. 2d 71 (1966), where defendant disrupted a public meeting of the governing body of the City of Trenton and threatened even greater destruction, the court, saying that there must be order at such meeting, held that it “is frivolous to suggest the First Amendment stands in the way of that imperative.”

Boyd held to the same effect as these cases. The court there said:

The fundamental answer to the point raised is that free speech does not mean unbridled license of speech, and that language tending to the violation of the rights of personal security and private property, and toward breaches of the public peace, is an abuse of the right of free speech, for which, by the very constitutional language invoked, the utterer is responsible. Incitement to the commission of a crime is a misdemeanor at common law, whether the crime advocated be actually committed or not. (State v. Quinlan, supra) ; and this (by the weight of authority) whether the crime advocated be a felony or a misdemeanor (12 Cyc. 182, and cases cited). That the light of free speech is not unlimited is well settled. [86 N. J. L. at 78]

When a defendant raises the issues of vagueness, over-breadth or free speech, there is at times a question of standing. Ordinarily, one to whom application of a statute is constitutional many not claim the rights of others who may be affected by the statute in question. This rule was well stated in United States v. Raines, 362 U. S. 17, 21, 80 S. Ct. 519, 522, 4 L. Ed. 2d 524, 529 (1960). There the Supreme Court reversed a District Court holding that a portion of the 1957 Civil Rights Act was unconstitutional merely on the ground that it was suspectible of application beyond the scope permissible under the Fifteenth Amendment. In so doing the court pointed particularly to the long established rule that

* * * one to wliom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations ixx which its application might be unconstitutional. [Citing numerous cases]. In Barrows v. Jackson, 346 U. S. 249, 73 S. Ct. 1031, 97 L. Ed. 1586, this Court developed various reasons for this rule. Very significant is the incontrovertible proposition that it ‘would indeed be xxndesirahle for this Court to consider every conceivable situation which might possibly arise in the application of complex and comprehensive legislation.’ Id., 346 U. S. at page 256, 73 S. Ct. at page 1035. The delicate power of pronouncing an Act of Congress unconstitutional is not to be exercised with reference to hypothetical cases thxxs imagined. The Court further pointed to the fact that a limiting construction could be given to the statute by the court responsible for its construction if an application of doubtful constitutionality were in fact concretely presented. We might add that application of this rule frees the Court not only from unnecessary pronouncement on constitutional issues, but also from premature interpretations of statutes in areas where their constitutional application might be cloudy.

It would appear that the power of a state court to declare a state statute unconstitutional would also be subject to the same limitations.

An exception to the general principles on “standing” exists where the application of these rules would itself have an inhibitory effect on' freedom of speech. Baines, at 22, 80 S. Ct. 519. Although at times invoked by the Supreme Court, this exception has been utilized almost exclusively in a restricted manner and has not become a permissible vehicle for wholesale facial attacks on statutes which may impinge upon free speech rights. Instead, in nearly every instance where such facial attacks have been permitted, the court first discussed the statute involved as applied and construed to the facts of the case. The probable reason for this limitation is that any statute, regardless of how narrowly drawn, which affects First Amendment rights, while concurrently protecting .legitimate governmental interests, may have a potential chilling effect on those rights. Typically, in those instances where facial attacks have been permitted, the court has noted that the trial court and/or the appellate court failed to construe the statute at all or did so in a manner which left the statute constitutionally unacceptable, or that there are so many vague terms as to render the statute incapable of a rational, constitutional construction, or that there is some other special circumstance which has justified striking down a statute or ordinance on its face.

In recent cases the Supreme Court has indicated that in the absence of special circumstances it will not ordinarily reach out to determine whether statutes are unconstitutional on their face, where the statute has neither been construed nor applied to a particular defendant. The court has pointedly refused to consider, without specific application to the facts, the constitutionality of statutes which were alleged to be vague and overbroad and which were alleged to have a chilling effect on First Amendment rights. See Cameron v. Johnson, 390 U. S. 611, 88 S. Ct. 1335, 20 L. Ed. 2d 182 (1968); Golden v. Zwickler, 394 U. S. 103, 89 S. Ct. 956, 22 L. Ed. 2d 113 (1968); Samuels v. Mackell, supra, 401 U. S. 66, 91 S. Ct. 764, 27 L. Ed. 2d 688 (1971); Boyle v. Landry, 401 U. S. 77, 91 S. Ct. 758, 27 L. Ed. 2d 696 (1971).

The court dealt extensively with this issue in Younger v. Harris, 401 U. S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971). There a federal court injunction had been granted against a pending prosecution and all future prosecutions under California’s Criminal Syndicalism Act. The statute was alleged to be vague and overbroad and to create a chilling effect on First Amendment rights. The order granting the injunction was reversed on several related grounds. Unlike Dombrowski v. Pfister, supra, 380 U. S. 479, 85 8. Ct. 1116, 14 L. Ed. 2d 22 (1965), relied on by defendant, in which pending and future prosecutions under Louisiana’s Subversive Activities and Communist Control Law were enjoined because of the chilling effect created by the special circumstances of bad faith prosecutions and harassment by the prosecutor, in Younger there were no such facts or finding. Instead, said the court (401 U. S. at 49, 91 S. Ct. at 753, 27 L. Ed. 2d at 678), “the injury [or chilling effect] that Harris faces is solely That incidental to every criminal proceeding brought lawfully and in good faith.’ ” Continuing, the court said further:

* * * [T]he existence of a ‘chilling effect,’ even in the area of First Amendment rights, has never been considered a sufficient basis, in and of itself, for prohibiting state action. Where a statute does not directly abridge free speech, hut — while regulating a subject wtihin the State’s power • — • tends to have the incidental effect of inhibiting First Amendment rights, it is well settled that the statute can be upheld if the effect on speech is minor in relation to the need for control of the conduct and the lack of alternative means for doing so. [Citations omitted]. Just as the incidental ‘chilling effect’ of such statutes does not automatically render them unconstitutional, so the chilling effect that admittedly can result from the very existence of certain laws on the statute books does not in itself justify prohibiting the State from carrying out the important and necessary task of enforcing these laws against socially harmful conduct that the State believes in good faith to be punishable under its laws and the Constitution. [401 U. S. at 51, 91 S. Ct. at 754, 27 L. Ed. 2d at 679]

The court’s obvious concern with the application and construction of statutes in the state courts indicates that this is relevant to the issue of whether the constitutionality of a statute, even one affecting First Amendment rights, ought to be reached without considering its application to a concrete set of facts. In each of the four reported cases involving N. J. 8. A. 2A:148-10(b) or its forerunner, L. 1908, c. 278, § 1, the indictment arose in a context which involved incitement to imminent lawless action.

Brandenburg, supra, upon which defendant relies directly for the proposition that a state may not punish “advocacy,” provides a useful contrast to the instant case. There defendant was convicted under a statute which prohibited “advocating] * * * the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform.” The charge arose out of a Ku Klux Klan meeting at which highly derogatory, politically oriented remarks were directed towards black and Jewish people in general. No blacks or Jews were at the meeting or in the immediate vicinity. No evidence was produced to show that the words were used as an attempt to instigate or incite a lawless action. “Neither the indictment nor the trial judge’s instructions to the jury in any way refined the statute’s bald definition of the crime in terms of mere advocacy not distinguished from incitement to imminent lawless action,” 395 U. S. at 448, 89 S. Ct. at 1830 and “no construction of the statute by the Ohio courts has brought it within constitutionally permissible limits,” Id. at 449, n. 3, 89 S. Ct. at 1830. Hence, the statute was held unconstitutional for overbreadth because “by its own words and as applied [it] purports to punish mere advocacy.” Id. at 449, 89 S. Ct. at 1830.

Furthermore, the court made it clear in Younger that a narrowing construction of a potentially vague and over-broad statute is permissible.

In the standing cases we allowed attacks on overly broad or vague statutes in the absence of any showing that the defendant’s conduct could not be regulated by some properly drawn statute. But in each of these cases the statute was not merely vague or overly broad ‘on its face’; the statute [was] held to be vague or overly broad as construed and applied to a particular defendant in a particular case. If the statute had been too vague as written hut sufficiently narrow as applied, prosecutions and convictions under it would ordinarily have heen permissible. [401 U. S. at 47, 91 S. Ct. at 752, 27 L. Ed. 2d at 677, n. 4 (emphasis supplied)]

The court further stated that

* * * in Dombrowski itself the Court carefully reaffirmed the principle that even in the direct prosecution in the State’s own courts, a valid narrowing construction can be applied to conduct occurring prior to the date when the narrowing construction was made, in the absence of fair warning problems. [401 U. S. at 51, 91 S. Ct. at 754, 27 L. Ed. 2d at 679]

As has been seen, the State, without running afoul of the First Amendment, has the right to punish one whose advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. N. J. S. A. 2A :148-10 is directed at such persons. Whether the words or conduct of a defendant fall within the ambit of the proscribed conduct must necessarily depend on what was said or done by him and in what context. As the court said in Quinlan, supra, concerning the predecessor of the foregoing statute:

This statute, like every other legislative act, is subject to judicial interpretation. When the occasion arises it will become the province of the court to determine what constitutes in law an ‘incitement’ or as the case may be, under the statute, and for the jury to determine the facts tending to establish a breach of the statute, under the law as defined by the court. [86 N. J. L. at 123]

What was said then is as valid now as it was then. See Brandenburg, supra; Raines, supra; Dennis v. United States, 341 U. S. 494, 71 S. Ct. 857, 95 L. Ed. 2d 1137 (1951); Yates v. United States, 354 U. S. 298, 77 S. Ct. 1064, 1 L. Ed. 2d 1356 (1957). See also Turner v. LaBelle, 251 F. Supp. 443 (D. C. Conn. 1966), wherein the constitutionality of a virtually identical statute was upheld.

Even though the indictment here charges the defendant with advocating or encouraging assaults on named police officers, it should be noted that in the context of the State’s assertions, the advocacy is not that of a mere abstract doctrine but of action to assault police officers which could and should readily be covered by adequate and pertinent instructions to the jury. See Yates v. United States, supra, where the court overturned convictions because the trial judge’s instructions had allowed conviction for mere advocacy unrelated to its tendency to produce forcible action.

A court may not lightly undertake to declare a statute unconstitutional, nor should it consider doing so, where the attack is mounted by one as to whom the statute may Teadily be held to be constitutional.

The power and duty of the judiciary to declare laws unconstitutional is in the final analysis derived from its responsibility' for resolving concrete disputes brought before the courts for decision; * * * the task of analyzing a proposed statute, pinpointing its deficiencies, and requiring correction of these deficiencies before the statute is put into effect, is rarely if ever an appropriate task for the judiciary. [Younger v. Harris, supra, 401 U. S. at 52, 91 S. Ct. at 754, 27 L. Ed. 2d at 680.]

The motion of the defendant is denied.

        E. g., Thornhill v. Alabama, 310 U. S. 88, 60 S. Ct. 736, 84 L. Ed. 1093 (1940) (indictment and charge in terms virtually identical to blanket industrial anti-picketing statute) ; Brandenburg v. Ohio, 395 U. S. 444, 449, n. 3, 89 S. Ct. 1827, 1830, n. 3, 23 L. Ed. 2d 430, 435, n. 3 (1969) (“No construction of the [criminal syndicalism] statute by the Ohio courts has brought it within constitutionally permissible limits.”)

        E. g., Smith v. California, 361 U. S. 147, 80 S. Ct. 215, 4 L. Ed. 2d 205 (1959) (ordinance prohibiting sale of obscene materials construed without a requirement of scienter) ; N.A.A.C.P. v. Button, 371 U. S. 415, 83 S. Ct. 328, 9 L. Ed. 2d 405 (1963) (statute prohibiting improper solicitation of legal business was improperly applied to civil rights group) ; Cramp v. Board of Public Instruction, 368 U. S. 278, 285, 82 S. Ct. 275, 7 L. Ed. 2d 285, 291 (1961) (loyalty oath was hold too vague as construed.) ; Cox v. Louisiana, 379 U. S. 536, 545, 85 S. Ct. 453, 463, 13 L. Ed. 2d 471, 478 (1965) (breach of peace statute construed to apply to peaceful- civil rights picketing. “A statute which upon its face, and as authoritatively construed, is so vague and indefinite as to permit the punishment of the fair use of this opportunity [for free political discussion] is repugnant to the guaranty of liberty contained in the Fourteenth Amendment.”) ; Coates v. Cincinnati, 402 U. S. 611, 91 S. Ct. 1686, 29 L. Ed. 2d 214 (1971) (ordinance prohibiting three or more persons assembling and conducting themselves in annoying manner was held vague and overbroad as construed). Cf. Ashton v. Kentucky, 384 U. S. 195, 86 S. Ct. 1407, 16 L. Ed. 2d 469 (1966) (criminal libel statute construed too broadly at trial. Although the conviction was reversed, a limiting construction in the state courts eliminated the unconstitutional features and saved the statute).

        E. g., Baggett v. Bullitt, 377 U. S. 360, 372, 84 S. Ct. 1316, 1322, 12 L. Ed. 2d 377, 385 (1964) (the court there said that “indulging every presumption of a narrow construction of the provisions of the 1931 [loyalty] oath, consistent, however, with a proper respect for the English language, we cannot say that this oath provides an ascertainable standard of conduct or that it does not require more than a State may command under the guarantees of the First and Fourteenth Amendments.”)

        E. g., Dombroski v. Pfister, 380 U. S. 479, 85 S. Ct. 1116, 14 L. Ed. 2d (1965) (harassment and bad faith prosecutions showed special circumstances) ; Keyishian v. Board of Regents, 385 U. S. 589, 87 S. Ct. 675, 17 L. Ed. 2d 629 (3967) (teacher loyalty oath found vague and overbroad without awaiting a state court construction, where those challenging the oath would have faced complex administrative machinery and loss of jobs in the attempt to get a case into the state judicial system).

        State v. Boyd, supra, 86 N. J. L. 75 (Sup. Ct. 1914), aff’d 87 W. J. L. 328 (E. & A. 1915) ; State v. Quinlan, supra, 86 N. J. L. 120 (Sup. Ct. 1914), aff’d 87 N. J. L. 333 (E. & A. 1915) ; State v. Hopson, 109 N. J. Super. 382 (Law Div. 1970) ; State v. Cooper, 113 N. J. Super. 34 (App. Div. 1971).


source: Caselaw Access Project

author: Lane, J. A. D.

license: Public Domain

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. KENNETH DONALD ROUNDTREE, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued December 14, 1971
    Decided December 22, 1971.

      Before Judges Kilkenny, Labbecque and Lane.

      Miss Cynthia M. Jacob, Deputy Public Defender, argued the cause for appellant (Mr. Stanley C. Van Ness, Public Defender, attorney; Miss Jacob, of counsel and on the brief).

      Mr. Richard Qalex, Assistant Prosecutor, argued the cause for respondent (Mr. John 8. Kuhlthau, Middlesex County Prosecutor; Mr! Qalex, on the brief).
   The opinion of the court was delivered by

Lane, J. A. D.

Defendant appeals from a judgment of conviction following a jury trial of possession and sale of heroin on June 25, 1968. He also appeals from a judgment of conviction based upon his plea of guilty to a charge of possession of heroin on August 28, 1968. He was given concurrent sentences to the New Jersey Reformatory (now Youth Correctional Institution Complex). The sentences were suspended, and he was placed on probation for four years on condition that he seek treatment.

Before trial defendant moved to dismiss the indictment on the ground that he was denied due process of law because of the time lapse between the dates of the alleged offenses and his subsequent arrest on October 31, 1968. The evidence developed on the motion is fully set forth in the opinion of the trial court. State v. Rountree, 106 N. J. Super. 135 (Cty. Ct. 1969).

Defendant argues that: (1) denial of his pretrial motion was error; (2) he was denied a fair trial because the trial court refused to allow cross-examination of the State’s witnesses concerning an informer and the informer’s involvement in the June 25, 1968 transaction; (3) the trial court should have required the State to disclose the identity of the informer; (4) the trial court erred in denying a motion for a mistrial based upon the failure of the State to give notice of the existence of an informer; (5) the trial court erred in refusing to charge the jury on entrapment as requested by defendant.

At the trial State Trooper Victor Irizarry testified that on June 25, 1968 he was an undercover investigator participating in a narcotics investigation in the New Brunswick area. He had assumed the dress and style of life of narcotics addicts and insinuated himself into their society with the help of an informer. On the day in question he and the informer met the defendant and one Van Anglen, who was also indicted as a result of the undercover investigation, at the Golden Hugget Tavern. Irizarry initially testified that he told defendant and Van Anglen that he wanted to purchase narcotics and inquired where he could get them. Van Anglen replied that he knew where “a nice thing” could he obtained. Irizzary, the informer, Van Anglen and defendant drove to 48 John Street, New Brunswick. Defendant left the automobile to go in and purchase the narcotics. Irizarry gave him a $10 bill and testified that he asked defendant to bring the seller out. When defendant returned with the narcotics, Irizarry and the other three went back to the Golden Nugget Tavern where defendant and Yan Anglen were dropped off, at which time defendant received $2 for taking Irizarry and the informer to make the purchase.

At the beginning of cross-examination Irizarry was asked, “At what stage in this offense that you are here talking about that you here allege did you come in contact with this informer?” The prosecutor objected to “any cross-examination concerning any informant.” The ruling of the trial court precluded any cross-examination concerning the informer. The trial court would not permit any questions “which may generally or inferentially raise a possible identity of this informer * * * anything about him which may in any way get into an identity situation which, in effect, I think, precludes you from saying practically anything about him other than the fact that he was in the car and where he may have been seated in the car and so forth * * * any question that would elicit precisely what the informer said as opposed to what Detective Irizarry said in the conversation with defendant and Yan Anglen * * * any questioning of this witness as to any conversation which might have happened as far as the informer is concerned,” and any “question whatsoever about the informant and that goes not only to identity but also to any part that this informant may have had in the entire transaction that is here in question.”

Trooper Irizarry had submittted to his superiors a handwritten report of the transaction (Crip refers to Yan Anglen; D. J. refers to the informer) :

Met Roundtree & “Crip” in tlie Golden Nugget Tavern on Albany. D.J. had conversion with them. “Crip” said he was high on some “nice stuff.” D.J. said we were looking- to “cop.” “Crip” said he could take us to the man to “cop.” We entered the undercover veh. which was parked in front of the tavern. “Crip” directed us to 48 Johns St. Wo parked in front. AVe spoke & Roundtree asked how much was desired. I said 2 bags. He said give me the money & I’ll go in and get it. ll.J. said tell the dude to come out, Round-tree said give me the money because the guy don’t know you. I gaye Roundtree a <$10 bill. He left & returned in a short while. “Crip” left the veh. & returned with a bottle of soda (orange). He got in & Roundtree got in & handed me 2 small glassine envelopes, containing a white powder. AAre drove back to the Golden Nugget tavern. D.J. gave Roundtree $2 for his trouble. “Crip” said he had shot up 2 bags & was on the “nod,” the stuff was real dynamite. “Crip” left the veh. AVe left the area.

This hanchvrittten report was used by Trooper Irizarry on direct examination. Defense counsel objected to its use. She had demanded and been supplied with a copy of the official typewritten formal police report hut had not been supplied with Irizarry’s handwritten report. The formal report made no mention of an informer.

Defendant’s attorney made several motions grounded on her inability to cross-examine Trooper Irizarry meaningfully because of the trial court’s ruling. She further moved for a mistrial on the basis of surprise because the State had not indicated in answering interrogatories that there was an informer.

A motion for dismissal at the close of the State’s case was denied. Defendant testified out of the presence of the jury concerning his continued lack of memory. The trial court found that defendant had no additional recollection of the facts since his testimony on the pretrial motion.

On defendant’s case the offer of Irizarry’s handwritten notes was made to which an objection was sustained. Defendant did not testify in his own behalf.

The court Avas requested by defendant to charge on entrapment which request was denied. Following the jury verdict of guilty a motion for a new trial was made on various grounds which was denied.

I

Defendant argues that where there is such a delay between the occurrence of the offense charged and the arrest as to result in defendant’s inability to recall what he had been doing during the time the alleged offense occurred, the only issue is whether the delay was unreasonable and the justification for the delay is irrelevant. Defendant argues that the four-month delay in question was unreasonable since it deprived him of a bona fide defense and as such deprived him of due process of law under the circumstances relying primarily on Ross v United States, 131 U. S. App. D. C. 233, 349 F. 2d 310 (1965), and Woody v. United States, 135 U. S. App. D. C. 193, 370 F. 2d 314 (1966).

Heither of these cases supports defendant’s position that the four-month delay was unreasonable. Further, they do not support defendant’s argument that justification for delay is irrelevant.

We agree generally with the approach of the trial court. State v. Rountree, supra, 106 N. J. Super, at 150-151. However, in our opinion the problem presented is a denial of a defendant’s right to due process under the Fourteenth Amendment. State v. Brennan, 115 N. J. Super. 400, 404 (App. Div. 1971), should not be read to hold that in the face of a defendant’s contention of deprivation of due process under the Fourteenth Amendment the controlling factor is the statute of limitations.

The trial court in its discussion places the burden on the State to establish beyond a reasonable doubt the validity of a claim of necessity for a pre-arrest delay once a defendant has made a showing of prejudice. 106 N. J. Super, at 150 (6). This is erroneous.

After the decision of the trial court on the motion we decided State v. Rodriguez, 113 N. J. Super. 513 (App. Div. 1970). We held there that the defendant had the burden of establishing both “that (1) there was no legitimate reason for the delay and (3) he was prejudiced thereby.” 112 N. J. Super, at 515. The ultimate burden of persuasion on both issues rests upon the defendant. The State, however, is obligated to go forward with the evidence showing that there was a legitimate reason for the delay once the defendant has shown prejudice.

There is substantial credible evidence to support the trial court’s finding that defendant failed to show prejudice “of sufficient magnitude or so offensive to his constitutional rights as to require dismissal of the charges.” 106 N. J. Super, at 155-156. A mere claim of general inability to reconstruct the events of the period in question is insufficient to establish the requisite prejudice as a basis for a reversal or dismissal of the charge. Particular circumstances resulting from the delay other than a general inability to recollect or reconstruct events on the day of the alleged offense must be shown. United States v. Golden, 436 F. 2d 941, 943 (8 Cir. 1971); United States v. Baker, 434 F. 2d 968, 970 (4 Cir. 1970); United States v. Napue, 401 F. 2d 107, 114 (7 Cir. 1968), cert. den. 393 U. S. 1024, 89 S. Ct. 634, 31 L. Ed. 2d 568 (1969); Dancy v. United States, 139 U. S. App. D. C. 413, 395 F. 2d 636, 638 (1968); Woody v. United States, supra, 370 F. 2d at 218 and at 219; United States v. Hammond, 360 F. 2d 688, 689 (3 Cir.), cert. den. 385 U. S. 918, 87 S. Ct. 337, 17 L. Ed. 2d 142 (1966); Powell v. United States, 122 U. S. App. D. C. 229, 352 F. 2d 705, 708 (1965).

We affirm the denial of defendant’s pretrial motion.

II

We will deal at the same time with defendant’s argument that he was denied a fair trial because the trial court refused to allow cross-examination concerning an informer and his argument that the State should have been required to disclose the identity of the informer.

The State has a statutory privilege to withhold from disclosure the identity of persons furnishing information to law enforcement officers concerning the commission of crime. State v. Infante, 116 N. J. Super. 252, 256 (App. Div. 1971); N. J. S. A. 2A:84A-28. See also Roviaro v. United States, 353 U. S. 53, 59, 77 S. Ct. 623, 627, 1 L. Ed. 2d 639 (1957). See^ generally, Annotation, “Accused’s right to, and prosecution’s privilege against, disclosure of identity of informer,” 76 A. L. R. 2d 262 (1961); 8 Wigmore, Evidence (McNaughton rev. 1961), § 2374 at 761.

The purpose of the privilege is to encourage and secure a flow of vital information which can be had only upon a confidential basis. Recognizing the obligation of citizens to communicate their knowledge of criminal offenses to law enforcement officers the privilege encourages the citizens to perform this obligation by preserving their anonymity. Roviaro v. United States, supra, 353 U. S. at 59, 77 S. Ct. 623; State v. Oliver, 50 N. J. 39, 42 (1967).

Limited by its underlying purpose, the scope of the privilege does not apply to the contents of a communication if the disclosure will not tend to reveal the identity of the informer. Roviaro v. United States, supra, 353 U. S. at 60, 77 S. Ct. 623. See also Mitchell v. Bass, 252 F. 2d 513, 516 (8 Cir. 1958); Foltz v. Moore McCormack Lines, 189 F. 2d 537, 540 (2 Cir.), cert. den. 342 U. S. 871, 72 S. Ct. 106, 96 L. Ed. 655 (1951); 8 Wigmore, Evidence, supra, at 765. But see In re Quarles, 158 U. S. 532, 535-536, 15 S. Ct. 959, 961, 39 L. Ed. 1080 (1895); Vogel v. Gruaz, 110 U. S. 311, 315, 4 S. Ct. 12, 14, 28 L. Ed. 158 (1884).

Clearly the trial court erred in extending the scope of the privilege to cover anything that the informer might have said or done during the time that criminal activity was alleged to have taken place. The participation of the informer was certainly relevant not only on the issue of Trooper Irizarry’s credibility but also on the issue of possible entrapment. Although Trooper Irizarry’s notes written at the time stated that the informer initiated the transaction, he indicated in his direct testimony that the transaction was initiated by him. In view of the fact that defendant could not remember what he had been doing on the day of the alleged offense, the fact that the informer was present at the time of the offense, and the fact that Trooper Irizarry’s handwritten notes gave clear indication that the informer was an actor in the transaction, the limitation on cross-examination was prejudicial error for which the judgment must be reversed.

Since there will be a retrial, we must deal with defendant’s argument that the State should be required to disclose the identity of the informer.

The privilege to withhold the identity of an informer is not absolute. Disclosure is normally compelled where the informer was an actual participant of the crime for which the defendant is being charged. State v. Infante, supra, 116 N. J. Super, at 257. Cf. State v. Oliver, supra, 50 N. J. at 43 and at 45. See Roviaro v. United States, supra, 353 U. S. 53, 77 S. Ct. 623 (sale by informer, observed by agent); United States v. Barnett, 418 F. 2d 309 (6 Cir. 1969) (agent and informer together transacted sale of whiskey from defendant); United States v. Lloyd, 400 F. 2d 414 (6 Cir. 1968) (defendant sold drugs to informer, agents observed, there had been a three-month delay between offense and arrest, and defendant alleged lack of memory); Lopez-Hernandez v. United States, 394 F. 2d 820 (9 Cir. 1968) (informer and agent met with defendant at border and transacted sale of heroin); Portomene v. United States, 221 F. 2d 582 (5 Cir. 1955) (defendant sold narcotics to informer, who was only other participant) ; United States v. Conforti, 200 F. 2d 365 (7 Cir. 1952), cert. den. 345 U. S. 925, 73 S. Ct. 782, 97 L. Ed. 1356 (1953) (defendant sold and delivered counterfeit money to informer, who was only other participant); Sorrentino v. United States, 163 F. 2d 627 (9 Cir. 1947) (defendant sold opium to informer, who was only other participant); State v. Godwin, 106 Ariz. 252, 475 P. 2d 236 (Sup. Ct. 1970) (informer was seated with an officer when defendant handed him a lighted marijuana cigarette, and the sole direct witness was the officer); Eleazer v. Su perior Court, 1 Cal. 3d 847, 83 Cal. Rptr. 586, 464 P. 2d 42 (Sup. Ct. 1970) (informer, observed by police, purchased drugs from defendant); State v. Davis, 450 S. W. 2d 168 (Mo. Sup. Ct. 1970) (informer supplied defendant with drugs, introduced him to police-purchaser, and witnessed the transaction).

State v. Oliver, supra, 50 N. J. 39; State v. Infante, supra, 116 N. J. Super. 252; and State v. Booker, 86 N. J. Super. 175 (App. Div. 1965), are inapposite. Here it is clear from Trooper Irizarry’s handwritten notes that the informer did far more than merely set up or witness the meeting between Trooper Irizarry and defendant. The informer was an active participant bringing about the violation. According to the notes the informer told defendant and Yan Anglen that they, the informer and Irizarry, were “looking to cop.” At the time defendant allegedly left the automobile to obtain the narcotics the informer had some conversation with him in an attempt to have the seller reveal himself. After defendant completed the sale, it was the informer who paid him $2. The informer was an active participant in the transaction and a material witness on the issue of defendant’s guilt. As such his identity should have been disclosed. The failure to require disclosure under the circumstances of this case was prejudicial error, a denial of fundamental fairness.

Defendant further argues that the disclosure of the identity of the informer was necessary to assist him in developing the facts of his defense of entrapment. Since we have held that the informer’s identity must be disclosed, we need not discuss this argument.

Ill

Defendant argues that the trial court erred in denying his motion for a mistrial “based, first, upon surprise resulting from the State’s failure to provide the defense with notice of the existence of an informer, pursuant to an order of discovery, and, second, upon the prosecution’s solemn obligation under Brady v. Maryland, 373 U. S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963) to provide the defense with evidence or witnesses that could aid the defense cause.”

Pursuant to a consent order for discovery, defendant sought from the State the names and addresses of persons known to have relevant knowledge or information concerning the crime. The defendant argues that the failure to list the informer as “John Doe — Address and name privileged” should have required a mistrial on the grounds of surprise and on grounds of due process.

The discovery rules applicable at the time of the consent order allowed discovery of the names and addresses of any persons who may have relevant knowledge or information. The State could have obtained a protective order to maintain secrecy of any informer. R. R. 3:5-ll(c) (i); R. R. 3:5-11 (g)(i) (now R. 3:13 — 3(c)(1); R. 3:13-3(g)(1)).

The State concedes that it should have disclosed the existence of the informer. In view of the fact that the judgment of conviction is being reversed and the matter remanded for a new trial, we need not decide whether the failure to disclose was harmful error that by itself would result in a reversal.

IV

Finally, defendant argues that the trial court committed reversible error in refusing to charge the jury as to entrapment in accordance with the requests submitted.

Suffice it to say that under the evidence as it was at the time the case was given to the jury, the trial court correctly refused so to charge. At the retrial a request for such a charge will be governed by the evidence as it is at the time under the law as set forth in State v. Dennis, 43 N. J. 418 (1964), and State v. Dolce, 41 N. J. 422 (1964).

The order denying defendant’s pretrial motion to dismiss the complaint is affirmed. The judgment of conviction of the August 28, 1968 offense (fourth count of Indictment No. 183-68) is affirmed. The judgment of conviction of the June 25, 1968 offenses (first and second counts of Indictment No. 183-68) is reversed, and the matter is remanded for further proceedings consistent with this opinion.


author: Per Curiam.

text:
    MARY VITOLO, PLAINTIFF-APPELLANT, v. ST. PETER’S CHURCH, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued December 14, 1971
    Decided January 3, 1972.
    Before Judges Kilkenny, Labrecque and Lane.

      Mr. Barry I. Siegel argued the cause for appellant.

      Mr. Edward E. Kuebler argued the cause for respondent.

      Mr. George F. Kugler, Jr., Attorney General of New Jersey, filed a statement in lieu of brief {Mr. Stephen Shill-man, Assistant Attorney General, of counsel; Mr. Kenneth M. Olex, Deputy Attorney General, on the brief).
   Per Curiam.

Plaintiff Mary Vitolo appeals from an order (1) denying her motion for summary judgment on the issue of charitable immunity, and (2) granting summary judgment in favor of defendant on the ground that plaintiff’s cause of action was barred by N. J. 8. A. 2A:53A-7.

The foregoing statute provides as follows:

No nonprofit corporation, society or association organized exclusively for religious, charitable, educational or hospital purposes shall, except as is hereinafter set forth, be liable to respond in damages to any person who shall suffer damage from the negligence of any agent or servant of such corporation, society or association, where such person is a beneficiary, to whatever degree, of the works of such nonprofit corporation, society or association; provided, however, that such immunity from liability shall not extend to any person who shall suffer damage from the negligence of such corporation, society, or association or of its agents or servants where such person is one unconcerned in and unrelated to and outside of the benefactions of such corporation, society or association; but nothing herein contained shall be deemed to exempt the said agent or servant individually from their liability for any such negligence.

N. J. 8. A. 2A:53A-10 provides that the act is remedial legislation and is to be liberally construed.

Plaintiff raises three points as follows: (1) N. J. 8. A. 2A :53A-7 is unconstitutional as a violation of the equal protection clause of the Fourteenth Amendment to the United States Constitution; (2) since N. J. 8. A. 2A:53A — 7 does not prohibit the entry of a judgment against the enumerated corporations and associations, if such corporations and associations have liability insurance policies, these policies should be available to the injured person; and (3) N. J. 8. A. 2A:53A-7 reinstated a doctrine which is anachronistic, against the weight of modern authority, and against public policy, and this doctrine should be overruled.

Finding the points raised by plaintiff to be without merit, we affirm the judgment below. It is conceded that plaintiff was a parishioner of defendant church and that she sustained her injuries while leaving the church after attending ing Sunday religious services. As such she was a beneficiary of the “works” of the church and came within the ambit of N. J. S. A. 2A:53A-7. Cf. Anasiewicz v. Sacred Heart Church, 74 N. J. Super. 532 (App. Div. 1962), certif. den. 38 N. J. 305 (1962). In Makar v. St. Nicholas, etc., Church, 78 N. J. Super. 1, 6-8 (App. Div. 1963), it was held that that statute did not violate the equal protection clause of the Eourteenth Amendment to the United States Constitution.

Since the statute provides that no nonprofit corporation, such as was defendant here, “shall be liable to respond in damages” to a beneficiary of its works, the fact that it may have insurance coverage confers no additional right upon an injured beneficiary. Cf. Stoolman v. Camden County Council Boy Scouts, 77 N. J. Super. 129 (Law Div. 1962).

While the arguments advanced in support of the abolition of charitable immunity are many and weighty, see Collopy v. Newark Eye and Ear Infirmary, 27 N. J. 29 (1958) ; Abernathy v. Sisters of St. Mary's, 446 S. W. 2d 599 (Mo. Sup. Ct. 1969), such arguments were available for the Legislature’s consideration at the time of the enactment of N. J. S. A. 2A:53A-7. In Collopy, 27 N. J. at 41, it was made clear that it was open to the Legislature to fix, within constitutional limits, the State’s policy as to charitable immunity from tort responsibilities. Since the constitutionality of the resultant legislation has been upheld, we are left with no alternative but to affirm.

Affirmed.

No costs.


author: Conford, P. J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. ALFRED KELLY, DEFENDANY-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued September 21, 1971
    Decided January 7, 1972.

      Before Judges Contokd, Matthews and Ekitz.

      Mr. Bruno L. Leopizzi argued the cause for appellant.

      Mr. Harry Smith, Assistant Prosecutor, argued the cause for respondent (Mr. Joseph D. J. Gourley, Passaic County Prosecutor, attorney).
   The opinion of the Court was delivered by

Conford, P. J. A. D.

Defendant Alfred Kelfy, about 64 at the time of the homicide on July 24, 1969, shot to death Adolph Tober, then in his early forties, in the courtyard of the garden apartment house in Paterson of which Tober had been a co-owner since early 1967 and defendant and Ms wife tenants for several years.

Defendant is a college graduate and a veteran of military service as a United States naval officer in World War II. He had had a career in various employments of moderate compensation and had once failed in a business of his own. At the time of the events here involved he was a new and used car salesman earning under $10,000 per year. He lived with his wife, then about 56, but had no children.

The decedent actively managed the apartment building. He had frequent difficulties with defendant. The latter complained about other tenants he considered undesirable; there were minor matters relating to maintenance of the property. During one confrontation, according to defendant, Tober twisted his arm and said “You’re an old man and I could kill you with one hand.” About a month prior to July 24 defendant overheard an altercation between Tober and another tenant, Mrs. Schultz, who was friendly with the Kellys, and attempted to intercede. There is evidence that Tober told defendant to move if he didn’t like it there, and threatened to evict him; that defendant rushed to strike Tober but was restrained by his wife; that a few minutes thereafter Tober’s partner, De Marco, visited defendant to return his fallen eyeglasses and was told by the latter: “Tell him [Tober] to stay away from me — I was taught how to kill these N"azis.” Defendant testified, admitting the episode, and that he later sent a letter of apology to Tober, fearing eviction, but he denied use of the language about Nazis.

Defendant, corroborated by his wife, testified that Tober, a married man,1 had made amorous advances toward Mrs. Kelly and been rebuffed by her. Mrs. Schultz said she had had similar experiences and had told the Kellys. Defendant testified that on the morning of July 24 (a Thursday) while at work he received a phone call from Tober who told him he panted to see him over the weekend “to settle their differences once and for all.” The previous evening Mrs. Schultz had showed defendant a notice to herself and her husband from Tober demanding an increase in rent or termination of tenancy, and asked him to obtain legal advice about it for her. Defendant said he left work for home about 8 :30 p.m. on the 24th. He took one drink from a bottle of Scotch he kept in the car (his wife was a “teetotaler” who objected to his keeping liquor at home).

Bn route home defendant was bumped in the rear by another car and was able to make a notation of the license number. When he arrived home he saw a ear parked at the curb with a license number almost identical with his notation and of the same color as that which had bumped his. Tober came over and said it was his ear. An argument ensued over defendant’s announced intention to report Tober as a “hit-and-run” driver. Tober allegedly grabbed defendant’s arm, said he’d be the “sorriest man” in the world if he did so, and implied a threat of eviction. Some aspects of this episode tend to be corroborated by two independent witnesses passing by at the time, as well as by Mrs. Schultz.

Mrs. Schultz testified she saw Tober and defendant talking together on the occasion just mentioned and heard Tober threaten defendant with eviction. Tober left in his car and defendant walked to the house entrance. He seemed “very unstable”; he wanted to talk with her but “couldn’t get anything out.” He stumbled on the way to his apartment. He couldn’t open the door with his key, and she helped him. In his testimony defendant admitted these facts but denied he was intoxicated. (At trial Mrs. Schultz said she didn’t then think defendant had been intoxicated but admitted she entertained that opinion on July 24 and had so informed the police after the shooting.)

Defendant testified he went up to his apartment (his wife was not there), took off his clothes and put on his pajamas to relax. He received a phone call from Tober who threatened to come back, rape his wife and kill both of them. He tried to phone the police but couldn’t. He became concerned over finding his wife. He has only spasmodic memory for subsequent events. He picked up a loaded gun he kept in his bedroom which he had not touched since buying it two years previously. He remembers being outside the building, firing the gun and hearing two clicks. He doesn’t recall seeing or talking to anyone. He remembers going back to the apartment and seeing a police officer there who asked for the gun. He remembers being fingerprinted at the police station but not being questioned by the police.

The State’s witnesses established that defendant emerged from the building and walked a few feet past Tober, who was conversing with a tenant. Defendant was heard to say, “I hate him —• I hate that guy — I want to kill him.” He seemed in a daze, nervous, “looked like he was in a trance.” He turned around and shot Tober in the leg. As the latter bent over, crying out, “Kelly, you crazy s.-o.-b.-, you bastard,” defendant shot him twice more, exclaiming, according to one witness, “Take this, you s.-o.-b.-.” Tober was dead on arrival at the hospital. After the shooting defendant was “quiet, calm as if he was frozen.” Some of the witnesses thought defendant was under the influence of liquor. He was dishevelled, without underwear or socks, his shirt misbuttoned (ordinarily he was neat and orderly in his dress).

Defendant’s appearance to the arresting officers was as of a “man in a fog,” with eyes “glazed.” He gave off a “slight odor of alcohol.” He was warned of his rights by the deputy police chief at the scene of the killing and responded, “I know, I know, I shot him.” While being interrogated at the police station he told the examining officer, “I fully understand what you have told me.” The officer didn’t think he was “drunk,” but “dazed.” As they conversed, the daze appeared to clear up. His speech was coherent. He told the officer he and Tober had had arguments the past few months.

Defendant produced three medical experts at the trial. Each testified, on the basis of examination of the defendant and a hypothetical question, that defendant at the time of the crime had a, mental disease or disorder which made him unable to appreciate the nature, quality or consequences of his act. Two of them also concluded he could not then differentiate between right and wrong. One of them, Dr. Eraulo, vacillated on that point. Defendant never manifested, any mental disorder or tendency toward violence before this incident. He was fully oriented when examined by the experts months alter the event. But Doctor Eraulo found him without appropriate “affect” for what he had done and his current predicament.

Dr. Markowitz, a young neurologist with limited training in psychiatry, gave the opinion that defendant at the time of the shooting was in a fugue state, not able to integrate events, acting automatically, not functioning on the normal basis of receiving and organizing information and determining therefrom how to act, and with accompanying amnesia for events.

Dr. Fraulo, a psychiatrist, testified defendant had developed paranoid ideas about Tober which took on delusional form. He had a pre-morbid personality, of obsessive, compulsive character, and an impaired “ego function.” At the time of the killing he was in a “dissociated state,” where the unconscious takes over from the conscious.

Dr. Berman, a veteran psychiatrist, testified that defendant developed a paranoid condition with the fixation that Tober was his tormentor. By the time of the shooting he had gone into a fugue state, a condition of disassociation, with “separation” between consciousness, awareness and control. There followed “patches” of memory of the events. Consumption of liquor was not a significant factor in inducing the destructive conduct. The fugue state began when he received the phone call from Tober, and recovery therefrom occurred at the police station.

Two psychiatrists testifying for the State, Dr. Brancale and Dr. Campean, on the basis of an extended interview with and examination of defendant, were of the opinion that at the time of the incidents on July 24, 1971 defendant was not suffering from a psychotic disorder, could distinguish right from wrong, and knew the nature and quality of his acts.

I

During the voir dire of the jury panel defendant’s counsel made the following request of the court:

If your Honor please, I respectfully request that the Court inquire of the prospective jurors, as to whether or not, if the defense of insanity were advanced by the' defendant, do they have any feeling about that, firstly. And, would they accept • the defense if the defendant proved it by a preponderance of the evidence, that the defendant did lack the mental capacity to form an intent, or did lack mental capacity to distinguish right from wrong. Would they accept it as a defense, or do they have feelings against this type of defense.

After argument, the court ruled in the negative, saying :

I am of the opinion that the voir dire that I am conducting, and in the manner in which I am conducting it is sufficient to alert the jurors that they are to accept the law from the Court. And, that they are the sole judges of the facts, and were I to keep stressing the insanity defense, that is intended to be interposed, would be giving the defendant more than he is entitled to on the voir dire. Both sides are entitled to a neutral jury and by stressing the defense at this point seems to me that I would be tipping the scales of justice way beyond that which is necessary. Therefore, the application will be denied.

Two renewals of the request during the progress of the voir dire were also denied.

The voir dire in this case was conducted by the court, as required by B. 1:8-3(a) and the philosophy of State v. Manley, 54 N. J. 359 (1969), a decision which marked the end in this State of the extended, time-consuming, argumentative and indoctrinating practice of examination of the veniremen by attorneys which had long held sway here as well as elsewhere. Ibid., passim. Manley evidences a "remedial movement * * * toward adoption of methods designed to restore the fundamental basis for preliminary questioning, i. e., an expedient selection of a fair and impartial jury, one that will decide the case fairly under the evidence presented and the instructions of the court.” Manley, at 380.

It is at once apparent that the request here denied goes to inquiry concerning the jurors’ attitude toward a defense. Logically, inquiry on such a matter would be difficult to differentiate from inquiry as to jurors’ attitudes concerning many other rules of substantive or adjective law which might be involved in the trial. Short of reposing requests for such inquiries in the strict discretion of the trial judge, there is some risk of subverting the objective of Manley to eliminate “efforts to indoctrinate, to persuade, to instruct by favorable explanation of legal principles that may or may not be involved, to lecture on the law and the facts and the relation of one to the other * * *” and to prohibit “the hypothetical question intended and so framed as to commit or pledge jurors to a point of view or a result before they have heard any evidence, argument of counsel or instructions of the court.” Manley, at 280-281.

While there is no precedent in this State, under the preManley practice, concerning the right to question veniremen as to attitude toward insanity as a defense, some significance may perhaps be drawn from the circumstance that in Manley the court quoted with approval (54 N. J. at 286) from Commonwealth v. Calhoun, 238 Pa. 474, 86 A. 472, 475 (Sup. Ct. 1913), wherein a closely related question was involved. That question and its resolution by the Calhoun court are indicated by this excerpt from the opinion:

The first two assignments of error concern the examination of proposed jurors on their voir dire. Counsel for the defendant stated the common-law definition of murder to one of the jurors, and then asked, ‘What do you understand by the words, “a person of sound memory and discretion” f Another was asked, if the testimony satisfied him that the accused was insane at the time of the crime, and had committed the deed while under the control of an irresistible imI'ulse to take life, ‘Would you deem him legally responsible for his deed?’ The trial judge was clearly right in refusing to allow either of these questions. Counsel may not examine the proposed juror upon his understanding of the law, and that is what these interrogations amounted to. One called to the book as a juror may be asked the broad question whether, if sworn as a trier, he would accept and act upon the law as stated to him by the court; and this is as far as the examination on tho voir dire may properly proceed along that line. [86 Á. at 474-475]

The segment of the foregoing excerpt approved in Manley is the last sentence thereof. That approval was coupled with approval of rulings in other decisions excluding questions relating to presumption of innocence, character of proof necessary in a criminal case and reasonable doubt. 54 N. J. at 286.

While the question excluded in Commonwealth v. Calhoun, supra, was particularly objectionable as seeking the venireman’s probable verdict on a given hypothesis of fact —• a tactic universally disapproved — other Pennsylvania Supreme Court decisions have sustained the refusal to permit inquiry as to “prejudice” or “conscientious scruples” against insanity as a defense. Commonwealth v. Barner, 199 Pa. 335, 49 A. 60 (1901); Commonwealth v. Zoltowski, 246 Pa. 410, 92 A. 496 (-1914); cf. Commonwealth v. Moon, 389 Pa. 304, 132 A. 2d 224 (1957).

The courts of Massachusetts also permit exclusion of questions addressed to bias against the defense of insanity. Commonwealth v. Ricard,, 355 Mass. 509, 246 N. E. 2d 433, 434 (Sup. Jud. Ct. 1969), is illustrative. The questions there disallowed were:

Do you believe in psychiatry? Are you aware of any bias or prejudice that would prevent you from believing or accepting testimony given by a psychiatrist as to defendant’s mental condition? Do you believe that a person can be insane? If you believe that the defendant is presently sane, would this prevent you, after hearing all of the evidence and the law as given you by the court, from being able to find the defendant insane at the time of the homicide? Are you aware of any bias or prejudice that would prevent you after hearing all the evidence and the law as given you by the court from finding the defendant not guilty of murder in the first degree by reason of insanity?

The Massachusetts court held that the permissibility of such questions lay in the discretion of the trial judge. It explained:

It may not be assumed that there is a general prejudice against psychiatrists and a general rejection of the concept of irresponsibility because of mental illness or defect. There appears slight chance that pre-trial inquiry in respect of the defence of criminal irresponsibility would tend to assure a fairer and more competent jury to judge that issue. When the jurors confront it they will have heard for the first time what the test is (that is, not ‘insanity,’ but that ‘a person is not responsible ior criminal conduct if at the time as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality [wrongfulness] of liis conduct or to conform his conduct to the requirements of law. Commonwealth v. McHoul, 352 Mass. 344, 540-547, 226 N. E. 2d 556, 557-558). They will have heard the expert and other testimony. Answers to pretrial questions as to views about insanity and about experts in mental illness would give a very uncertain indication of what the state of mind of the jurors would be after hearing the evidence and proper instructions.
To attempt a pre-trial appraisal that would be significant, the judge would have needed to explain the test to be applied; he would have been obliged in effect to give much of the substance necessary and appropriate in instructions after the evidence veas in. This, as a practical matter, would have meant a lecture to the entire venire based on hypothetical facts. Even then there would be absent that understanding that comes from hearing the testimony on direct and cross-examination of the psychiatric experts.
Our rule is founded in the belief that a fair trial is afforded by a jury of twelve citizens impartial as to the persons involved and unprejudiced and uncommitted as to the defendants’ guilt or past misconduct. Every individual has impressions and beliefs, likes and dislikes. That those of a particular juror will not be determinative or dominant is reasonably assured by the requirement of a unanimous verdict, the awesome responsibility of the (ask assigned, the dignity and solemnity of the courtroom where the task is performed, and (he careful instructions of the judge not only as to the law to be applied, but also and importantly as to the determination of guilt or innocence on the evidence, free of all extraneous considerations.
A fair jury is one that represents a cross section of community concepts. See Commonwealth v. Subilosky, 352 Mass. 153, 159-160, 224 N. E. 2d 197; Irvin v. Dowd, 366 U. S. 717, 722-723, 81 S. Ct. 1639, 6 L. Ed. 2d 751; Swain v. Alabama, 380 U. S. 202. 85 S. Ct. 824, 13 L. Ed. 2d 759; See also Connors v. United States, 158 U. S. 408, 412-414, 15 S. Ct. 951, 39 L. Ed. 1033. Our method of selecting jurors has, we believe, worked well. It has avoided the weeks of pretrial proceedings that are common elsewhere. [246 N. E. 2d at 434-435]

We find only one reported decision wherein the refusal of a trial court to allow inquiry into the prospective jurors’ attitude toward the defense of insanity was deemed reversible error. State v. Olson, 480 P. 2d 822 (Mont. Sup. Ct. 1971). In so holding, the court concluded that;

[t]he serious and complicated defense of insanity should be decided by an impartial jury. How could the defendant be assured of an impartial jury without questioning each juror to see if he could understand the plea and accept it? [at 825]

Eor reasons to be stated hereinafter we do not agree with the foregoing holding.

It is readily apparent that under the relaxed practices of voir dire examination indulged over the years throughout the country, trial judges have fairly generally allowed inquiries into jurors’ atttiudes toward various defenses, including insanity. Except in the Olson case, supra, however, we find no reversals for refusal to allow such inquiries in respect of the defense of insanity. Most of the decisions involve situations where defense counsel unsuccessfully sought to learn whether the jurors would reflect the defense in their verdict if made out — as distinguished from whether they would follow the judge’s instructions on the point. And in such cases affirmances uniformly follow. Dicta approving asking the veniremen their attitude concerning the defense are frequent. See State v. Wallace, 170 Or. 60, 131 P. 2d 222, 241 (Sup. Ct. 1942); State v. Liniers, 224 S. W. 2d 386, 388 (Mo. Sup. Ct. 1949); Gammons v. State, 85 Miss. 103, 37 So. 609, 611 (Sup Ct. 1904); Grogg v. State, 231 Mi. 550, 191 A. 2d 435, 436 (Ct. App. 1963); Cannon v. State, 41 Tex. Cr. R. 467, 56 S. W. 351, 357 (Cr. App. 1900); State v. Royse, 24 Wash. 440, 64 P. 742, 745 (Sup. Ct. 1901); People v. Sowell, 145 Cal. 292, 78 P. 717, 719 (Sup. Ct. 1904); State v. Casey, 34 Nev. 154, 117 P. 5, 11 (Sup. Ct. 1911).

It is clear to us, as said in Bicard, supra, that to embark on productive and useful interrogation of veniremen on voir dire concerning the defense of insanity the trial court would preliminarily have to instruct the witnesses in precise terms as to the legal constituents of the defense. Certainly it could not be presumed, even for purposes of the preliminary issue of capacity and impartiality to serve as jurors, that the jurors, know the M’hfaghten Rule on the defense of insanity. State v. Lucas, 30 N. J. 37, 68 (1959). There might also be the necessity of distinguishing the defendant’s burden on that defense from the State’s burden on the criminal charge as a whole. There then would have to follow not simply the inquiry as to existence of a bias or prejudice against the defense, so understood, but the additional determinative-inquiry as to whether such bias would prevent the juror from. following and applying the instructions the court would, furnish the jury at the close of the case. Moreover, experience teaches, as does the voir dire in the instant case on other subjects of inquiry, that veniremen frequently respond to questions ambiguously or otherwise in such manner as to require repeated or amplified versions of the inquiries, often generating considerable ultimate uncertainty as to their state of mind.

The foregoing considerations satisfy us that the objectives of Manley, outlined above, would not be well served by a rule which mandates inquiries of prospective jurors concerning their attitudes as to substantive defenses, particularly insanity, or as to other rules of law which may become-implicated in the trial or in the courts ultimate charge. Additionally, the attainment of the objective of a fair and impartial jury must be worked out in the context of the-need for reasonably expeditious and efficient conduct of criminal calendars in the interest of the public as well as the parties. This, in our judgment, can best be accomplished by leaving problems such as this one to the discretion of the trial court.

We find no mistaken exercise of discretion here even though the court chose to rest its decision on the undue weighting of the defense of insanity in favor of the defense-should the inquiry requested be pursued. We do not find that factor irrelevant to a proper overall consideration of appropriate discretionary factors.

II

We deal next with the matter of the trial judge’s intervention in the cross-examination of Dr. Markowitz. This witness was not a practising psychiatrist but a neurologist with limited psychiatric training. He had made a neurological examination of defendant, which proved basically negative, but he undertook as a witness to give the psychiatric opinion mentioned above.

The whole episode of which defendant complains takes some five pages in the transcript and couldn’t have lasted more than a few minutes. The judge asked the witness whether on the day in question the defendant knew the difference between right and wrong; whether prior to that day the defendant had a mental disease; whether the events of the day induced mental disease, and what facts made such disease evident to the witness. While the court might better have left development of these matters to the prosecutor, it cannot be said that any of the questions were irrelevant or necessarily beyond justification as attempts by the court to clarify the issues. See State v. Sikora, 44 N. J. 453, 465 (1965). Nor did they in any way demean or disparage the witness.

The next part of the interrogation resulted from inadvertency by the judge and ambivalent answers by the witness. Based upon a prior explanation by the witness, the court asked him as to the source of his information concerning the defendant’s attire on the occasion of the shooting, and the witness responded, “The patient advised me. He told me he was told.” Not appreciating the import of the last sentence, the judge pursued the matter, whereupon the witness responded affirmatively to the question: “He recalled how he was attired ?” This was pertinent to the defendant’s claim of partial amnesia. We find no invidious intent on the part of the judge to harm the defendant, but solely to clarify material facts.

There then followed a series of questions from the judge as to the defendant’s capacity to premeditate — to which our previous comments as to the questions concerning mental disease would be applicable.

The only perturbing aspect of this interrogatory episode is its final phase — that dealing with the witness’ qualifications to express the opinions which he did. It was brief, but the court asked how long the witness was a physician (four years), developed that he practices as a neurologist, not a psychiatrist, and formulated questions which on their surface could be thought to imply a doubt whether a neurologist is able to express an opinion on insanity, as distinguished from diseases of the nerves.

Conceding that the latter phase of the questioning may have implied a doubt by the judge as to the weight of the witness’s opinion on the crucial issue under trial — a view which caused defendant to move for a mistrial, which was denied — we cannot conclude that there was such a combination of impropriety and prejudice, on the whole case, as warrants a reversal.

There is no inflexible rule that a judge may not inquire to clarify the extent of a witness’s ability to formulate a credible opinion, although it is ordinarily preferable to leave such a matter to counsel. The original qualification of this witness did leave an ambiguity on the record as to whether or not he was a psychiatrist, as distinguished from a neurologist. While, concededly, any licensed physician is qualified as a matter of law to express an opinion as to mental disease or defect, it is generally recognized that psychiatry is a medical specialty entitling opinions within its purview by its practitioners to more weight than those of general practitioners. To this extent the last phase of the interrogation may have had some justification, although we do not affirmatively approve it, and it is worth repeating that, in general, the capacity of a trial judge to influence the outcome of a jury trial is enormous, and he should be on his guard to avoid conveying to the jury his disbelief in a witness or a cause. State v. Guido, 40 N. J. 191, 207 (1963).

There was no prejudice. In addition to Dr. Markowitz defendant adduced the testimony of two psychiatrists of substantially higher qualifications than the former. The jury had the full benefit of the defense proofs on temporary insanity before them, making out a prima facie defense; the case in all other respects was fairly tried, and the judge’s charge on the subject of insanity as a defense was full, complete and correct — to the extent that the defense took no exceptions to it whatever.

We conclude that the intervention by the trial court does not, on the whole case, warrant reversal.

Ill

Defendant’s final ground of appeal is that he was not permitted to cross-examine the State’s medical witnesses concerning their understanding of the law of exculpation from criminal responsibility for insanity. We find no merit in the contention. The function of an expert is to give an opinion of fact. That opinion either is material in terms of the applicable law or it is not. It is for the jury to apply the expert opinion (if they credit it) in terms of the court’s instruction concerning the applicable law. A medical expert’s opinion as to the applicable law is of no aid to the jury and could possibly confuse them in light of their duty to apply the law solely as explained by the judge at the end of the case. The State’s experts here did testify as to opinions con9erning facts which, as against the law, tended to negate the defense of insanity. They were subjected to full cross-examination thereon.

The soundness of the foregoing observations is not lessened by the fact that psychiatrist-witnesses sometimes advert to their understanding of the law on the defense of insanity in the course of their testimony. See State v. Guido, supra.

There was no error in excluding the line of cross-examination undertaken.

Judgment affirmed.