I concur in the views expressed by the learned judge in the prevailing opinion leading to a reversal of the judgment of the court below upon the ground that the trial judge erred by making a misstatement with relation to a fact of moment as having been proved, whereas there was no testimony to support it, and also upon the ground that the verdict of the jury was against the weight of the evidence. My examination and consideration of the other questions presented in the case lead me to the following conclusions — first, as to the direction by the trial judge at the time the defendant was arraigned to plead to an indictment for murder, and, the defendant not answering, that a plea of not guilty be entered, in my judgment, was error requiring a reversal. A cursory statement of the facts leading up to the arraignment of the defendant will suffice to demonstrate that the privileges extended by the law to those mentally or otherwise physically afflicted were denied the accused.
On September 18th, 1925, Mr. Lane appeared in the court below, and after stating to the court that he represented a *Page 689 Mr. Carpenter, who, in turn, represented the natural guardian of the accused, and who likewise was the next friend of the accused, but because of the absence of Mr. Carpenter, and at his request he appeared to move the court before any other act be performed to inquire into the sanity of the defendant. At the same time Mr. Lane presented to the court an adjudication made, under the statute, on the 24th day of March, 1925, by the Essex county juvenile court, adjudicating that the said Harrison W. Noel is insane, and a proper person to be confined in one of the institutions for the insane of this state, and ordered "that said Harrison W. Noel be finally committed to the Essex County Hospital for the Insane," c. In support of the motion, the commitment of Noel as an insane person was offered in evidence. There was also before the court an affidavit of Mr. Barber, which affidavit, in substance, averred that, after the commission of the deed, the affiant, a friend of the Noel family and a lawyer of the New York bar of fifteen years' practice, visited Noel in the county jail and found the latter in such a mental condition as to be unable to comprehend his position and unable to assist counsel and unable to make a defense, c.
Thereupon, the defendant's arraignment was postponed three days, and the defendant being brought into court the following colloquy took place between the court and counsel:
"Mr. Lane — If your honor has concluded to let this defendant plead, I ask your honor to permit us an exception.
"The Court — Yes, I have decided the defendant shall enter a plea."
An exception was allowed and was signed and sealed accordingly by the trial judge. Thereupon, the assistant prosecutor read the indictment to the defendant and he was asked: "How do you plead?" The Court — "The defendant does not answer. A plea of not guilty will be entered." The trial judge then announced that he would take testimony on the Thursday following in order that the prosecutor might determine whether or not the defendant was able to go on with the trial under the plea to this indictment. The theory *Page 690 of the court, as expressed, was that it was within the province of the prosecutor of the pleas to determine whether the defendant was able to go on with the trial. I assume, however, that the statement was inadvertently made, because it does appear that the trial judge finally determined the matter, after a hearing in which testimony was taken, as to the mental condition and ability of the accused to consult counsel in the preparation of his defense. But it seems to me that the essential fact cannot be overlooked that the arraignment of the defendant and the entering of a plea of not guilty to the indictment against him when he failed to answer to the question: "How do you plead?" after it had been brought to the attention of the court that shortly before the commission of the deed the defendant had been adjudicated by a competent court to be insane, and had also before that time been confined in a sanatorium, and was, before being arraigned, in a mental condition so as to be unable to comprehend his position and consult with counsel, was a clear violation of the rights of the accused, accorded him by law. InState v. Peacock, 50 N.J.L. 34, Judge Reed, in delivering the opinion of the Supreme Court (at p. 36), said: "It is undoubtedly the law that a person, who, by reason of insanity, is unable to comprehend his position, and of making his defense, cannot be placed upon trial for a crime. If the court, either before or during the progress of such a trial, either from observation or upon the suggestion of counsel, have facts brought to its attention which raises a doubt of the condition of defendant's mind in this respect, the question should be settled before another step is taken. The method of settling this preliminary question, where it is not the subject of statutory regulation, is within the discretion of the trial court. The court can itself enter upon the inquiry, or submit the question to another jury impaneled for that purpose."
Thus, if the court, before trial, either upon its own observation or upon the suggestion of counsel, has facts brought to its attention which simply raises a doubt of the condition of the defendant's mind as to his sanity, that question should *Page 691 be settled before another step is taken. It is an indisputable fact that the court's attention in the present case was drawn to authentic facts which raised more than a doubt as to the defendant's mental state, and that being so, it should then have halted any further progress in the case and not have proceeded with the arraignment of the accused. But this might not have been of any material consequence, in view of the fact that there was an inquiry made by the court as to the defendant's mental ability to assist counsel in the preparation of the defense, were it not for the circumstances that before such inquiry was made the court, upon its own motion, with notice of the defendant's mental state, nevertheless, upon the latter's failing to answer to the indictment, ordered the entry of a plea of not guilty, without giving the slightest attention to the provision of our statute which, in substance, provides that if a person be indicted for any offense, on being arraigned or called to answer, the defendant stand mute, a jury shall forthwith be impaneled to try and say whether the person standing mute standeth mute obstinately and on purpose or by the providence or act of God; and if they return their verdict that such person standeth mute by the providence and act of God, the court thereupon shall cause him to be remanded to prison and shall not proceed against him until he shall have recovered therefrom; but if the jury shall return their verdict that the person stands mute obstinately and on purpose, then the court shall cause to be entered upon the indictment against such person the plea of not guilty; that if a person shall refuse to plead or answer, the court shall cause a plea of not guilty to be entered. 2 Comp. Stat., p. 1839, § 58.
I think the question, therefore, whether the defendant was standing mute on purpose or by the providence and act of God should have been then and there submitted to a jury. The failure to do so was error prejudicial to the defendant. It is said that there is no bill of exception which raises the question. It seems to me that with the information which the trial judge had before him of the defendant's mental state, coupled with the statement that the court had decided *Page 692 that the defendant should enter a plea to which an exception was duly taken, sufficiently raises the question.
Another objection made against a consideration by this court of the question raised is that in the return to the writ of error there is a statement that the defendant refused to plead to the indictment, and, therefore, the record must prevail; that in order for the defendant to avail himself of the alleged error in the record he should have applied to the court for an amendment thereof. But it seems to me that there is no substance to the objection. The trial judge certified that the above printed book contains the entire record of the proceedings had upon the trial, and that the above printed book, from page 1 to page 513, contains the entire record from the time of the directing of the entry of the plea of not guilty, c. Taking the statement of the trial judge, made at the time and certified to by him to be a record of what took place, we have this situation, that because the defendant did not answer the question, How do you plead? the court, with full knowledge of the defendant's mental state, usurped the province of a jury by deciding that the defendant's muteism was a refusal to answer.
The direction by the court that a plea of not guilty be entered, and immediately thereafter directing testimony to be taken in order to determine whether the defendant was unable, because of insanity, to assist counsel with his defense, conclusively evinces that the court was made aware that the defendant's failure to answer to the indictment was very likely the product of the defendant's diseased mental state, and not the result of obstinacy. For if, as the trial judge believed, at the time, there was sufficient proof before him to provoke an inquiry as to the defendant's ability to confer rationally with counsel, then such proof was equally sufficient to either halt the taking of the plea, or if the court was in doubt, to submit the question to a jury. To adopt any other course would result in an evasion of a clear statutory mandate, and thus deprive the accused of having his mental state determined by a jury. A court cannot properly substitute its determination in such a case for that of a jury. It cannot *Page 693 be successfully urged that no harm was done to the accused, in that he subsequently was afforded a jury trial on the question of his mental condition at the time of the commission of the deed. But that fact cannot cure the error which deprived the defendant of his constitutional right to a fair trial. A court may not ignore a statute which in unequivocal language is intended to safeguard the mentally afflicted accused of crime against inhuman oppression, and be permitted to justify such action by pointing to the fact that the accused had the question of his guilt or innocence subsequently passed upon by a jury. If such a course of procedure be sanctioned it will soon throttle the liberties of the people, make the right of trial by jury a farce and produce a chaotic condition in the administration of the criminal law. To reverse on the ground of the alleged error discussed does not leave the prosecution remediless, as was suggested by counsel of the state.
The result would be to restore to the defendant a status such as he possessed before the plea of not guilty was entered in his behalf, by the direction of the court.
I am also of the view that the trial judge erred in limiting the jury, on the evidence in the cause, to a finding of a verdict of murder in the first degree if the jury found the defendant guilty of murder.
In State v. Warner, 56 N.J.L. 686, Mr. Justice Reed, speaking for this court (at p. 690), says: "The exceptional immunity extended to the drunkard is limited to those instances where the crime involves a specific actual intent. When the degree of intoxication is such as to render the person incapable of entertaining such intent it is an effective defense."
In the later case, Wilson v. State, 60 N.J.L. 171, this court, in an opinion by Mr. Justice VanSyckel, declared: "If by law, deliberation and premeditation are essential elements of the crime, and, by reason of drunkenness or any other cause, it appears that the prisoner's mental state is such that he is incapable of such deliberation and premeditation, then the crime has not been committed." *Page 694
The law is not the creation of such barbarous and insensible animal nature as to extend a more lenient legal rule to the case of a drunkard, whose mental faculties are disturbed by his own will and conduct, than to the case of a poor demented creature afflicted by the hand of God. This subject was fully discussed by me in a dissenting opinion in State v. Martin, ante, p. 388. Moreover, a review of the cases cited on this topic clearly indicate that the legal rule as applied to the drunkard charged with the commission of murder, relating to the degree of guilt, is equally applicable to the mentally afflicted. If the case of State v. Martin holds a contrary view, it is a distinct and deplorable departure from the legal rule enunciated by this court in Wilson v. State, supra, and State v. Warner, supra. For affirmance — BLACK, J. 1.
For reversal — THE CHIEF JUSTICE, TRENCHARD, PARKER, MINTURN, KALISCH, KATZENBACH, CAMPBELL, GARDNER, VAN BUSKIRK, McGLENNON, KAYS, HETFIELD, JJ. 12.