¶1(dissenting). The psychiatrists agreed that defendant is a constitutional psychopath. Their testimony differed as to mental capacity essentially by reason of the different hypotheses upon which they testified. The State’s witness was confined to the relationship of that medical condition to defendant’s general capacity to differentiate between right and wrong. He was not asked to express his view with respect to the impact of liquor and “goof balls” upon the defendant’s mental capacity, either considered alone or in conjunction with the underlying psychopathic condition. The defense witness, on the other hand, nowhere suggested that the psychopathic state alone impaired defendant’s legal capacity. Rather, as I read his testimony, the psychopathic state explained defendant’s use of liquor and “goof balls,” and he attributed the lack of legal capacity at the time of the homicide to the influence of alcohol and “goof balls,” actually on the basis of what the defendant factually asserted to have been their influence upon him.
¶2As the majority opinion points out, voluntary intoxication is not a defense, and if we assume that “goof balls” are narcotics (the record is vague in this regard), the same rule doubtless would apply to voluntary use of drugs. Weihofen, Mental Disorder as a Criminal Defense (1954), p. 128. Our cases do not suggest that intoxication will be given a different role if the drive to drink has some psychopathic origin, and the majority opinion does not hold that it should. Thus, as our law now stands, the use of liquor or narcotics may be shown only to meet the State’s claim that the homicide, presumptively murder in the second degree, was in fact murder in the first degree.
¶3*485The trial judge’s charge with respect to insanity and the role of intoxication was eminently fair. He expressly referred to the expert testimony and left it for the jury’s consideration without any adverse reflection upon it. After completing a full discussion of those subjects and the elements of the crime, the trial judge proceeded to another subject, namely, the rules bearing upon the jury’s evaluation of testimony, and in the course thereof gave the instruction here challenged. That the instruction was intended for the benefit of the defendant cannot be doubted. The court meant thereby to foreclose the possibility that the jury would deem prior convictions to evidence propensity for crime or guilt of the present offense. Defendant was ably represented. His counsel raised no objection, doubtless understanding the charge in the vein I have described.
¶4The majority opinion states that the instruction .undermined the defense of insanity by removing the prop upon which the defense psychiatrist rested his finding of the psychopathic condition.
¶5It is difficult for me to believe the jury, already fully instructed as to insanity and the elements of the crime, would have thought the court had returned to the discussion of the basic issues and had modified its charge. Moreover, the content of the challenged instruction did not clash with the charge on the substantive issues. Defendant’s prior conflict with society was a basis for the medical finding of a constitutional psychopathic personality, and both the State and defense agreed that finding was correct. The prior offenses, with or without convictions therefor, remained as undisputed facts and the charge could not have been understood to deny them the limited role they had, to wit, to bolster the agreed fact that the defendant was a constitutional psychopath. In short, in the light of the common agreement that defendant was thus psychopathic, I cannot see how the questioned instruction could have been understood to affect adversely the jury’s acceptance of that agreed medical fact.
¶6It seems equally clear to me that the error, if such it was, had no bearing upon the outcome. ' The trial court *486charged, wholly apart from the psychopathic state and legal insanity, that intoxication could be found to negative the elements of intent, premeditation or deliberation, and thus hold the offense to second degree. The ultimate question in that regard was whether defendant in fact knew what he was doing, whether he did premeditate, did deliberate upon the design, and did intend to kill. There was evidence from which the jury could conclude that defendant was fully aware of what he was doing and did perform the mental elements required for a first degree conviction. The verdict of first degree constituted a finding that defendant’s mental processes were not obliterated. Thereby the jury found against the factual hypothesis upon which the psychiatrist’s opinion of legal insanity actually depended, to wit, defendant’s assertion that he was unconscious of the critical events.
¶7It is also argued that it was error to charge that the convictions could be considered with respect to credibility. Judgments for juvenile delinquency of course may not be proved to impair credibility, and strictly viewed, the charge was incorrect. But we are concerned with the question whether there was plain error, and I do not think there was.
¶8It is the offending conduct, rather than a conviction therefor, which affects credibility. The rule which limits cross-examination to convictions rather than to criminal conduct itself is designed to avoid the trial of collateral issues which would follow if violations of criminal law, unverified by judgment, could be explored. But if criminal conduct, without conviction, does get into the case, the jury may consider it. State v. Dunphy, 19 N. J. 531, 537 (1955).
¶9Here the defendant himself offered proof of his misbehaviors to evidence his psychopathic nature. Obviously, that very conduct, and indeed his psychopathic nature itself, would bear upon the trustworthiness of his testimony. His age at the time of his misconduct would be a factor a jury could consider, but I do not see how the subject of misconduct could be taken from the jury’s consideration. It is not claimed that the trial judge should have charged *487that the jury shall not consider his acknowledged behavior (apart from the adjudications of juvenile delinquency) in deciding whether to believe him. The question, therefore, is whether the misbehavior being in the case on defendant’s initiative, the error in telling the jury that the adjudications themselves hear upon credibility was so plainly harmful as to require reversal. The adjudications may have added something to the admitted facts, but if they did, it was not enough to warrant invocation of the plain error rule.
¶10I would therefore affirm the judgment.
¶11Wacheneeld, J., concurring in result.
¶12For reversal—Justices Heher, Wacheneeld, Burling, Jacobs, Eranois and Proctor—6.
¶13For affirmance—-Chief Justice Weintraub—1.