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State v. Tracy

Decided: December 21, 1953.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ERNEST TRACY, DEFENDANT-APPELLANT



Clapp, Goldmann and Ewart. The opinion of the court was delivered by Clapp, S.j.a.d.

Clapp

This is a test case. The appellant was convicted in the municipal court as a disorderly person for violating N.J.S. 2 A:170-76. The County Court affirmed. By the statute it is provided:

"Any person who, without just cause, * * * possesses with intent * * * to sell the same, any instrument, medicine or other thing, designed or purporting to be designed for the prevention of conception * * * is a disorderly person."

The defendant owns vending machines located in men's toilets in gasoline stations, each machine containing articles called prophylactics, commonly known as condoms, sold to the public by inserting a quarter into the machine. In his brief defendant concedes the State established that he (in the words of the statute) "possessed" the articles with intent to sell them. However, with respect to the statutory provision as to "just cause," no question was raised below, and the briefs here do not go into it. Cf. 153 A.L.R. 1218, 1220, 1221.

Both the machine, and the package containing the prophylactic, bear the legend: sold only for the prevention of disease. At the trial in the County Court the State asked the court to take judicial notice that, notwithstanding the legend, this prophylactic "is a contraceptive" -- that is, that it was designed as such. The establishment of this fact was essential to the State's case, and there was no other proof of the matter. Indeed there was no proof at all on the part of the defendant.

The court may take judicial notice of any fact so notorious as not to be the subject of a reasonable dispute. Grand View Gardens, Inc. v. Borough of Hasbrouck Heights , 14 N.J. Super. 167 (App. Div. 1951); Brown v. Piper , 91 U.S. 37, 23 L. Ed. 200 (1875); Thayer, Judicial Notice , 3 Harvard L. Rev. 285, 305 (1890); Model Code of

Evidence , see Professor Morgan's discussion of Judicial Notice, pp. 65-69, also Rules 801-806. In State v. Arnold , 217 Wis. 340, 258 N.W. 843, 846 (Sup. Ct. 1935), it is said that the sale of condoms "in a public toilet by a mechanical vending machine is a sufficient warrant for the inference that the purpose of its sale was contraception and not merely the prevention of disease." Cf. Commonwealth v. Goldberg , 316 Mass. 563, 55 N.E. 2 d 951 (Sup. Jud. Ct. 1944). State v. Arnold, supra , however, is not quite in point. Our statute deals, not with the designs of the seller of the article -- in other words, not with "the purpose of its sale" (State v. Arnold, supra) -- but with the designs of the article; the statute speaks of any " thing , designed or purporting to be designed for the prevention of conception." Furthermore, by employing the words "purporting to be designed," the statute does not require proof of the article's designs as they existed in the mind of the manufacturer or any one else when the article was made. "To purport" means, as used here, "to have the appearance * * * of being." Webster's New International Dictionary (2 nd ed.); United States v. McGuire , 64 F.2d 485, 491 (C.C.A. 2, 1933).

So the question then becomes this: May judicial notice be taken that the prophylactics here "have the appearance of being" designed as contraceptives? We think judicial notice may be taken that their apparent design is twofold: to prevent not only conception but also disease. In reaching this conclusion we attach little significance to the unmistakably self-serving legend on the package; the sale through a vending machine, without any meeting of buyer and seller, belies any restriction professedly placed upon the purpose of the sale.

That brings us to the defendant's principal point. If, he argues, you find (as we do find) that the article is designed for two purposes -- first, to prevent disease and, second, to prevent conception -- then, since the first would lead to an acquittal and the second to a conviction, the presumption of innocence, not to speak of the presumption

that the law has been obeyed, compel an acquittal. Commonwealth v. Werlinsky , 307 Mass. 608, 29 N.E. 2 d 150 (Sup. Jud. Ct. 1940). The answer to the argument is simple. We think the statute, we deal with, may perhaps be aimed at condoms more than any other article, despite the fact that they are designed for both purposes stated. Where one of the substantial designs of an article is the prevention of conception, any person who, without just cause, comes into the possession of it, with intent to sell it, is caught squarely within the terms of the statute. It matters not that the article was designed for some other purpose too. There is no warrant whatever for holding (as we are asked to do) that the words, "designed for the prevention of conception," mean "designed exclusively" for that purpose.

The defendant insists strongly that if the statute is so construed, then any one who, without just cause and with intent to sell the same, possesses antiseptics capable of use as a contraceptive, such as vinegar, sour milk and warm water, is a disorderly person. Of course not. None of these things was "designed" to ...


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