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Ali v. Towe

Decided: February 26, 1954.

MARITA BEN ALI, ERNESTINE HENRIQUES AND VERTITIA GREENE, PLAINTIFFS-APPELLANTS,
v.
HARRY L. TOWE, DEPUTY ATTORNEY GENERAL OF NEW JERSEY AND ACTING PROSECUTOR OF BERGEN COUNTY, DEFENDANT-RESPONDENT



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

Clapp

This appeal turns upon the question whether, by force of the statute, N.J.S.A. 24:18-38.1 to 24:18-38.3, the owners of a Cadillac automobile had forfeited their rights thereto.

Hence Green, while driving the car, was arrested for having in his clothes 30 packages of cocaine in violation of N.J.S.A. 24:18-4, a high misdemeanor (N.J.S.A. 24:18-47). The car was seized and delivered to the defendant, the Acting Prosecutor of Bergen County, and later Green was convicted and sent to State's Prison.

Shortly after his arrest, Green's mother and two married sisters, the owners of the car, instituted an action for the replevin of the car without (see R.R. 4:78-1 and 4:78-4 (c); N.J.S. 2 A:59-10) issuing a writ of replevin. The judgment was for the defendant, and plaintiffs bring this appeal, citing Commercial Credit Corp. v. Congleton , 21 N.J. Super. 88 (Cty. Ct. 1952).

The statute -- see the two provisos in N.J.S.A. 24:18-38.3 -- contemplates an action such as this (cf. Farley v. Manning , 4 N.J. 571 (1950); cf. also Day v. Compton , 37 N.J.L. 514 (E. & A. 1874), even though the property is in custodia legis. Indeed, while such an action is pending, the statute stays the confiscation proceeding provided for by its terms. However, the replevin action itself may, in the discretion of the court in which it is brought, be stayed until after the trial of the narcotics violation -- if that violation

is to be tried; the prosecutor should not be required to try the crime first in the replevin action.

The prosecutor, to make out his defense in the action here for replevin, has the burden of establishing two matters: first, a violation of chapter 18 of Title 24 of the Revised Statutes; and, second, that the vehicle was (as stated in N.J.S.A. 24:18-38.1) "used in, for or in connection with the violation." The question here is as to the second matter and, more particularly, as to the significance to be put upon the italicized words.

According to an agreed statement of facts, Green at the time of his arrest "was using said vehicle to transport himself." But as to his purposes in that regard, we know nothing. It must therefore be taken from the record that there was no relation whatever between Green's use of the car and the possession of the drug -- the violation here -- save a coincidence in point of time; the relation was casual, not causal. Hence it could not be said that the car was "used * * * for * * * the violation"; "for," here, means "in order to effect" (Webster's New International Dictionary (2 nd ed.)), and, as stated, the car was not used to effect the violation. The prosecutor's case must therefore depend on the words "in connection with" and "in."

The word "connection" may mean "junction" or "relationship" or, specifically, "relationship by causality, mutual dependence, logical sequence or the like; relation of things when one of them is involved in another." Webster's, supra. "The words 'in connection with' could imply a relationship either proximate or remote." S.P. Dunham & Co. v. 26 E. State St. Realty Co. , 134 N.J. Eq. 237, 245 (Ch. 1943). However one does not properly, or at any event ordinarily, speak of two matters as being "connected" when they have nothing in common but a coexistence in point of time. The phrase "in connection with" therefore will not aid the prosecutor's argument.

The word "in," however, is more troublesome. Among other things, it may signify "close connection by way of * * * active participation" or -- a very different matter

here -- "during the course of." Webster's, supra; cf. Tuttor v. State , 28 Ga. App. 152, 110 S.E. 455 (Ct. App. 1922). It is agreed that the car was ...


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