On certification to the Appellate Division of the Superior Court.
For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Brennan. For reversal -- None. The opinion of the court was delivered by Vanderbilt, C.J.
The plaintiffs obtained a judgment in the Warren County District Court directing the defendants to return to them their two hunting rifles which were confiscated by the defendant Busnardo, a fish and game warden, and which are now in the possession of the defendant Lennon, as Sheriff of Warren County. The defendants appealed to the Appellate Division of the Superior Court and we certified the matter on our own motion while pending there.
On September 15, 1953 the plaintiffs were apprehended by the defendant Busnardo. At the time of their apprehension the plaintiffs were seated in an automobile that was parked in a field near Oxford, New Jersey. Lying on the back seat of the car were the two rifles in question -- one a Winchester Model 70-270 cal. equipped with a Bausch and Lomb scope,
belonging to the plaintiff Spangenberg; the other, a Remington Model 760-30-06 cal. equipped with a Weaver K-4 scope, belonging to the plaintiff Sawran. The weapons were not loaded, but there was also found in the car a box containing eight 30-06 caliber silver-tipped rifle cartridges, which was ammunition for the rifle owned by Sawran. No ammunition was found for the rifle of Spangenberg.
The warden took the two rifles and requested the plaintiffs to follow him to police headquarters at Washington, New Jersey. After questioning they were taken before the municipal magistrate of the Municipal Court of Independence and Mansfield Townships, where civil complaints were prepared charging each of them with hunting deer out of season, Sawran with the possession of an illegal missile, and Spangenberg with the illegal possession of wild deer.
On September 16, 1953 both plaintiffs signed a statement which set forth that on September 15, 1953 they were target practicing on Sawran's property on the lower end of Buckley Avenue in Oxford, using the weapons in question, and both shot at a doe deer and killed her; that they took the deer to a quarry hole, skinned and butchered her, dropped the remains, hide and head, into the quarry hole and put the carcass into Spangenberg's freezer. Half of the deer, it is said, belonged to Sawran but since he had no place to keep it, Spangenberg stored it in his freezer.
We pause to point out that none of the details of the fortuitous coincidence of a doe deer being on the plaintiff's target range are set forth in their statements; nor are we told how it happened that the plaintiffs were apprehended for their acts after they had butchered and dressed the venison and had stored it in the freezer; nor is there any indication that the plaintiffs were deprived in any way of the benefit of their prize.
Both plaintiffs pleaded guilty to the complaints and were each penalized $200 and costs. The record of the judgments introduced in the trial court shows that Sawran was found guilty by the municipal magistrate of hunting with an illegal missile in violation of N.J.S.A. 23:4-44 and also for unlawfully
hunting for wild deer with firearms out of season under N.J.S.A. 23:4-42. The conviction against Spangenberg was for unlawfully having in his possession a wild deer out of season in violation of N.J.S.A. 23:4-43 and also for unlawfully hunting for wild deer with firearms out of season under N.J.S.A. 23:4-42.
It appears that the warden who seized the two weapons informed the plaintiffs that he would hold the rifles for 15 days and would then return them, but nevertheless he continued to hold the weapons. After about a year had gone by, Spangenberg went to see the chief warden at Hackettstown, who informed him that the two rifles would never be returned and that they had in fact been confiscated and turned over to the sheriff. A written demand was ...