On March 17, 1956, the defendant-appellant Leon Giroux, and the defendant Leo Dubois were apprehended by the New Jersey State Police and charged with violating N.J.S.A. 54:40 A -32 in that they transported 154 cases of unstamped cigarettes in the State of New Jersey without having in their possession invoices or delivery tickets showing the true name of the consignee or purchaser and the true name and address of the person who was to assume the payment of the state tax at the point of ultimate destination.
Pursuant to the aforementioned statute, proceedings were also instituted by Aaron K. Neeld, Director of the Division of Taxation, to forfeit and confiscate the 154 cases of cigarettes seized at the time of the defendants' apprehension, and the 1953 GMC truck in which the cigarettes were being transported.
A hearing was held in the Municipal Court of the Borough of Milltown, N.J., and the defendant Giroux was found guilty of violating the statute and fined the sum of $2,685, plus $10 costs. At the same time the court directed a judgment of acquittal as to the defendant Leo Dubois, but directed confiscation of the cigarettes in favor of the State of New Jersey. As to the vehicle, it was agreed by the parties that the same should be returned to a Vermont bank who held a lien on it. From these judgments the defendant appeals to this court.
This proceeding de novo was considered on the basis of the transcript compiled in the municipal court and the oral arguments and briefs submitted by counsel for the respective parties.
It would appear, and I find it a fact, that the appellant Giroux and Dubois were on March 17, 1956 apprehended by Trooper Burke of the New Jersey State Police on the New Jersey Turnpike in the Borough of Milltown and interrogated by Burke as to the load of cigarettes in his (Giroux') truck. The latter, in response to Burke's inquiries, told him that he had purchased the cigarettes in Maryland for friends of his in Vermont and that he was taking them to the Canadian line where he would be met by a Canadian truck into which he was to transfer the cigarettes. Giroux produced two invoices from R. Baylin Co., 222 Market St., Wilmington, Delaware, covering the purchase of the cigarettes, dated "3/16/1956." Both invoices indicated that the merchandise referred to therein was sold to "Leon Giroux" at address "Elkton, Maryland, c/o Magnesium Plant." On the lower portion of the invoices, next to the printed words "customer's signature," was written "Leon Giroux."
In a statement given to Troopers Burke and Osinski of the State Police, he admitted that a fellow in Canada, whose name he knew but was not supposed to tell, gave him $15,000 in cash with which he was to purchase the cigarettes. He was to receive $300 or $400 for his efforts in purchasing and transporting the cigarettes. He also admitted to Albert Baytel, Chief Investigator of the Cigarette Tax Bureau, and
Jack Silverstein, Legal Analyst of the Cigarette Tax Bureau, that the cigarettes did not belong to him but belonged to a friend of his in Canada who asked him to go to Delaware to pick them up, and that he had paid $186 of his own money in addition to the $15,000 given to him by his Canadian friend.
At the trial, Giroux' testimony was at variance with what he had said and the statement that he had signed at the time of and immediately subsequent to his arrest. He testified that he had borrowed the money with which to purchase the cigarettes from a friend and that he was going to bring them to a friend in Vermont who was to sell them and pay the tax that was due there.
Giroux' testimony was patently in conflict with his statements, and I am compelled to give credence to his initial version in this instant, considering all ...