Goldmann, Conford and Haneman. The opinion of the court was delivered by Conford, J.A.D.
[62 NJSuper Page 306] This is an appeal from a conviction of the defendant for unlawful possession of a narcotic drug,
in violation of the Uniform Narcotic Drug Law, R.S. 24:18-1 et seq. , 4. Infraction of any provision of this statute, enacted by L. 1933, c. 186, is made a high misdemeanor. R.S. 24:18-47, as amended. Defendant was tried with two others who were charged with possession on the same occasion. One of them, Ophelia Wall, testified for the State, and her indictment was dismissed by consent at the conclusion of the State's case. The other, Donald D. Carey, was convicted. We are here concerned only with an appeal by Reed.
Defendant's original brief was filed pro se. Upon study of the case prior to submission this court concluded that in the interests of justice to the defendant it ought to give consideration to the question as to whether defendant's offense was in fact only such possession as was necessarily incidental to use, or imminent intended use, and as to whether, in such case, the effect of N.J.S. 2 A:170-8, as amended, which proscribes "use" of a narcotic drug as disorderly conduct, with attendant lesser penalties, was not to excise possession of such qualified character from the coverage of the Uniform Act cited above. For this purpose the court assigned counsel to brief and argue that point on behalf of the defendant, and the appeal has consequently been submitted and argued on the expanded basis indicated. The work of assigned counsel has been very helpful to the court.
Insofar as concerns this defendant the State's proofs were as follows. At about 4:00 A.M. on October 27, 1958 Detectives Dougherty and MacConchie, of the Newark police, accompanied by two patrolmen, raided an apartment on the second floor of premises at 745 Hunterdon Street, Newark, on suspicion of illegal liquor and gambling activity. In a bedroom they found defendants Carey, Miss Wall and Reed, and two other persons named Florze and Wertz. They observed "an unusual amount of smoke hanging in the air." MacConchie said to the group, "This isn't cigarette smoke," but no one responded. He looked under the bed and found "one burnt butt, small, and five sticks," later proven to
contain the drug marijuana (spelled "marihuana" in the statute, R.S. 24:18-2(a), as amended). On a dresser alongside of which defendant and Carey were standing were "two envelopes" containing a substance later proven to be marijuana.
Defendant Ophelia Wall testified that she phoned the defendant Carey, who was her friend, at his home about 11:30 P.M. on October 26, 1958 to ask him to call for her at a bar. After a few drinks there they went to another bar, remaining until 2:00 A.M. There they met Reed, Florze and one Chinn, also known as Wabs. She knew none of them, but Carey knew Chinn. They spoke together out of her presence, and then Carey told her they were going to a birthday party at Chinn's apartment on Hunterdon Street. They all drove to 745 Hunterdon Street in Carey's car. She and Carey were in the front seat, the others in the back. As they got into the car, Carey gave her a brown package and told her to put it in her pocketbook, which she did, not knowing (she said) what was in it. Some time after they arrived at the apartment, which belonged to Chinn and one Wertz, and in which ten or more other people were congregated, drinking beer and listening to records, they went to a bedroom, where Carey asked her for the package and opened it. He told her it contained marijuana and then said to Reed, "Are we going to roll now?" At that juncture she left for the bathroom. She had not seen any rolling or smoking of the marijuana. When she returned from the bathroom she asked Carey what happened to the marijuana, and he responded, "Don't worry. I have gotten rid of it." Just then the police walked in, and the whole group, except for Reed (who had disappeared under circumstances related hereinafter), was taken to the police station. Miss Wall was searched there and marijuana was found in her bag.
Florze testified for the State. He said Reed beckoned him into the bedroom some time after he got to the apartment. He saw open marijuana envelopes and cigarette papers on
the dresser and smelled smoke which he implied he knew was not cigarette smoke. He asked Reed what was going on, and the latter said, "Well, nothing, you know," and he told Reed that "if [he] knew it was going to be like this," he would not have come.
Reed asked one or two of the officers during the raid whether he could go home, as he would lose his job if he did not report to work in the morning. They refused his request, but did not watch him. He walked out of the apartment and went home. The afternoon of that day the police came looking for him, but he was not at home. They came again at 2:00 A.M. the following morning. Forewarned by his wife, he ran down and hid in the basement behind a furnace, where the police found him. They brought him to headquarters and questioned him. He gave them a signed statement, which was introduced in evidence, reading, so far as material, as follows:
"I was drinking with Wabs and after closing hours he said come on down to my house and have some drinks. We all got in a car and went to Wabs' house on Hunterdon Street. We went up to his house and he gave me a can of beer and said to me, come on in this room and we can close this door. We all knew what we were going in there for. When we got in there Wabs said, or the guy that rode us over to Wabs' house said if you want to smoke, man, you roll your own. So I rolled up one and one of the other fellows said give me that one. The fellow that had his girl there rolled up his own and smoked it and his girl said I want one, too. I didn't get a chance to smoke because I was rolling them, because I didn't get a chance to smoke because the other ones wanted them. They were all smoking when the cops came in.
Question: Who is Wabs? Answer: Chinn.
Question: Who told you to roll the smokes? Answer: Chinn.
Question: Do you know who the stuff belonged to? Answer: The girl had one of the envelopes.
Question: How do you know? Answer: Her boy friend, the one who rode us over to Chinn's house, whispered to her and she handed him the envelope.
Question: Who was smoking the Marijuana when I walked into the room? Answer: The girl and her boy friend were and the guy that was there when we got there.
Question: Who did the stuff belong to that was being smoked in the front room? Answer: Either the girl or her boy friend.
Question: How do you know? Answer: I saw the guy whisper to her and she took the brown package out of her purse and gave it to her boy friend.
Question: Do you know the girl and boy friend? Answer: I don't know their name, but I would know them if I saw them again."
Defendant Reed's motion to dismiss as to him at the conclusion of the State's case, on the ground that the evidence did not warrant a finding of possession of marijuana on his part, was denied.
Defendant testified that he was beaten by the police in the basement of his home when apprehended and at the police station. His wife gave corroboratory testimony on this point. He said he did not give the police most of the information set forth in the statement but signed it to keep from getting hurt. He specifically denied having related to the police that portion of the statement to the effect that "We all knew what we were going in there for." He admitted he did tell the police that someone in the room had said to him, "If you want to smoke you roll your own."
Defendant testified that he met Chinn at the bar and was invited to the latter's apartment for a birthday party. His story as to the trip from the bar to Hunterdon Street was essentially the same as Miss Wall's. He confirmed that Carey gave Miss Wall a brown package in the car, but he did not know ...