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State v. Reed

Decided: May 8, 1961.


No. A-97: For reversal -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall and Schettino. For affirmance -- None. No. A-98: For dismissal as moot -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall and Schettino. Opposed -- None. The opinion of the court was delivered by Proctor, J.


The State appeals from a judgment of the Appellate Division reversing defendant's conviction of unlawful possession of marijuana, in violation of the Uniform Narcotic Drug Law. R.S. 24:18-1 et seq. (hereinafter called the Drug Act). The defendant cross appeals from that part of the judgment which directed a remand.

Defendant allegedly rolled marijuana cigarettes at a private party. It is not clear from the evidence whether the cigarettes were intended for his own use or that of others. He was convicted under section 4 of the Drug Act (R.S. 24:18-4), which prohibits the unauthorized possession of narcotics; and was sentenced, as a first offender, to a fine of $50 and two to three years imprisonment. The Appellate Division held that in passing N.J.S. 2 A:170-8, which makes the unauthorized use of narcotics a disorderly persons offense, the Legislature impliedly removed from the operation of the Drug Act possession which is "solely for * * * [the possessor's] imminent use." The case was accordingly remanded to the trial court on the ground the defendant was entitled to a jury instruction that if he possessed the marijuana solely for his own imminent consumption, he was not guilty of the offense charged. 62 N.J. Super. 303, 322 (1960). We granted the State's petition, and the defendant's cross petition, for certification. 33 N.J. 334 (1960).

The State argues that section 4 of the Drug Act was intended to proscribe all unauthorized possession, including possession for personal consumption -- imminent or otherwise;

and that the Legislature has never manifested an intent to restrict the scope of section 4. The defendant argues the Appellate Division correctly held that N.J.S. 2 A:170-8 was intended to limit the possession proscribed by the Drug Act; but that the Appellate Division should have directed a judgment of acquittal because the evidence clearly showed he possessed the marijuana for his own imminent use.

We first consider whether, as argued by the State, unauthorized possession for personal consumption -- imminent or otherwise -- was originally intended to be a violation of the Drug Act. That statute was promulgated by the Commissioners on Uniform State Laws and was adopted by New Jersey in 1933. L. 1933, c. 186. Section 4 (section 2 of the Uniform Act) provides:

"It shall be unlawful for any person to manufacture, possess, have under his control, sell, prescribe, administer, dispense or compound any narcotic drug, except as authorized by this chapter." (Emphasis added) R.S. 24:18-4.

Drug addiction or use has never been a violation of this or any other section of the act. Use is ordinarily preceded by the user's possession of the drug. Does it follow that such possession was also intended by the Legislature to be exempt from the penal sanctions of the Drug Act? We think not, for the following reasons:

First, had the Legislature intended to limit the possession denounced by section 4, it could readily have done so by making it a crime to possess "with intent to sell, administer, dispense, compound, etc." Instead, it employed the unqualified term "possess." "Possess," as used in criminal statutes, ordinarily signifies an intentional control of a designated thing accompanied by a knowledge of its character. State v. Labato, 7 N.J. 137, 148 (1951). On its face, therefore, section 4 would seem to apply to all unauthorized persons who knowingly exercise control over narcotic drugs.

Secondly, section 4 of the Drug Act provides that "it shall be unlawful for any person to * * * possess [34 NJ Page 558] * * * any narcotic drug, except as authorized by this chapter." (Emphasis added) There follows a number of sections which permit possession under certain conditions by physicians, pharmacists, and others who must handle narcotics in the regular course of business. See R.S. 24:18-5 to 9. Section 36 expressly permits possession for the possessor's personal consumption or use if he has obtained the drug from an authorized dispenser for medical treatment and if he keeps the unused drug in the container in which he received it. R.S. 24:18-36. This exception shows that the Legislature considered the problem of possession by a user. And the provision in section 4 that possession is unlawful except as authorized elsewhere in the statute, together with section 36, shows that the Legislature intended possession for personal consumption unrelated to medical treatment to be a violation of the act. In addition, the enumeration of express exceptions to the operation of section 4 indicates a legislative awareness that the broad sweep of the language in that section would proscribe possession by bona fide patients, physicians, pharmacists, public officials, etc. It is unlikely the Legislature realized that the ordinary meaning of the statutory language extended to such persons, but was unaware that it also extended to those who possess narcotics for personal consumption unrelated to medical treatment. Under these circumstances, we find particularly applicable the general rule of construction that enumerated exceptions in a statute indicate a legislative intent that the statute be applied to all cases not specifically excepted. See e.g. Armburg v. Boston & M.R.R., 276 Mass. 418, 177 N.E. 665, 80 A.L.R. 1408 (Sup. Jud. Ct. 1931), affirmed 285 U.S. 234, 52 S. Ct. 336, 76 L. Ed. 729 (1932); State v. Richards, 157 Tex. 166, 301 S.W. 2 d 597 (Sup. Ct. 1957). Applying that rule of construction here, the express exemption of possession by patients, physicians, etc., from the operation of section 4 is an indication that possession by all other persons was to be included.

Thirdly, the inclusion of unauthorized possession for personal consumption within the proscriptions of the Drug Act seems necessary to fulfill the legislative goal of suppressing illegal narcotics traffic. Every possessor of narcotics has the power to dispense them to another. That power in the hands of any person is a potential source of illegal traffic. The Legislature recognized this by including in the Drug Act detailed provisions which regulate the conduct of those persons authorized to possess drugs. R.S. 24:18-11 to 36. The possessor-user is not subject to these regulatory provisions. Therefore, his power to dispense, necessarily accompanying his possession, is a dangerous source for the spread of narcotics addiction and its attendant evils. In addition, exclusion of possession for personal consumption from the proscriptions of section 4 would tend to inhibit effective enforcement of the act against illegal distribution by non-users. Possession was undoubtedly made a violation to eliminate the burden of proving the additional elements essential to a conviction of the other offenses -- manufacturing, selling, dispensing, administering, or compounding narcotic drugs. To make the existence of the offense of possession depend upon whether the possession is for personal consumption or for distribution would be to increase rather than reduce the enforcement problems faced by the State. Where, for example, the amount possessed is small, it would ordinarily be most difficult to prove that the possession was not for personal consumption.

Finally, other jurisdictions have recognized that section 2 of the Uniform Act (which is the same as our section 4) proscribes all unauthorized possession, including that for the possessor's own use. E.g., Peachie v. State, 203 Md. 239, 100 A. 2 d 1 (Ct. App. 1953); State v. Martin, 193 La. 1036, 192 So. 694 (Sup. Ct. 1939); Tomlin v. State, 338 S.W. 2 d 735 (Tex. Cr. App. 1960); Comment, "Narcotics Regulation," 62 Yale L.J. 751, 779 and nn. 171, 172 (1953). But see Commonwealth v. Warner, 87 Pa. Dist. & Co. R. 91 (Ct. Quar. Sess. 1954) (interpreting a statute similar to

the Uniform Act). And the federal courts have similarly interpreted an analogous provision of the Narcotics Drugs Import and Export Act. 21 U.S.C.A. ยง 174. United States v. Garnes, 258 F.2d 530, 533 (2 Cir. 1958), cert. denied, 359 U.S. 937, 79 S. Ct. 651, 3 L. Ed. 2 d 637 (1959); Tanzer v. United States, 278 F.2d 137, 140 n. 8 (9 Cir. 1960).

For the foregoing reasons, we conclude that when our Legislature adopted the Drug Act, it intended the possession proscribed in section 4 to include unauthorized possession for personal consumption -- imminent or otherwise.

We next consider what effect the Legislature intended the passage of N.J.S. 2 A:170-8 (hereinafter called the Use Act) to have upon section 4 of the Drug Act. The Use Act, as amended, provides in pertinent part:

"Any person who uses or who is under the influence of any narcotic drug, as defined in article 1 of chapter 18 of Title 24 of the Revised Statutes (Food and Drugs), the uniform narcotic drug law, for a purpose other than the treatment of sickness or injury as prescribed or administered by a person duly authorized by law to treat sick and injured human beings, is a disorderly person."

The Appellate Division, expressly disclaiming any holding of implied repealer, said at various parts of its opinion that the intended effect of passing the Use Act was to "constrict," "eliminate," "excise," or "remove" from the scope of the Drug Act "such possession of narcotics as is either inseparable from actual use thereof by the accused, or solely of a nature necessarily incidental to imminent actual use by him." However phrased, the statutory interaction described by the court below has traditionally been known as an implied repealer. See, e.g., Two Guys from Harrison, Inc. v. Furman, 32 N.J. 199, 223-225 (1960). We emphasize this because, for well-established reasons relating to the ...

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