Price, Sullivan and Lewis. The opinion of the court was delivered by Lewis, J.A.D.
Defendant Bernard Weissman was tried by a jury on a two-count indictment. The first count, which was dismissed by the court, related to the unlawful possession of marijuana. The second charged him with the unlawful sale of such a narcotic drug to one Dolores F. Green, contrary to the provisions of R.S. 24:18-4. Upon judgment of conviction on the latter count, defendant was fined $1,000 and sentenced to State Prison for a term of five to ten years. On appeal we are presented with a three-point contention, viz , that the trial court committed "plain error" (1) in permitting the case to go to the jury despite the State's failure to prove the corpus delicti , and (2) in failing to declare a mistrial after alleged prejudicial statements were voluntarily made by a witness for the prosecution, and that (3) it was reversible error to overrule defendant's objections to the admission of certain evidence.
It was developed by the trial testimony that detectives Daniel J. Coleman, William L. Suckey, Jr., and Hugh F. McNulty, Jr., members of the Newark police force assigned to the narcotics squad, in response to "anonymous information" of illegal activities, investigated apartment #12 at 115 Waverly Avenue, Newark, New Jersey. At that time, May 10, 1960, Dolores Green and her brother were the
occupants of the apartment, and the detectives were admitted into their residence at approximately 10:30 A.M. A search of the premises revealed nine brown envelopes, containing "green vegetative matter which had the physical characteristics of marijuana," under the bed mattress used by Dolores Green, and a small white envelope containing a similar substance which was found in the brother's room under his mattress. Green and her brother were arrested and taken to police headquarters. It was subsequently established, by chemical analysis, that the contents of these envelopes were in fact a narcotic drug identified as marijuana.
Based upon a statement taken from Green, the detectives procured the issuance of a warrant for the arrest of defendant Bernard Weissman. Green testified that she first met defendant at a tavern known as the 279 Club on West Kinney Street, Newark; that about two months prior to May 10, 1960 (after she had seen Weissman "[a]pproximately about six times") defendant had asked her to sell marijuana for him; and that they made arrangements whereby each bag or envelope containing the narcotic was to be sold for $5, from which Weissman was to get $3 and the remaining $2 was to be kept by her. Over a period of "about three weeks" she sold for defendant "about 200" bags or envelopes of the narcotic drug. In the early hours of the morning of her arrest (May 10, 1960), Green received from Weissman eight packages or envelopes of marijuana, and at that time she paid $80 which she owed to him for narcotics previously delivered. She further testified that she never used marijuana and prior to that time (her experiences with Weissman) she had never sold it.
Defendant now urges on appeal, for the first time, that plain error was committed by the court when it allowed the jury to deliberate upon his guilt or innocence when the evidence indicated that Green received marijuana for the purpose of selling the same as his agent, and that the proofs did not establish a sale of narcotics by him to Green.
In sum, it is contended, and we quote verbatim from appellant's brief:
"We submit the State has failed completely to establish that a sale of any commodity whatsoever to Dolores Green occurred and, moreover, that no sale of marijuana was proved. On the contrary, the transcript of the testimony shows convincingly that, assuming arguendo she did receive the alleged marijuana from defendant, she received the same, not by way of purchase from him, but for sale as his agent."
The propriety of defendant's conviction hinges upon the word "sell" as used in the legislation and the indictment now under review. We are referred to the decision of our Supreme Court in Motor Cargo, Inc. v. Division of Tax Appeals , 10 N.J. 580, 585 (1952), holding that "a 'sale' usually imports a transfer of property in the goods by the owner or by one authorized in his behalf to transfer such property," and to our Uniform Sale of Goods Law, R.S. 46:30-7, declaring that "a sale of goods is an agreement whereby the seller transfers the property in goods to the buyer for a consideration called the price." Thus, it is argued, the State must prove beyond a reasonable doubt that defendant transferred or delivered the illicit merchandise, and the title thereto, to Dolores F. Green as the buyer or purchaser thereof for a price or consideration, and, failing such evidence of a sale, the corpus delicti or factum of the crime was not established. We find it unnecessary for this opinion to review the decisional law and the several authorities cited in appellant's brief respecting the basic elements of a crime and the phrase " corpus delicti."
The indictment charges that defendant "did unlawfully sell a narcotic drug, to wit: Marijuana, to one Dolores F. Green, contrary to the provisions of R.S. 24:18-4." The cited statute makes it unlawful to "manufacture, possess, have under his control, sell, prescribe, administer, dispense or compound any narcotic ...