[76 NJSuper Page 247] The defendants were charged in the Municipal Court of the Township of Piscataway with violation of R.S. 39:4-52, which statute provides that "no
person shall operate a motor vehicle upon a public highway * * * in a race * * *." The matter was tried in the County Court on the transcript made below.
Initially, defendants claim that there is no evidence that in fact they were racing. Examination of the record discloses that two police officers of the township observed seven cars proceeding in a westerly direction at a rate estimated to be between 50 and 60 miles per hour along an unopened portion of the new so-called East-West Highway, officially designated as Route 287. One of the cars was in advance of the others. The six remaining cars were proceeding two abreast. The driver of the lead car was never apprehended. The drivers of the first pair of cars were the defendants O'Connor and Domino. The remaining four cars reversed themselves and proceeded in an easterly direction. Soon thereafter, the defendants Pakenham and Bersin were apprehended by other police officers a considerable distance from the point where O'Connor and Domino were picked up.
The defendants Pakenham and Bersin suggest that they were not properly identified as among the seven. The court is of the opinion that the evidence is sufficient to reasonably infer that they were among the seven, inasmuch as they were picked up soon after the original contact was made by the police, on a road on which there was no other traffic, there being no method of ingress or egress from the point where the seven cars were observed by the police and the point where said latter two defendants were apprehended. None of the defendants testified in the court below. Where there are facts in evidence concerning acts or conduct which are inculpatory or imputative in some degree of guilt, and which a defendant of his personal knowledge can deny under oath, his failure to do so raises a permissible inference available to the trier of the facts that the defendant could not in truth deny facts so testified to. See State v. Costa , 11 N.J. 239 (1953); State v. O'Leary , 25 N.J. 104 1957); State v. Bassano , 67 N.J. Super. 526 (App. Div. 1961).
All of the defendants argued that there is no proof of racing. Some of the police testified that the cars were in fact racing while others said there was no evidence of racing.
We hold that the final determination of whether or not there was racing is for the court, based upon the evidence as to what was in fact observed by the police without regard to the opinion of the witnesses of the State as to whether or not the facts so testified to constitute proof of racing. Expressed in another way, whether or not there was proof of racing is a conclusion to be drawn from the testimony of the facts observed.
Essentially, the State's case is predicated upon the testimony that the defendants were coming down the road, three waves of them, two abreast, at about 50 or 60 miles per hour.
"Race" is defined in Webster's New International Dictionary (2 d ed. 1961) as "to compete in speed," and also "to run swiftly, to move at top speed." Inasmuch as Article 12 of Title 39 regulates authorized rates of speed for the operation of motor vehicles, we conceive that R.S. 39:4-52, in referring to "a race," prohibits a speed contest rather than prohibits the operation of a motor vehicle at top speed. In other words Section 52, in using the term "race," proscribes speed competitions.
Defendants argue that there is nothing from which the trier of the facts can legitimately draw the inference that there was in fact a race as we have thus defined it. They argue that there was no evidence of a starting point or a finishing point, no evidence of a timer or a starter, and no evidence to show that the cars changed their relative positions while observed by the police, and for ought that appears in the evidence the cars in question were not racing but were merely proceeding in formation at a rapid rate of speed.
The court is unwilling to accept this argument. We believe that under all the circumstances of ...