On motion to dismiss indictment.
Yancey, J.c.c. (temporarily assigned).
This is an action based upon the violation of the provisions of Title 2A, chapters 151 and 144 of the New Jersey Statutes pertaining to weapons and explosives and to stink bombs, respectively. More specifically, defendant has been indicted for the following statutory violations:
(1) Indictment No. 1018-64 charges him with carrying a tear gas gun, contrary to the provisions of N.J.S. 2A:151-41, which provides (as amended May 12, 1960) that concealment of the following weapons on or about a person's clothes or person, or otherwise concealed in his possession, shall make such person guilty of a misdemeanor:
"* * * pistol, revolver or other firearm * * * [a]ny instrument of the kinds known as a blackjack, slung shot, billy, sandclub, sandbag, bludgeon, metal knuckles, cestus or similar leather band studded with metal for fitting on the knuckles, loose wool impregnated with metal filings or razor blades imbedded in wood slivers, dagger, dirk, dangerous knife, stiletto, bomb or any high explosive, other than fixed ammunition."
(2) Indictment No. 1019-64 charges defendant with the sale of a firearm without a license, contrary to the provisions of N.J.S. 2A:151-19, which lists the following as weapons whose manufacture or sale is a misdemeanor unless a certificate of registration is filed with the Superintendent of State Police: machine gun, automatic rifle, revolver, pistol or other
firearm, or other instrument of any kind known as a dagger, dirk, dangerous knife, stiletto, bomb or other high explosive.
(3) Indictment No. 1020-64 charges failure to register a firearm. The first count charges defendant with (a) the unlawful sale of a firearm (tear gas pen-gun), and (b) possession with intent to sell a certain firearm (tear gas pen-gun) without having obtained a license for the possession with intent to sell, contrary to the provisions of N.J.S. 2A:151-24, which provides that it shall be a misdemeanor for a retail dealer to sell or expose for sale, or possess with intent to sell, any of the weapons listed in N.J.S. 2A:151-2, namely, machine gun, automatic rifle, revolver, pistol or other firearm, or other instrument of any kind known as a blackjack, sling shot, billy, sandclub, sandbag, bludgeon, metal knuckles, dagger, dirk, dangerous knife, stiletto, bomb or other high explosive.
(4) Indictment No. 1017-64 charges possession and sale of a stink bomb, contrary to the provisions of N.J.S. 2A:144-1, which provides that
"* * * [a]ny person who sells in this state a stink bomb or any stinking, offensive smelling or injurious substance contained in a bomb or container, designed to be broken or exploded in order to emit an unpleasant or injurious odor or gas for the purpose of injuring or being unpleasant to another or injuring the property of another, is guilty of a misdemeanor."
The issues on this motion are: (1) whether a tear gas pen-gun is the type of weapon sought to be regulated by the Legislature in N.J.S. 2A:151-1 et seq., and (2) whether defendant's conduct in selling a tear gas pen-gun was intended to be regulated by the Legislature in N.J.S. 2A:144-1 (sale of stink bomb) and thus punishable as a misdemeanor.
A tear gas pen-gun can be classified as a weapon. A weapon is universally described as "An instrument of offensive or defensive combat, or anything used, or designed to be used in destroying, defeating or injuring an enemy." Black, Law ...