Conford, Collester and Labrecque. The opinion of the court was delivered by Collester, J.A.D. Conford, S.j.a.d. (dissenting, in part).
Defendant Arthur Humphreys, Jr. appeals from convictions of breaking and entering with intent to steal (N.J.S. 2 A:94-1), carrying weapons in an automobile without first having obtained a permit to do so (N.J.S. 2 A:151-41), and unlawful possession of a narcotic drug (N.J.S.A. 24:18-4). Two others, James Thomas and Roy Goins, were jointly indicted with defendant Humphreys for the first two offenses. On the day of the trial a severance was granted to Goins, who was unavailable. Thomas, who was jointly tried with Humphreys, was also found guilty, but this appeal is by Humphreys alone.
The State's proofs established that during the morning business hours of November 14, 1966 Goins drove his car, in which the defendant and Thomas were passengers, into a parking lot near the State Labor and Industry building in Trenton. State Trooper Thomas Carr, who was on the
12th floor of the building maintaining a surveillance of the lot with the aid of binoculars, saw Goins leave his parked car and walk over to a white Buick automobile parked four or five cars away. The Buick was owned by Marie Doran, an employee of the Division of Employment Security, who had parked it in the lot earlier when she went to work. Carr said Goins looked into the Buick and then walked back to his own vehicle. Thereafter Goins again approached the Buick but returned to his own car when another automobile entered the parking lot. Goins opened the trunk of his car, went to the driver's side and then returned to the Buick. Carr observed Goins poking what appeared to be a wire coat hanger through the window of the Doran car. The trooper contacted a patrol car by radio and directed it to block the exit. When another automobile drove into the lot Goins stopped working the wire through the car window, returned to his own car and attempted to drive out of the exit. He was intercepted by the police. An examination of the Buick showed the door was ajar and the latch lifted up. There were scratch marks on the rubber sealer between the windows.
A search of the Goins car revealed a rolled up wire coat hanger concealed under the front seat where the defendant had been seated. The three men were taken to the police headquarters in the State Capitol for questioning.
Thereafter, Carr with two other officers returned with Goins to the parking lot where the latter's car was parked. After Carr entered the vehicle he noticed a pearl-handled .38-caliber revolver protruding from the back of the rear seat. An examination indicated it was cocked and fully loaded. A further search revealed a .32-caliber loaded pistol concealed underneath the rear seat. When Goins was questioned about the guns he professed to have no knowledge of who owned them. Sometime later he said they belonged to him.
A further search of the vehicle turned up marijuana seeds in the console compartment between the front bucket seats
and an envelope containing marijuana under the floor mat on the driver's side of the car. A search of Thomas uncovered a paper bag containing marijuana. An examination of vegetative matter found in Humphreys' shirt and jacket pockets revealed that it was marijuana.
Defendant denied that he committed the crimes charged in the indictments. He testified that he asked Goins why he was going into the parking lot and that Goins replied he was going there to urinate. He said he had no knowledge of where Goins went after he left the car and denied that he ever saw the wire hanger or the guns. He further denied that he ever had marijuana in his possession.
The first point urged by defendant for a reversal pertains to his conviction of carrying weapons in an automobile without having first obtained a permit to carry the same. N.J.S. 2 A:151-41. He alleges the court erred by including in its charge to the jury the provisions of N.J.S. 2 A:151-7, which are as follows:
"The presence of a firearm * * * in a vehicle is presumptive evidence of possession by all persons occupying the vehicle at the time."
Since no objection was made to the charge, as required by R.R. 3:7-7(b), no basis for appellate review exists unless the alleged error in the charge qualifies as plain error. R.R. 1:5-1(a); State v. Corby, 28 N.J. 106, 108 (1958).
Defendant contends that by charging the statutory presumption the court vitiated his constitutional presumption of innocence and that, in any event, the statute should not have been applied to the facts of the case.
It is, of course, well settled that a person accused of crime enters upon his trial clothed with the presumption of innocence and that he can be convicted only by proof beyond a reasonable doubt. However, that presumption of innocence may be overcome, not only by direct proof, but,
in many cases, when the facts are not enough, by the weight of a countervailing legislative presumption. Yee Hem v. United States, 268 U.S. 178, 184-185, 45 S. Ct. 470, 69 L. Ed. 904 (1925). The Legislature may declare that certain facts create a presumption which, if reasonable, requires an explanation by the accused. In order that a legislative presumption that one fact shall constitute prima facie evidence of the main fact in issue does not constitute a denial of due process of law, it is only essential that there shall be a rational connection between the fact proved and the ultimate fact presumed, and that the inference of fact from proof of another shall not be so unreasonable as to be a purely arbitrary mandate. Yee Hem v. United States, supra, at p. 183, 45 S. Ct. 470; Tot v. United States, 319 U.S. 463, 63 S. Ct. 1241, 87 L. Ed. 1519 (1943); see also State v. Giordano, 121 N.J.L. 469 (Sup. Ct. 1939); State v. Lisena, 129 N.J.L. 569 (Sup. Ct. 1943), affirmed 131 N.J.L. 39 (E. & A. 1943).
N.J.S. 2 A:151-7 is a legislative evidentiary rule which provides that the presence of a firearm in a vehicle is presumptive evidence of possession by all persons occupying the vehicle. There is a rational connection between the fact proved and the ultimate fact presumed. It does not shift the burden of proof of guilt nor deprive a defendant of due process. It means only that the accused must go forward with an explanation to rebut the presumption. State v. Laster, 69 N.J. Super. 504, 508 (App. Div. 1961). When the accused offers evidence to rebut the presumption the issue ordinarily is a matter for determination by the jury. The only exception would be where the court concluded that reasonable men could not differ in accepting as true the evidence adduced by the defendant to overcome the statutory presumption, in which case the court would enter a judgment of acquittal. We conclude that N.J.S. 2 A:151-7 is constitutionally valid. See State v. Blanca, 100 N.J. Super. 241 (App. Div. 1968), decided April 2, 1968. Cf. People v. Russo, 303 N.Y. 673, 102 N.E. 2 d 834
(Ct. App. 1951), affirming 278 App. Div. 98, 103 N.Y.S. 2 d 603 (App. Div. 1950); People v. Terra, 303 N.Y. 332, 102 N.E. 2 d 576 (Ct. App. 1951).
In support of his contention that the statutory presumption was not applicable to the facts in this case defendant places reliance on State v. Lewis, 93 N.J. Super. 212 (App. Div. 1966), certiorari denied 386 U.S. 986, 87 S. Ct. 1297, 18 L. Ed. 2 d 238 (1967). That case is distinguishable on the facts. There, a gun was found concealed in the pocket of a jacket on the front seat of a car in which Lewis and six others had been riding. The jacket was not shown to be Lewis'. Lewis had been sitting in the back seat and was not in the car when the jacket and gun were found.
In the present case the evidence showed that defendant had been riding on the front passenger seat of the car before he was taken into custody. When Trooper Carr thereafter returned to the car with Goins he sat in the same seat. The trooper's testimony indicates that while so seated he observed the .38-caliber revolver to be clearly visible, protruding from the back seat of the car. A factually similar case is State v. Blanca, supra, where this court held that the trial judge did not commit error in charging the provisions of N.J.S. 2 A:151-7.
We hold that it was not error to charge the statutory presumption. If defendant desired further elaboration on the issue of possession, he should have requested it. Instead, he made no objection, apparently relying upon the strength of his own proofs and the court's instructions to the jury that the presumption, as charged, did not relieve the State of its obligation to prove defendant's guilt of unlawful possession of a firearm beyond a reasonable doubt. The credibility of the proofs was for the jury, which could have concluded that defendant had acted as a lookout for Goins and that the guns in the car were for the use of all the occupants. We find no plain error.
Points II and III urged by defendant for reversal concern the indictment of breaking and entering the Doran car with the intent to steal. Since both defendant and the co-defendant Thomas remained in the Goins' car while Goins sought to open the car door of the Doran car, the court told the jury they were being charged as aiders ...