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State v. Bott

Decided: March 4, 1969.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
WILLIAM BOTT AND ROBERT LENOIR, DEFENDANTS-APPELLANTS



For remandment -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. Opposed -- None. The opinion of the court was delivered by Francis, J.

Francis

The Bergen County Grand Jury charged by indictment that on or about August 9, 1966 defendant Bott "unlawfully and feloniously did receive and have in his possession one 1966 Cadillac Coupe DeVille, Serial No. J6224738, valued at $6,900, the property of Theodore Unger before then feloniously stolen, taken and carried away, * * * knowing the same to have been feloniously stolen, taken and carried away contrary to the provisions of N.J.S. 2 A:139-1 * * *."

The Grand Jury by separate indictment made the same charge against the defendant Lenoir, namely that he received a Cadillac Sedan, Serial No. N6173081, valued at $5,200, knowing it to have been stolen, contrary to N.J.S. 2 A:139-1.

The defendants denied their guilt and stood trial, Lenoir on April 24, 1968 and Bott on April 29, 1968. In neither case was the jury able to reach a verdict. Thereafter, before retrial, defendants moved to dismiss the indictments on two grounds: (1) N.J.S. 2 A:139-1 is unconstitutional because violative of the Fifth Amendment of the United States Constitution, and (2) the offense of receiving a stolen automobile is a crime by reason of N.J.S. 2 A:139-3; it is indictable as such only under N.J.S. 2 A:139-3 and not under N.J.S. 2 A:139-1. The trial court denied the motion and we granted defendants' application for leave to appeal.

The constitutional issue was rejected in State v. DiRienzo, 53 N.J. 360 (1969), filed today, and requires no further discussion. We therefore turn to the second ground of attack on the indictments. For reasons to be stated the crime of receiving a stolen automobile knowing it to have been stolen is a separate and distinct offense from that covered by the general receiving stolen goods statute, N.J.S. 2 A:139-1, and is indictable only under 2 A:139-3 which deals specifically with such an act.

N.J.S. 2 A:139-1 under which defendants were indicted says:

"Any person who receives or buys any goods or chattels * * * stolen from any other person * * * whether the property was received or bought from the thief * * * or from another person * * * is guilty of a high misdemeanor.

Possession of such property within 1 year from the date of such stealing * * * shall be deemed sufficient evidence to authorize conviction, unless the accused show to the satisfaction of the jury either * * *"

(a) that the property was a gift and not received from a minor under age 16, (b) that the amount he paid represented fair and reasonable value and the property was not received from a minor under age 16, (c) that when he bought he made certain described inquiries, (d) that when he received or bought the property he reported the transaction to the specified police authorities, and that the property was not received from a minor under 16 years of age, and (e) that before receiving or buying the property from a minor under 16 years of age he first communicated with specified police authorities and obtained their approval.

The offense of receiving stolen goods appears in the Crimes Act of 1796, § 62, p. 219 (Paterson's Rev. 1800). It was there provided in general terms that any person who shall receive or buy any goods or chattels that have been stolen "knowing the same to have been stolen * * * shall be deemed guilty of a high misdemeanor * * *." (Emphasis ours.). And see, § 72, p. 279 (1847 Rev.)

In 1863 the Crimes Act was supplemented to prohibit a particular type of larceny and receiving. Chapter 53, L. 1863, made it a misdemeanor for any person to steal, rip, cut or break, with intent to steal any glass or woodwork belonging to any building, or any lead, iron, brass, copper, or any other metal etc. fixed in any building or in any private land, or for a fence to a dwelling house, or in any street or place dedicated to public use or ornament. L. 1863, c. 53, § 1, p. 71. Under subsection 3 thereof the receiving or buying of any "such article" knowing it to have been stolen was constituted a misdemeanor. It is fair to assume that the Legislature wished to treat that type of larceny and receiving as a distinct crime and punishable as a misdemeanor rather than a high misdemeanor under the broad language of the omnibus section 62 of the 1796 ...


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