For affirmance -- Chief Justice Weintraub and Justices Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None. The opinion of the court was delivered by Proctor, J.
The defendant Joseph DiRienzo was convicted by a jury in the Essex County Court under two indictments consolidated for trial charging him with illegally receiving stolen goods. N.J.S. 2 A:139-1. He was sentenced to two terms of from three to five years, to be served consecutively. He appealed, and before argument in the Appellate Division we certified the matter on our own motion.
At the trial, the evidence introduced by the State showed the following: On Tuesday, July 25, 1967, two apartments in the same building in Chatham, New Jersey were broken into, and among the items taken were a gold wrist watch belonging to Mrs. Charles Tiley and a rare coin collection belonging to Mr. Herbert Reese. The following Sunday
morning, July 30, the police arrived at the defendant's apartment in East Orange with a search warrant. The defendant and his wife were present. The stolen watch was being worn by defendant's wife, and some of the stolen coins, wrapped in tissue paper, were found inside a dresser. The defendant was arrested and taken to police headquarters. Later that morning a detective returned to defendant's apartment and removed a leather travel kit from the back seat of defendant's automobile which was parked in the rear of the building. The kit had been used by Mr. Reese to hold his coin collection.
On the following day, armed with a second search warrant, the police found in the defendant's apartment a bag with the inscription, Bank of Lebanon, Pennsylvania, a Seagram's Crown Royal bag, and a brown envelope with Mr. Tiley's initials on it, all of which belonged to Mr. and Mrs. Tiley. The brown envelope was found on the dresser; the other items were in a cardboard box among some clothing.
On the defendant's behalf, Nicholas Melillo testified that the defendant allowed him to stay at the apartment on the night of Friday, July 28. Melillo said that the next day in Newark he bought a bag with the stolen items in it from a drug addict for $35.00. He testified that he returned to defendant's apartment with the bag, was let in by the superintendent, and placed the watch on the dresser and the rest of the things in a box. The superintendent testified that he had let Melillo into the apartment on that Saturday on the defendant's prior instructions. He did not notice whether Melillo was carrying anything when he entered the apartment.
Mrs. DiRienzo, defendant's wife, testified that on Friday, July 28, she and her husband went for a long automobile ride and stayed in a motel overnight in the Delaware Water Gap area. She said they returned to the apartment on Saturday about 10:00 P.M.; that Melillo came to the door of the apartment after she had gone to bed, and told her husband that he had left some things there and he would pick them
up the next day. She explained that she was wearing the watch the next morning because she wanted to convince her husband to buy it from Melillo as a present for her. Yolanda Cuomo testified that she witnessed the police entering the apartment on four or five occasions after July 30, and that they left the apartment "in a wreck." The defendant did not take the stand.
In his charge, the trial judge instructed the jury that the State bore the burden of proving beyond a reasonable doubt that the goods were received by defendant, that they had been stolen, and that the defendant at the time he received them knew the goods had been stolen. He then read, nearly verbatim, the Receiving Stolen Property statute which is reproduced in the margin.*fn1 In explaining the effect of the statute, the judge said: "The statute in the respect that I have just alluded to merely authorizes you to convict under
the circumstances recited but, of course, it does not require you to do so. Your ultimate task is to determine on the basis of all the evidence in this case, whether or not this defendant did, in fact, receive stolen property from another, and did, in fact, know at that time that this property was stolen."*fn2 There were no objections made to the charge.
Defendant contends that the State failed to prove possession of the goods, an essential element of the crime, properly defined by the trial judge in his charge as "intentional control and dominion" over the goods. See State v. Labato, 7 N.J. 137, 148-149 (1951). This is to be distinguished from the State's burden of proving guilty knowledge, i.e., that the defendant possessed the goods knowing them to have been
stolen. "Intentional" control and dominion means merely that the defendant was aware of his possession: "One who has the physical control of a chattel with the intent to exercise such control either on his own behalf or on behalf of another is in possession of the chattel." Restatement Second, Torts § 216, comment b.
In the present case, when the police arrived at the defendant's apartment, Mrs. DiRienzo was wearing the stolen wrist watch, and some of the stolen coins were in defendant's dresser. This would certainly support a jury finding that the defendant had intentional control and dominion over the goods. See State v. Bozeyowski, 77 N.J. Super. 49, 58 (App. Div. 1962), certiorari denied, 374 U.S. 851, 83 S. Ct. 1916, 10 L. Ed. 2 d 1071 (1963).
Defendant has launched a broad-based attack on the constitutionality of N.J.S. 2 A:139-1. He contends that in authorizing a jury to infer guilty knowledge from the mere fact of possession of stolen goods, the statute contravenes due process of law and violates the fifth amendment's protection against compulsory self-incrimination.*fn3 The constitutional argument breaks down into four related parts.
A. The first argument is based on the United States Supreme Court case of Tot v. United States, 319 U.S. 463, 63 S. Ct. 1241, 87 L. Ed. 1519 (1943). In Tot, the Court held unconstitutional a statutory presumption that a gun in the possession of a defendant who had a prior record of a crime of violence, had been illegally received by him in interstate commerce, and that such receipt occurred after July 30, 1938, the effective date of the statute. In holding that there was no rational connection between possession of a gun by a defendant with a prior criminal record, and the
presumption that the gun had been received in interstate commerce after July 30, 1938, the Court said:
"Under our decisions, a statutory presumption cannot be sustained if there be no rational connection between the fact proved and the ultimate fact presumed, if the inference of the one from proof of the other is arbitrary because of lack of connection between the two in common experience. This is not to say that a valid presumption may not be created upon a view of relation broader than that a jury might take in a specific case. But where the inference is so strained as not to have a reasonable relation to the circumstances of life as we know them it is not competent for the legislature to create it as a rule governing the procedure of courts. * * * It is not too much to say that the presumptions created by the law are violent, and inconsistent with any argument drawn from experience." 319 U.S. at 467-468, 63 S. Ct. at 1245, 87 L. Ed. at 1524-1525.
The Court recognized that there was no reasonable ground for the presumption that the gun was received in interstate rather than intrastate commerce, or that its acquisition occurred after the effective date of the statute. 319 U.S. at 468, 63 S. Ct. 1241, 87 L. Ed. at 1525.
The Court in Tot cited with approval a number of cases which sustained statutory presumptions which accorded with common experience, e.g., Hawes v. Georgia, 258 U.S. 1, 42 S. Ct. 204, 66 L. Ed. 431 (1921) (fact of still on defendant's property provided prima facie evidence of defendant's knowledge of its existence); Yee Hem v. United States, 268 U.S. 178, 45 S. Ct. 470, 69 L. Ed. 904 (1925) (possession of opium gave rise to presumption that defendant knew it had been illegally imported)
The "rational connection" requirement set forth in Tot is illuminated by the two Supreme Court cases of United States v. Gainey, 380 U.S. 63, 85 S. Ct. 754, 13 L. Ed. 2 d 658 (1965) and United States v. Romano, 382 U.S. 136, 86 S. Ct. 279, 15 L. Ed. 2 d (1965), both involving prosecutions of defendants arrested at the sites of illegal stills under the federal statute requiring the registration of alcohol-distilling apparatus. In Gainey, the Court upheld the constitutionality of 26 U.S.C. § 5601(b)2 which says that in a prosecution
under § 5601(a)4 for carrying on the business of an illegal still "whenever * * * the defendant is shown to have been at the site or place where, and at the time when, the business of a distiller or a rectifier was so engaged in or carried on, such presence of the defendant shall be deemed sufficient evidence to authorize conviction, unless the defendant explains such presence to the satisfaction of the jury * * *."
In holding that there was a rational connection in common experience between the fact proved, presence at the still, and the ultimate fact presumed, participating in the business, the Court noted:
"The process of making the determination of rationality is, by its nature, highly empirical, and in matters not within specialized judicial competence or completely commonplace, significant weight should be accorded the capacity of Congress to amass the stuff of actual experience and cull conclusions from it."
In Romano, supra, the defendant who was apprehended at the site of an illegal still was prosecuted under § 5601(a) 1 for "possession, custody, or * * * control" of an illegal still. U.S.C. § 5601(b)1 permits a jury to convict for possession, custody or control on the basis of defendant's presence at the site alone. The Court held that any connection between presence and possession was too tenuous to permit a reasonable inference of guilt, and that the inference of one from the other is unconstitutionally arbitrary. 382 U.S. at 141, 86 S. Ct. at 282, 15 L. Ed. 2 d at 214. In distinguishing Gainey the Court said:
"Presence tells us only that the defendant was there and very likely played a part in the illicit scheme. But presence tells us nothing about what the defendant's specific function was and carries no legitimate, rational or reasonable inference that he was engaged in one of the specialized functions connected with possession, rather than in one of the ...