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State v. Yarusso

Decided: April 2, 1969.


On Motion to Dismiss the Indictment.

Beronio, J.c.c.


[105 NJSuper Page 312] This matter comes before the Court on defendant's motion to dismiss the indictment. Defendant was indicted for possessing a rifle contrary to the provisions of N.J.S. 2 A:151-41. It is undisputed that at the time of defendant's arrest, the instrument did not have either firing pin or bolt. By interpolating the provisions of N.J.S. 2 A:151-1 (a) and (c) which define, respectively, "firearm" and "rifle", defendant argues that he did not possess a rifle at the time of his arrest within the meaning of N.J.S.

2 A:151-41 because the weapon lacked a firing pin and bolt. Defendant refers to the general rule that penal statutes are to be strictly construed in favor of the defendant. State v. Meinken, 10 N.J. 348 (1952). He then argues that the weapon must be a rifle within the meaning of the statute at the time of his arrest and that it is immaterial that a firing pin or bolt could be obtained by him at a later time.

Defendant's argument has merit. Although research reveals no reported case in this State discussing the issue raised by defendant, there is a conflict in two decisions of the federal courts construing similar provisions of the National Firearms Act, 26 U.S.C. ยง 5801 et seq. In both cases, the question before the courts was whether a shotgun without a firing pin was a shotgun within the meaning of the Act. In United States v. Thompson, 202 F. Supp. 503 (N.D. Cal. 1962), the court, strictly construing the statute, held that the instrument was not a shotgun; while in United States v. Cosey, 244 F. Supp. 100 (E.D. La. 1965), the court, noting that a firing pin could be fashioned from an ordinary wire nail, held that the instrument was a shotgun. It should be noted in the present case that the bolt, as well as the firing pin, was missing.

As indicated in the foregoing remarks, serious substantive issues are raised by the present motion. It is elementary in a charge of unlawful possession that the State must prove beyond a reasonable doubt that (1) the thing alleged to have been unlawfully possessed is in fact that which it may be unlawful to possess and (2) that the item was in fact unlawfully possessed, actually or constructively, solely or jointly, by the defendant. However for reasons of adjective law, the substantive issues cannot be considered in the present posture of the case.

Defendant seeks to dismiss the indictment under R.R. 3:5-5(b)(1). He asserts his contention in reference to the inoperability of the rifle is a defense which is capable of determination without trial of the general issue and therefore is a defense which may be raised before trial by motion under

the cited rule. The procedural question of the applicability of the cited rule in relation to the defendant's contention is the immediate issue before this court. Since research fails to disclose any reported decision in this State precisely declarative of the scope of R.R. 3:5-5(b)(1), resort must be made to prior law and to federal rule, F.R. Crim. P. 12(b)(1), upon which our state rule is patterned.

Prior to the advent of the present rules of procedure, an indictment could be attacked before trial by two methods. A defendant could move to quash the indictment or he could demur to the indictment. A motion to quash was addressed to the sound discretion of the court. It was generally employed where the indictment was fatally defective upon its face or where it was claimed that the indictment was a nullity because it was the product of misconduct in the grand jury. The motion to quash required the court to assume the allegations to be true, except when the accused urged that he was only indicted because of misconduct. In such case defendant claimed innocence and that his indictment was an act of oppression. State v. Dayton, 23 N.J.L. 49 (Sup. Ct. 1850); O'Regan and Schlosser New Jersey Criminal Practice and Procedure, sec. 139 (1st Ed. 1938). See, State v. Chandler, 98 N.J. Super. 241 (Law Div. 1967). The motion to quash was granted only upon the clearest and plainest grounds. The motion could be denied if its granting would prejudice the State while not prejudicing the defendant who could otherwise present his contentions by way of demurrer, motion in arrest of judgment or writ of error. State v. Davidson, 116 N.J.L. 325 (Sup. Ct. 1936).

A demurrer to the indictment was a plea by way of confession and avoidance. The effect of the demurrer was to admit the truth of the factual allegations of the indictment but claim they were insufficient in law. A good example of the demurrer may be found in State v. Klapprott, 127 N.J.L. 395 (Sup. Ct. 1941). (In Klapprott, members of the German-American Bund were indicted for making

scurrilous statements about the Jewish people. Defendants demurred to the indictment upon the ground that the statutes upon which the indictment was based, N.J.S. 2: 157 B -5 and 6, were unconstitutional under both the State and federal constitutions. Defendants' contention was upheld upon appeal from an adverse trial court determination). Although a motion to quash could be employed in lieu of a demurrer, the demurrer differed in effect from the motion to quash in two important aspects. Unlike a motion to quash which was addressed to the sound discretion of the court, a demurrer well taken entitled the demurrant to a judgment in his favor as a matter of law. State v. Klapprott, supra; O'Regan and Schlosser, supra, sec. 146. Also, since the legal effect of the demurrer was that each averment well pleaded was taken as confessed to by the defendant, State v. Klapprott, supra, if the demurrer was overruled, the defendant waived trial by jury and stood convicted of the crime, unless the indictment charged a capital offense or the court, in its discretion, permitted the defendant to plead over. State v. Sharp, 75 N.J.L. 201 (Sup Ct. 1907), affirmed, 76 ...

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