Sullivan, Foley and Lewis. The opinion of the court was delivered by Lewis, J.A.D. Foley, J.A.D. (dissenting).
Defendant Stonewall Thomas was indicted, tried and convicted by a jury for carrying a firearm without a permit in violation of N.J.S. 2 A:151-41 which, in pertinent part, provided:
"* * * any person who carries, holds or possesses * * * on or about his clothes or person * * * or under his control in any public place or public area:
a. A pistol or revolver without first having obtained a permit to carry the same * * *;
c. * * * is guilty of a misdemeanor."
There were three witnesses; the facts are relatively uncomplicated. Defendant's brother, John Thomas, testified that on Saturday, November 25, 1967, around 5:50 P.M., he entered a liquor store at Jackson and Market Streets, Trenton; his brother remained outside. He was in the store about five minutes and upon leaving he observed his brother talking with James Smith, whom he (John) knew "from jail"; they were approximately a block away, on the sidewalk near a laundromat. The witness walked in that direction and after he had gone about a block past them, his brother ran up to him and handed him "something * * * it was a pistol." John explained:
"Well, I had a big coat on. He [defendant] said, 'Take this' and stuck it in my pocket."
At that point he turned around and saw Smith either walking or running behind the laundromat.
The witness also testified that he did not know how or when his brother obtained the weapon, it did not belong to his brother, he did not know whether Smith had a gun, and that he was unaware of the events that transpired between his brother and Smith because they occurred either while he was in the liquor store or after he had walked down the block and past his brother and Smith.
Patrolman Capasso gave evidence that in the early morning of November 26 he was dispatched to defendant's home in connection with a warrant for the arrest of defendant and his brother John who "were wanted in connection with a shooting of a James Smith." Defendant was apprehended in the house and, as they were leaving, John "was just approaching from the street" and he was placed under arrest. A search incident thereto revealed a revolver in John's coat pocket.
Defendant denied ownership of the gun. His testimony was to the effect that while his brother was in the liquor store, he met Smith on the sidewalk and an altercation ensued. In the words of defendant,
"He [Smith] shoved me. I shoved him back. He reached his hand in his pocket and pulled out a pistol. It was too close to run. I grabbed him and we had a tussle and the gun fell to the ...