For affirmance in part and reversal and remandment in part -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. Opposed -- None. The opinion of the court was delivered by Proctor, J.
Defendant Arthur Humphreys, Jr. was convicted of breaking and entering with intent to steal, carrying weapons in an automobile without a permit, and unlawful possession of a narcotic drug. A codefendant, James Thomas, was convicted on the same charges; another codefendant, Roy Goins, was not tried with the other two. Humphreys alone appealed to the Appellate Division, which affirmed. 101 N.J. Super. 539 (1968). Because one judge dissented on the weapons charge, this case comes before us as of right.
On November 16, 1966, State Trooper Thomas Carr was at an observation point on the twelfth floor of the State Labor and Industry Building in Trenton, viewing the parking lot with the aid of binoculars. At about 10:30 A.M. an automobile driven by Goins entered the lot and parked. Humphreys was sitting in the passenger side of the front seat, and Thomas was in the rear. Goins left his car and examined a Buick parked nearby. After some delay, he was observed poking what appeared to be a wire coat hanger through the window of the car. The trooper then radioed a patrol car to block the parking lot exit. When another car entered the lot Goins stopped what he was doing, returned to his own car, and started to drive out of the lot when he then was intercepted by the police. An examination of the buick showed scratch marks on the rubber seal between the windows, and the door slightly ajar. When Goins' car was searched, a rolled-up wire coat hanger was discovered underneath the front seat on the passenger side, a loaded pearl-handled
.38-caliber revolver, protruding visibly, was found partly wedged between the cushions of the back seat, and a loaded .22-caliber pistol was found underneath the back seat. Marijuana seeds were discovered in the compartment between the two front seats, and an envelope containing marijuana was found under the floor mat on the driver's side. A search of Humphreys' shirt and jacket pockets produced a small quantity of marijuana.
At the end of the State's case, Humphreys moved for an acquittal of the gun possession charge, based upon a constitutional challenge to be discussed infra, which motion was denied. In his defense, Humphreys testified that he had never seen the guns or the coat hanger, had never possessed marijuana, and had no knowledge where Goins went after he left his car in the parking lot. He claimed that Goins had driven into the parking lot that morning in order to urinate.
On this appeal, Humphreys has not briefed or argued the question of the validity of his conviction of breaking and entering with intent to steal. N.J.S.A. 2 A:94-1. The record provides ample support for his conviction as an aider and abettor, acting as a lookout for Goins as he attempted to break into and steal a car. N.J.S.A. 2 A:85-14. Defendant challenges, however, his other convictions. Although the dissent in the Appellate Division concerned only the weapons charge, our practice is to permit the defendant to argue his entire case, even though only part of it comes before this court as of right. See State v. Barnes, 54 N.J. 1, 4 (1969).
Concerning the charge of unlawful possession of marijuana, the defendant claims that the quantity of the vegetable matter seized from his pockets was too small to be used, and therefore cannot come within the purview of N.J.S.A. 24:18-4. That statute makes it unlawful to "possess * * * any narcotic drug," which under N.J.S.A. 24:18-2 includes marijuana. A microscope was used in this case not to determine the presence of the substance, but to identify it. So long as qualitatively the substance seized is marijuana,
the statute does not prescribe any minimum amount which must be possessed. And it follows that this Court cannot be asked to specify what quantity of a contraband substance is sufficient to invoke criminal sanctions, so long as the presence of the substance is readily determined. Our own Appellate Division and the majority of courts in the country have reached the same conclusion. State v. McDonald, 92 N.J. Super. 448 (App. Div. 1966); State v. Young, 427 S.W. 2 d 510 (Mo. Sup. Ct. 1968); State v. Dodd, 28 Wis. 2 d 643, 137 N.W. 2 d 465 (1965); State v. Winters, 16 Utah 2 d 139, 396 P. 2 d 872 (1964); Duran v. People, 145 Colo. 563, 360 P. 2 d 132 (1961); Peachie v. State, 203 Md. 239, 100 A. 2 d 1 (1953); contra, State v. Moreno, 92 Ariz. 116, 374 P. 2 d 872 (1962); Pelham v. State, 164 Tex. Cr. R. 226, 298 S.W. 2 d 171 (1957). Line-drawing among varying quantities of marijuana is unrealistic, since the small quantity readily warrants the inference that the defendant possessed a larger usable amount, and it is the possession of the latter amount which is the ultimate triable issue in the case.
With regard to defendant's conviction of unlawful possession of a gun in an automobile, N.J.S.A. 2 A:151-41,*fn* the trial judge in his instructions to the jury read the following pertinent section of N.J.S.A. 2 A:151-7: "The presence of a firearm * * * in a vehicle is presumptive evidence of possession by all persons occupying the vehicle at the time." (emphasis added). Commenting upon this statute, the judge told the jury:
"This is a factor which you may consider in determining the guilt or innocence of the defendants charged, along with all of the other evidence in the case bearing upon this question. However, you must still be satisfied of the ...