For affirmance -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None. The opinion of the court was delivered by Francis, J.
Defendants Bird and Hock were convicted on an indictment charging them with unlawfully carrying "concealed in a vehicle, to wit, an automobile, a certain firearm, to wit, a revolver, without first having obtained the requisite permit to carry same, contrary to the provisions of N.J.S.A. 2A:151-41." Hock alone appealed to the Appellate Division where in an unreported opinion the conviction was affirmed. Thereafter he appealed directly to this Court under R.R. 1:2-1(a), now R. 2:2-1(a) (1), alleging that constitutional and other trial errors require reversal.
The statute under which the charge was laid provides:
"Except as hereinafter provided, any person who carries, holds or possesses in any automobile * * *:
(a) A pistol or revolver without first having obtained a permit to carry the same in accordance with the provisions of this chapter;
is guilty of a high misdemeanor."
N.J.S.A. 2A:151-41. Section 7 thereof, 2A:151-7, says:
"The presence of a firearm * * * in a vehicle, is presumptive evidence of possession by all persons occupying the vehicle at the time." [54 NJ Page 529] Prior to 1966 the form of the statute was somewhat different. It forbade any person to carry a revolver "in an automobile * * * or concealed on or about his clothes or person, or otherwise concealed in his possession: (a) * * * without first having obtained a permit * * *." The change in the act is called to the prosecutor's attention because the indictment used here follows an old form in that it asserts that Hock "unlawfully carried concealed in a vehicle, to wit, an automobile, a certain firearm, etc." There is no longer any need to allege concealment, if in fact there ever was any such need.*fn1 Moreover in its charge the court read the old statute and advised the jury that the State had the burden of proving beyond a reasonable doubt that the gun was concealed in the automobile in which Hock was a passenger. The allegation of
concealment in the indictment being unnecessary, it could have been treated as surplusage at the trial. Furthermore, the court by imposing in its charge the duty to prove concealment laid a greater burden of proof on the State than was necessary. But the defendant made no complaint about either the indictment or the charge, and we do not see that he was prejudiced in any way.
The testimony adduced at the trial showed that on January 8, 1967 at about 3 A.M. Officer Ferolie of the Jersey City Police Department while on motorcycle patrol, observed a 1956 Cadillac turning from one street into another street at about five miles an hour. Its trunk lid was loose and banging up and down and the exhaust or muffler noise was very loud. Two men were in the car, Bird was driving and Hock was in the right front passenger seat. At Officer Ferolie's direction, Bird pulled over to the side of the road where production of his driver's license and registration was requested. The driver's license was in order. However, the car registration certificate had expired. Moreover, although the number on the certificate was the same as that on the license plates, the registration was for a different automobile, a 1955 or 1956 Oldsmobile. In view of the motor vehicle act violations as well as the officer's suspicion that the Cadillac might be a stolen vehicle, he ordered Bird and Hock to drive to the precinct headquarters. Ferolie followed the car a short distance to the rear. On the way he saw Hock, who was in the right front seat, bend forward toward the floor for a period he estimated variously at from 3 to 7 seconds. (In cross-examining on the pretrial motion to suppress, counsel for Hock asked the officer if any thought crossed his mind when he saw Hock bend over. On receiving an affirmative answer counsel inquired as to what it was, and the officer replied that he thought something was being put under the front seat.)
On arrival at the police station with Bird and Hock, Ferolie explained the situation to the desk sergeant who told him to impound the Cadillac so that the matter of ownership
could be explored. Ferolie then took Bird outside with him while he searched the car and inventoried its contents. Such inventory is routine procedure so that a record of the contents may be made in the presence of the alleged owner. On opening the right front door the officer saw a revolver on the floor a few inches from the door and partially protruding from under the right front seat. It turned out to be a loaded .38 caliber revolver. Bird testified he saw the gun about the same time as Ferolie did. But each ...