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State v. Kimbrough

Decided: February 17, 1970.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ROGER KIMBROUGH AND JAMES WADE, DEFENDANTS-APPELLANTS



Conford, Collester and Kolovsky. The opinion of the court was delivered by Collester, J.A.D.

Collester

[109 NJSuper Page 61] Defendants appeal from convictions following a jury trial on an indictment charging them with knowingly receiving a stolen automobile contrary to N.J.S.A. 2A:139-1. The indictment and trial of defendants was prior to State v. Bott , 53 N.J. 391 (1969), which held that a charge of receiving a stolen motor vehicle should be prosecuted for violation of N.J.S.A. 2A:139-3, a statute which does not include the evidentiary

rule (set forth in N.J.S.A. 2A:139-1) relating to the inferences of guilty knowledge to be drawn from possession of a stolen article within a year after the theft. While the indictment under N.J.S.A. 2A:139-1 was technically objectionable, it is not a ground for reversal. Ibid. , at 402-43. However, since the case was prosecuted under N.J.S.A. 2A:139-1 we are considering it on that basis.

The State's evidence, in brief, was that shortly after midnight of July 11, 1967 police officers observed a stolen car heading east on South Orange Avenue in Newark. Two police cars took up pursuit. The car stopped on South 11th Street and as one of the officers left his patrol car and approached on foot it sped away. The second patrol car followed and the fleeing vehicle stopped when it struck a curb trying to negotiate a turn at South 12th Street. Officer Minovich said he saw two men run from the car. A short time later the defendants were found hiding in the cellar of a nearby house. Officer Colalillo, who had approached the car on foot at South 11th Street, identified defendants at the trial as the two men he saw in the car. He said Wade was the driver and Kimbrough was a passenger.

Defendants denied the crime charged. They testified they were passengers in the car which was driven by a man named Glenn and that they had no knowledge the car had been stolen until Glenn so advised them while the car was being pursued by the police. Kimbrough said he met Glenn at the Park Lounge bar earlier in the evening and became a passenger in the car when Glenn offered to drive him to South Orange. Wade testified he met Kimbrough and Glenn outside the Park Lounge and entered the car when Glenn agreed to drive him to the Glitter Club, another Newark bar. Both defendants said they ran away after the car struck the curb because they were afraid they would be charged with stealing it.

They testified that after their arrest they told the police that Glenn was the driver. This was denied by the police, who said Wade told them Kimbrough was driving the car.

I

Defendants contend the trial court erred when it refused to instruct the jury as to the meaning of the word "possession," within contemplation of N.J.S.A. 2A:139-1, necessary to give rise to the inference of guilty knowledge provided for in the statute, particularly since it is undisputed that a driver-passenger relationship was involved. Their defense was that they were merely passengers in a stolen car driven and possessed by Glenn, while the State contended there was no third party in the car but that Wade was the driver and Kimbrough the sole passenger. They argue that under either version of the facts the court erred when it refused to definitively instruct the jury as to the meaning of possession within contemplation of the statute or to inform the jury that there is a distinction regarding what constitutes possession as between the driver of an automobile and a mere passenger.

The State concedes that the court did not expressly define the term "possession" necessary to trigger the statutory inference of guilty knowledge. However, it argues that the charge adequately apprised the jury of the applicable law, particularly since the court charged the jury that if it believed the explanation given by defendants was reasonable, they were to be acquitted.

In charging the jury the trial judge read N.J.S.A. 2A:139-1 in its entirety. In doing so he advised the jury that proof of possession of a stolen motor vehicle within a year from the date of the theft was sufficient evidence to authorize conviction of the defendants unless they proved to the jury's satisfaction that their possession arose under one of the five examples innocent acquisition described in the statute and that "the statute does not preclude a defendant from presenting other defenses or explanations as to his or their possession of the alleged stolen property." He also told the jury that "the statute creates a permissive presumption of guilty knowledge on the part of the defendant from the mere possession of the stolen goods within the specified period."

The crime of receiving stolen property under N.J.S.A. 2A:139-1 requires proof of three things to establish guilt: (1) the property was stolen, (2) the accused received it, and (3) at the time he received it, he knew it was stolen. "Receiving" envisages possession or control as an essential element. State v. Bozeyowski , 77 N.J. Super. 49, 57 (App. Div. 1962), cert. den., 374 U.S. 851, 83 S. Ct. 1916, 10 L. Ed. 2d 1071 (1963). Possession signifies intentional control and dominion. Actual physical possession is not a requisite of receiving -- it may be constructive. Ibid. One has possession as soon as he intentionally obtains a measure of control or dominion over the custody of the stolen property even though physical possession is in another. If proof of possession of stolen property within one year from the date of the theft is established the jury is permitted to infer that ...


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