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State v. Butler

Decided: November 20, 1970.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
RALPH D. BUTLER, DEFENDANT-APPELLANT



Kilkenny, Halpern and Lane. The opinion of the court was delivered by Halpern, J.A.D.

Halpern

Defendant appeals from a denial of his application for post-conviction relief.

The undisputed facts are that when defendant was arrested in his apartment the police found 16 decks of heroin in his jacket and two packs of marihuana on the ground beneath his window which had been thrown there by defendant. He was charged in separate indictments with (a) unlawful "possession of a narcotic drug, to wit: marijuana," and (b) with unlawful "possession of a narcotic drug, to wit: Heroin," both contrary to N.J.S.A. 24:18-4. Both charges resulted from an arrest made on February 20, 1965.

Defendant pled guilty to both indictments. He was sentenced on the marihuana charge to a term of two to three years in the New Jersey State Prison, to run concurrently with a sentence he was then serving, and fined $25. He was

sentenced on the heroin charge to a term of two to three years in the New Jersey State Prison, to run consecutively to the sentence imposed on the marihuana charge, and fined $25.

The principal issue presented is whether the simultaneous unlawful possession of marihuana and heroin constitutes two separate and distinct crimes under N.J.S.A. 24:18-4. We have concluded that defendant could be guilty of only one offense -- namely, the unlawful possession of narcotic drugs.

For a detailed history of the Uniform Narcotic Drug Law, as adopted in New Jersey in 1933, and for a definition of the term "possess," see State v. Reed , 34 N.J. 554 (1961). At the time of the offense N.J.S.A. 24:18-4 provided:

It shall be unlawful for any person to manufacture, possess, have under his control, sell, prescribe, administer, dispense or compound any narcotic drug, except as authorized by this chapter.

Unquestionably, the Legislature has the power to proscribe two or more separate and distinct criminal acts within the same statute. Our function is to ascertain whether such was the legislative intent. State v. Juliano , 52 N.J. 232, 235 (1968); 4 Wharton's Criminal Law and Procedure , ยง 1778 at 630 (1957). Giving the language used in the statute its accepted meaning, it is obvious the Legislature intended to proscribe the acts individually set forth in the statute, i.e. to "sell," "prescribe," "administer," "dispense," "manufacture," "possess," or "compound" any narcotic drug, except as authorized by law. The essence of the charges was the unlawful possession of heroin and marihuana -- both of which are narcotic drugs as defined in N.J.S.A. 24:18-2. This single act of possession, which occurred at one time and in one place, cannot be the basis for multiple offenses. It would do violence to the Legislature's intent to say that if a person had ten different types of narcotic drugs

in his possession at one time that he would be guilty of ten separate crimes. If such were the intent, the Legislature would have said so in clear language.

While the issue confronting us is novel in New Jersey, what the courts have said in analogous situations are in accord with our view. Thus, where a defendant has but a single ultimate criminal objective (in the instant case unlawful possession of narcotic drugs), only one offense is committed. See State v. La Fera , 35 N.J. 75, 91 (1961). One act of arson resulting in three deaths was held to be a single criminal transaction. State v. Mills , 51 N.J. 277, 289 (1968), cert. den. 393 U.S. 832, 89 S. Ct. 105, 21 L. Ed. 2d 104 (1968). The defendant in State v. DiRienzo , 53 N.J. 360 ...


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