Lewis, Matthews and Mintz. The opinion of the court was delivered by Mintz, J.A.D.
Defendant was indicted for (a) forging a driver's license bearing the name James Jenkins, in violation of N.J.S.A. 39:3-38.1, and (b) uttering the same driver's license, in violation of N.J.S.A. 2A:109-1. He was tried to a jury and acquitted on the forgery count, but convicted on the charge of uttering the forged driver's license.
On appeal defendant contends that (a) the trial court erred in denying his motion for a judgment of acquittal at the conclusion of the State's case and at the close of all the evidence; (b) a prosecution for uttering a forged driver's license is not sustainable under N.J.S.A. 2A:109-1, and (c) various errors cumulatively considered constitute prejudicial error.
On July 9, 1968 defendant was operating a motor vehicle on Route 10 in East Hanover in which James Jenkins and five females were passengers. The State's case was based entirely on the testimony of Detective Scioscia and Inspector Katz of the Division of Motor Vehicles. Katz clearly established that the driver's license in the name of James Jenkins was a forgery.
Scioscia related that about 4 P.M. on July 9, 1968 he was on duty at police headquarters when defendant was brought in by two patrolmen who had stopped him on the highway. Scioscia testified that he asked defendant for identification, whereupon defendant produced the aforesaid forged driver's license. Defendant represented that he was James Jenkins, but about one hour later admitted he was Thomas A. Johnson. The State rested.
Defendant moved for a judgment of acquittal asserting that (a) there was no proof adduced indicating that he knowingly uttered a forged driver's license; (b) there was no proof that anyone was defrauded by said utterance, and
(c) a prosecution for uttering a forged driver's license is not within the purview of N.J.S.A. 2A:109-1 but is an offense which should be prosecuted under N.J.S.A. 39:1-1 et seq. (Motor Vehicle and Traffic Law). The motion was denied.
N.J.S.A. 2A:109-1 provides that:
Any person who, with intent to prejudice, injure, damage or defraud any other person:
a. Falsely makes, alters, forges or counterfeits any record or other authentic matter of a public nature or character, or any printed or written instrument or indorsement, acceptance, transfer or assignment thereof; or
b. Utters or publishes as true, any such false, altered, forged or counterfeited matter, knowing the same to be false, ...