Simpson, J.c.c. (temporarily assigned).
[120 NJSuper Page 504] Defendant moves to dismiss an indictment charging him with violation of N.J.S.A. 2A:151-41, carrying a pistol or revolver
without a permit. The indictment arose out of an incident that occurred while defendant was serving a subpoena, in connection with a civil action, upon one Malvern Burroughs. An altercation had taken place and cross-complaints were filed charging disorderly persons offenses of assault and battery. Burroughs was also charged with contempt of court. Although the details of the incident are not germane to the present inquiry, and there was a factual dispute concerning the appearance of the gun, this occurrence is an example of the dangers of misuse and accidental use when such weapons are carried. Siccardi v. State , 59 N.J. 545 (1971); Reilly v. State , 59 N.J. 559 (1971).
For purposes of this motion, the prosecutor and defendant's counsel stipulated the following facts:
1. That on November 12, 1971 defendant Andrew D. Nicol was a constable of the Borough of River Edge, Bergen County, New Jersey.
2. On that date defendant had a revolver in his possession.
3. Defendant did not have a permit for the revolver.
4. On the occasion in question defendant was engaged in the process of serving a subpoena upon one Malvern Burroughs in Oakland, New Jersey, in connection with a civil suit then pending in the Superior Court of New Jersey, Law Division, Bergen County, in which suit Alsan Realty Co. was plaintiff, and M. Burroughs & Son, Inc. was defendant.
5. The subpoena was issued by Donald Horowitz, attorney for plaintiff.
6. At the time and place in question defendant was not engaged in the performance of any duties for the Borough of River Edge.
7. In 1967 defendant had applied to Judge Kole for a permit to carry a revolver, and such permit was issued.
8. In 1968 defendant had applied to Judge Arnold for a permit to carry a revolver, and such permit was issued.
9. In 1969 defendant had applied to Judge Kole for a permit to carry a revolver, and such ...