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State v. Green

Decided: April 9, 1973.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ULIOUS LEE GREEN AND JESSE GREEN, DEFENDANTS-APPELLANTS



For affirmance in part and reversal in part -- Chief Justice Weintraub, Justices Jacobs, Hall, Mountain and Sullivan, and Judges Conford and Lewis. Opposed -- None. The opinion of the Court was delivered by Lewis, P.J.A.D., Temporarily Assigned.

Lewis

[62 NJ Page 551] Defendants Ulious Green and Jesse Green are brothers. After a joint trial before a jury, Ulious was found guilty of assault and battery on a police officer (N.J.S.A. 2A:90-4), carrying a dangerous knife (N.J.S.A. 2A:151-41(c)) and threatening life (N.J.S.A. 2A:113-8). He was sentenced to

State Prison for a term of three to five years for each offense, all terms to run concurrently. Jesse was found guilty of the first two charges and not guilty of the third. He was sentenced to the Youth Reception and Correction Center, Yardville, for two concurrent indeterminate terms.

On appeal to the Appellate Division the judgments of convictions and the sentences were affirmed. 116 N.J. Super. 515 (App. Div. 1971). This Court granted defendants' petition for certification. 60 N.J. 22 (1972).

It is here urged, as contended in substance before the Appellate Division, that: (1) defendant Ulious Green's sentence was illegal in that the sentencing judge considered arrests not followed by convictions in determining the sentences; (2) the convictions of the respective defendants for possession of a dangerous knife were the result of error; (3) the trial court's charge on threatening to kill was plainly erroneous, and (4) defendant Jesse Green was unlawfully convicted of assault and battery because the verdict was not unanimous, and all other verdicts are tainted.

Points 3 and 4 present no valid basis for a reversal and as to those issues we affirm for the reason stated by the Appellate Division (116 N.J. Super. at 523-524). In that court's opinion, the pertinent evidence before the trial court is succinctly summarized and need not be repeated for purposes of this opinion except to the extent relevant and necessary to our review of the remaining issues.

A DANGEROUS KNIFE

It appears from the record that on June 6, 1969 two security guards at a department store in Newark observed defendants in the act of shoplifting and then leaving the store. The guards immediately flagged down three detectives in an unmarked police car who together with the guards pursued defendants and within a short time overtook them. After a command to "stop" defendants fled in opposite directions but were promptly followed and apprehended. At police

headquarters a search revealed that each defendant had a knife in his pocket. The knives were admitted in evidence and submitted to the jury for inspection, but they were not produced before this Court and they are not fully described in the record. At oral argument, however, defense counsel stated that the knives were of the pocket type with a single folding blade approximately 3 1/2 inches long which would not lock when opened.

Each defendant urges that his conviction for possession of a "dangerous knife" in violation of N.J.S.A. 2A:151-41(c) should be reversed because his knife had a folding, non-locking blade and as a matter of law was not such a forbidden instrument, that the trial judge committed plain error in his charge by failing to give the jury an adequate standard for determining what is a "dangerous knife," and that he also erred in excluding testimony of defendants that they carried the knives as tools necessary for their employment.

The pertinent provisions of N.J.S.A. 2A:151-41 relating to carrying concealed weapons without a permit or identification card reads:

Except as hereinafter provided, any person who carries, holds or possesses in any automobile, carriage, motor cycle or other vehicle, or on or about his clothes or person, or otherwise in his possession, or in his possession or under his control in any public place or public area:

c. Any dangerous instrument of the kinds known as a blackjack, slung shot, billy, sandclub, sandbag, bludgeon, metal knuckles, cestus or similar leather band studded with metal for fitting on the knuckles, loose wool impregnated with metal filings, or razor blades imbedded in wood slivers, dagger, dirk, dangerous knife or knife as defined in chapter 5 of the laws of 1952 (C.2A:151-62) [forbids possession of a knife with a blade which opens automatically by hand pressure -- sometimes referred to as a "switchblade" knife], stiletto, grenade, bomb or other explosive, other than fixed ammunition, except as such person may be licensed to carry, hold or possess explosives under the provisions of Title 21 of the Revised Statutes and amendments thereto, is guilty of a high misdemeanor. [ L. 1968, c. 307, § 1; emphasis supplied]

The source of this statute reverts to L. 1905, c. 172, § 1, which made it a misdemeanor for one to carry certain stated firearms or "any stiletto, dagger or razor or any knife with a blade five inches in length or over concealed in or about his clothes or person * * *." The act also contained an omnibus clause covering any "other deadly, offensive or dangerous weapon or firearm."

The carrying concealed weapons section of L. 1922, c. 138, § 1, the precursor of N.J.S.A. 2A:151-41(c), made significant modifications. The designation "dangerous knife" replaced the phrase "knife with a blade five inches in length or over," the term "razor" was omitted and the list of specific weapons was preceded by the language "* * * of the kind known as * * *" which was substituted for the omnibus clause. Subsequent amendments retained these changes but the list of specifically prohibited weapons has been widely expanded.*fn1

It is basic in the construction of legislation that every effort should be made to harmonize the law relating to the same subject matter. Statutes in pari materia are to

be construed together when helpful in resolving doubts or uncertainties and the ascertainment of legislative intent. Such enactments are to be considered "as a homogeneous and consistent whole, giving effect to all their provisions." Watson v. Jaffe, 121 N.J. Super. 213, 214 (App. Div. 1972). See generally McCaffrey, Statutory Construction, § 44, at 83-91 (1953); 2 Sutherland Statutory Construction (3 ed. Horack, 1943), §§ 5201-5202, at 529-539.

Accordingly, reference is made to N.J.S.A. 2A:151-56 which relates to unlawful use or possession of weapons or explosives and incriminates any person who attempts to use unlawfully against another, or carries or possesses with intent to use unlawfully against another, any instruments or weapons as enumerated in N.J.S.A. 2A:151-5, "or any other dangerous or deadly instrument or weapon." The crime under this section is a high misdemeanor punishable by a fine of not more than $5,000 or by imprisonment for not more than ten years, or both. The provisions of N.J.S.A. 2A:151-5 relate to additional sentences to be imposed upon armed criminals who commit or attempt to commit stated crimes when armed with or having in their possession "any firearm, * * * or dangerous instrument of any kind, usually known as a * * * dagger, dirk, dangerous knife * * * or any object or device, whether toy or imitation, having an appearance similar to or capable of being mistaken for any of the foregoing * * *." The category of weapons stated in this section is broader than the list specified in N.J.S.A. 2A:151-41(c). Additionally, under N.J.S.A. 2A:151-57 the possession of any weapon enumerated in N.J.S.A. 2A:151-56, concealed or furtively carried on the person, is presumptive evidence of carrying, or concealing, or possession, "with intent to use the same in violation of that section."

It is thus clear that the Legislature by enacting section 41(c) intended to prohibit the naked possession of certain concealed weapons, an offense to be distinguished from similar crimes where in addition to possession there

are elements of use, attempted use or an intent to use such weapons. As to the latter crimes, the penalty is not only greater but there attaches to the fact of possession a presumption of intent to use the same in violation of the law. Section 41(c) in proscribing possession of a "dangerous knife" does not define those words but it is significant that the generic term "knife" is qualified by the word "dangerous."*fn2

In State v. Horton, 98 N.J. Super. 258 (App. Div. 1967), certif. den. 51 N.J. 393 (1968), defendant's jury conviction under N.J.S.A. 2A:151-41(c) for possession of a dangerous knife was affirmed. The knife was of the folding type with a 4 1/2 inch blade which was narrowed by honing to a sharp point. There was evidence that defendant was observed shoplifting and when he was detained he shoved a police officer to the ground and fled. Upon subsequent apprehension a struggle with the police followed during which time defendant attempted to reach into his right back pocket and, upon being subdued and searched, the knife was found in that pocket. The Appellate Division rejected defendant's argument that the statute under which he was convicted suffered the constitutional infirmity of vagueness and found that the act itself provides sufficient guidelines "by the categorization contained in it." 98 N.J. Super. at 261. It was also noted that the jurors had the knife before them and that the trial judge read to the jury the pertinent sections of the statute. In dealing with the term "dangerous knife," the reviewing court concluded that by those words, when read in the context of the statute, "it is readily seen that what the Legislature contemplated was a knife dangerous to life

or human safety; one by the use of which a fatal wound may probably or possibly be given." Id.

In a later case, which was tried without a jury on stipulated facts, the Law Division held that a folding pocketknife with a blade measuring 3 1/2 inches, found closed in defendant's pocket was not a "dangerous knife" in violation of the statute. No reason for the search was advanced and defendant was acquitted. State v. Edwards, 120 N.J. Super. 46 (Law Div. 1972). See also People v. Vaines, 310 Mich. 500, 17 N.W. 2d 729 (Sup. Ct. 1945), where an ordinary jackknife with a pointed blade 3-5/16 inches long was found not to be a "dangerous weapon per se " nor a "dangerous weapon" within the concealed weapons statute in the absence of evidence that it was used or carried for use as a weapon. Compare People v. Morris, 8 Mich. App. 688, 155 N.W. 2d 270 (Ct. App. 1967) (circumstances indicated defendant intended to use a concealed straight razor).

There are a number of reported decisions relating to dangerous weapons emanating from the courts of the District of Columbia and some of them are sufficiently analogous to merit mention. Under the District's Code, Title 22, Section 3204, a person is prohibited from carrying in public either openly or concealed on or about his person "a pistol, * * * or any deadly or dangerous weapon capable of being so concealed." A much cited case interpreting that provision is Degree v. United States, 144 A.2d 547 (D.C. Mun. Ct. App. 1958), wherein it was held that all knives are not to be considered "'deadly or dangerous weapons' as a matter of law and under all conditions." In Scott v. United States, 243 A.2d 54 (D.C. Ct. App. 1968), there was evidence that appellant and a companion, one Jessie Smith, were known to the arresting officer who observed their activities at a movie theater. When they were requested by the officer to step into the lobby ...


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