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State v. Nelson

Decided: April 23, 1973.

STATE OF NEW JERSEY, PLAINTIFF,
v.
CHARLIE FAY NELSON, DEFENDANT



Yanoff, J.c.c.

Yanoff

This issue arises by reason of an indictment in two counts under N.J.S.A. 2A:96-5 and 5.1 (L. 1966, c. 12).

Section 5 provides:

A person who is addicted to the use of morphine, cocaine, heroin, opium or any derivative thereof, or marihuana, and who hires, employs or uses any child under the age of 18 years to transport, carry, sell, prepare for sale or offer for sale any of said drugs for any unlawful purpose, is guilty of a high misdemeanor.

Section 5.1 provides:

A person who is not addicted to the use of morphine, cocaine, heroin, opium or any derivative thereof, or marihuana, and who hires, employs or uses any child under the age of 18 years to transport, carry, sell, prepare for sale or offer for sale any of such drugs for any unlawful purpose, is guilty of a high misdemeanor and shall be punished by imprisonment for not more than 30 years except upon the affirmative recommendations of the jury of life imprisonment in which case the punishment shall be imprisonment for life.

The Dangerous Substance Control Law (N.J.S.A. 24:21-1 et seq.) does not make provisions for these offenses.

Strangely enough, neither our research nor that of counsel has revealed any previous decision under these sections. There is apparently no similar statute in any other jurisdiction. Cf. 28 U.S.C.A. , ยง 2901 (the Narcotic Addict Rehabilitation Act of November 8, 1966).

The first count of the indictment alleges that defendant, "a person who is addicted to the use of narcotics did hire * * *" a minor to transport, etc., narcotics, in violation of section 5. The second count makes no allegation as to whether defendant is addicted, and alleges only that he "did hire * * * a child under the age of 18 years * * * to transport * * * a narcotic drug * * *," in violation of section 5.1.

Defendant moves to dismiss the indictment on due process grounds. Defendant's arguments are threefold:

1. The State must prove addiction or nonaddiction as an element of the crime. It is urged that addiction is not defined or definable; therefore defendant cannot know the nature of the charges against him, and the statute must fall, ...


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