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State v. Howard

Decided: July 23, 1973.

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
DANNY JENKINS HOWARD, DEFENDANT-RESPONDENT



Collester, Leonard and Halpern. The opinion of the court was delivered by Collester, P.J.A.D.

Collester

The State appeals from an order granting defendant's motion to dismiss an indictment charging him with the unlawful possession of a straight razor in violation of N.J.S.A. 2A:151-41(c).

N.J.S.A. 2A:151-41, which prohibits the carrying of dangerous weapons without a permit or identification card, provides in pertinent part that any person who carries on or about his clothes or person, or otherwise in his possession, in any public place, "(c) Any dangerous instrument of the kinds known as a * * * dagger, dirk, dangerous knife, or knife as defined in chapter 5 of the laws of 1952 [switchblade knife] * * * is guilty of a high misdemeanor." (Emphasis added).

The trial judge dismissed the indictment as a matter of law, basing his decision upon the legislative history of N.J.S.A. 2A:151-41, 2A:151-56 and 2A:151-5. He concluded that the Legislature, by deletion of the term "razor" in L. 1922, c. 138, § 1 (the precursor of N.J.S.A. 2A:151-41), intended to remove a straight razor from the list of weapons proscribed under section 41(c) of the statute.

The State contends the trial court erred in so construing the statute. The State argues here, as it did below, that a straight razor is a knife and that the question of whether it is a "dangerous knife," possession of which in a public place is forbidden by the statute, is a factual issue for determination by the jury and not by the court.

We have carefully reviewed the legislative history of the statutes involved, which have been amended and supplemented many times since the first statute, barring the carrying of concealed weapons, (the source of N.J.S.A. 2A:151-41), was enacted in 1905. That statute, L. 1905, c. 172, made it a misdemeanor for a person 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."

In 1922 the statute was amended by the enactment of L. 1922, c. 138, § 1. The term "razor" and the phrase "any knife with a blade five inches in length or over" were deleted from the weapons enumerated in the statute and the descriptive term "dangerous knife" was added. The list of the specific weapons proscribed by the statute was preceded by the language "of the kind known as," which was substituted for the omnibus clause. Subsequent amendments were enacted, none of which is here pertinent except to note that the requirement of concealed possession was eliminated and the degree of the crime was raised from a misdemeanor to a high misdemeanor.

We do not agree with the trial court's conclusion that retention of the term "razor" in N.J.S.A. 2A:151-56 and 2A:151-5 (and their predecessors) indicated a legislative intent to remove a straight razor from the weapons prohibited under N.J.S.A. 2A:151-41(c). Each section of the statute has a significantly different purpose. N.J.S.A. 2A:151-56, which was first enacted in 1912, incriminates any person who attempts to use unlawfully against another, or carries or possesses with intent to use unlawfully against another, any instrument or weapon enumerated in N.J.S.A. 2A:151-5 or any other dangerous or deadly instrument or weapon. N.J.S.A. 2A:151-5, which was enacted in 1927, provides for the imposition of an additional sentence 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 * * * razor, stiletto * * *."

In the recent case of State v. Green, 62 N.J. 547 (1973), our Supreme Court was confronted with the same argument.

In Green each defendant contended his conviction for possession of a dangerous knife should be reversed as a matter of law. They argued that the knives found in their possession were pocket knives having folding blades 3 1/2 inches in length and were not "dangerous knives" possession of which was forbidden by N.J.S.A. 2A:151-41(c). In construing N.J.S.A. 2A:151-41(c), 2A:151-56 and 2A:151-5 the court said that section 41(c) was intended to prohibit the naked possession of certain concealed weapons and that the offense was to be distinguished from similar crimes where, in addition to possession, there were elements of use, attempted use or an intent to use such weapons. The court ...


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