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June 21, 1974


The opinion of the court was delivered by: STERN

 STERN, District Judge.

 Petitioner seeks a Writ of Habeas Corpus pursuant to the provisions of Title 28 U.S.C. ยง 2241, et seq.

 Petitioner was convicted by a jury in the Union County Court of the charge of possessing a "dangerous knife", contrary to N.J.S.A. 2A:151-41(c).

 Petitioner appealed to the Superior Court of New Jersey, Appellate Division, which affirmed Petitioner's conviction on March 2, 1973 in an opinion published at 122 N.J. Super. 552, 301 A.2d 167.

 Petitioner then brought a Petition for Certification to the Supreme Court of New Jersey, which was denied on May 2, 1973. Petitioner's application for reconsideration of the denial of Certification was in turn denied on May 29, 1973.

 Petitioner has thus exhausted the available state remedies and his Petition for a Writ of Habeas Corpus here is timely. Fay v. Noia, 372 U.S. 391, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1963).

 The Petitioner herein, Charles Ray Ebron, a high school student at the time of his arrest and a college student at the time of his trial, was arrested in an ice cream parlor about a block from his home in Summit, New Jersey, while he waited to be served a vanilla milkshake. The arresting officer observed Petitioner standing at the counter and noticed "a boy scout knife" which he described as protruding from Ebron's back pocket. It is undisputed that the knife was in a sheath, and the sheath was itself attached to Ebron's belt. The tip end of the sheath was tucked into the back pocket.

 The officer entered the store, grabbed the knife from the sheath and placed Ebron under arrest. No evidence of any violence, any attempt or any intent to commit any violence by Petitioner was proffered to the trial court. Indeed, no evidence of an intention by Ebron to commit any illegal act was offered to the jury which convicted him. Ebron was convicted solely upon his per se possession of a boy scout knife, in a sheath attached to his belt. He received a sentence of an indeterminate term at a youth reception and correction center, of which he served five months, and is currently on parole.

 N.J.S.A. 2A:151-41(c) states in relevant part:

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), 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.
(Emphasis added)

 No factual issue is raised by this petition. The only issue before this Court is Petitioner's claim that, as a matter of law, this statute which condemns the mere possession of a "dangerous knife", without further description, and permits punishment for such possession by incarceration for not more than 7 years, or by a fine of not more than $2,000.00, or both (N.J.S.A. 2A:85-6), would be unconstitutional for vagueness, unless the words, possession of a "dangerous knife", are construed to mean possession of a knife with the intent to use it in a dangerous or an unlawful manner.

 There is merit to the Petitioner's claim. What is a "dangerous knife"? How many inches must it be? What knives are permitted, and what knives are outlawed by this statute? Under what circumstances is it permissible to possess a "boy scout knife" and when does such possession become criminal?

 In his charge to the jury which convicted Ebron, the distinguished trial judge grappled with this problem and gave the following instruction to the jury:

. . .the essential elements that the State must prove beyond a reasonable doubt in order to sustain a conviction are as follows: (1) That the knife allegedly in the possession of the defendant, Mr. Ebron, at the time and place stated in the indictment and marked in evidence as S-1 is, in fact, a dangerous knife. (2) That the defendant, in fact, possessed S-1 at the time and place alleged in the indictment. And, (3) That the ...

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