Matthews, Fritz and Botter. The opinion of the court was delivered by Botter, J.A.D.
On this appeal we are called upon to determine whether defendant was lawfully convicted for carrying a loaded antique handgun replica without a permit, in apparent violation of N.J.S.A. 2A:151-41(a), despite the fact that N.J.S.A. 2A:151-18 exempts antique firearms from the provisions of the New Jersey Gun Control Law, N.J.S.A. 2A:151-1 et seq. Upon conviction in a jury trial, defendant was given a suspended indeterminate "Yardville" sentence, probation for three years and a fine of $1000.
The State offered evidence to show that defendant entered a tavern on the night of April 12, 1972 wearing a gun in a holster on his hip. The gun was a copy of a .44-caliber Colt cap and ball revolver of Civil War vintage. It was loaded with cap, lead ball and black powder in its six chambers. An expert later test fired the gun and found it operable.*fn1
In the tavern an off-duty police officer saw defendant wearing the gun, confronted him and called for assistance. Defendant
was arrested shortly thereafter. There was testimony that defendant said he had come from work, that he worked at an Esso gas station and that he carried the gun for protection. There was also evidence to show that defendant had no permit for the gun. Police records failed to show that the gun had been used in the commission of any crime or offense.
The sole witness for the defense was the proprietor of a licensed gun shop in Irvington, New Jersey. He testified that he sold the gun, a replica of an antique, to defendant sometime before April 12, 1972. It was inferable from his testimony that defendant had no permit when he bought the gun. Defendant finally stipulated that he had no permit to carry the gun, claiming none was necessary.
N.J.S.A. 2A:151-41 provides in pertinent part:
Except as hereinafter provided, any person who carries, holds or possesses in any * * * vehicle, or on or about his clothes or person * * * in any public place or public area:
a. A pistol or revolver without first having obtained a permit to carry the same in accordance with the provisions of this chapter; * * *
N.J.S.A. 2A:151-18 provides:
This chapter does not apply to antique firearms which are incapable of being fired or discharged or which do not fire fixed ammunition, or those manufactured before 1898 for which cartridge ammunition is not commercially available, and are possessed as curiosities or ornaments or for their historical significance or value.
In Service Armament Co. v. Hyland, 131 N.J. Super. 38 (App. Div. 1974), certif. granted 67 N.J. 80 (1975), replicas of antique firearms, in addition to real antiques, were held to be exempted from regulation by N.J.S.A. 2A:151-18. In the trial below the prosecutor conceded that when the gun was sold to defendant, ...