For reversal as to defendants Repp and Stiles -- Chief Justice Hughes and Justices Mountain, Sullivan, Pashman and Clifford. For reversal as to defendant Stiles and affirmance as to defendant Repp. -- Justice Schreiber and Judge Conford. The opinion of the Court was delivered by Sullivan, J. Justice Schreiber and Judge Conford join in the foregoing opinion except that they would direct entry of a judgment of acquittal as to defendant Repp on the ground that Repp's connection with the shotgun was so tenuous as to be insufficient as a matter of law to present a jury issue as to his possession.
[69 NJ Page 223] Defendants John Repp and Howard J. Stiles, together with Charles LaPollo, were tried by jury
and convicted on a charge of possession of a shotgun in an automobile without having first obtained a firearms purchaser identification card, a violation of N.J.S.A. 2A:151-41(b). On appeal by Repp and Stiles,*fn1 the Appellate Division reversed the judgment of conviction as to them. State v. Repp, 129 N.J. Super. 588 (App. Div. 1974). It held that the contention made at trial by LaPollo, the owner of the shotgun, that he did not need a firearms purchaser identification card because he had acquired the firearm prior to the enactment of the statute requiring the obtaining of such a card, would have constituted a defense to the charge of violating N.J.S.A. 2A:151-41(b) and that the trial court should have allowed the presentation of proofs on this point.
The Appellate Division further held that if LaPollo was not required to have a firearms purchaser identification card, then Repp and Stiles, alleged joint possessors of the same firearm, would also be protected. Accordingly, the judgment of conviction as to them was vacated and the matter remanded for a new trial. We reverse.
The evidence presented at trial may be summarized as follows:
On the evening of April 9, 1971, Horace Lederman was at work at a service station owned by Charles LaPollo. Defendants Repp and Stiles and their wives were present at the time. A noise was heard in the rear of the station. Thinking it was an attempted burglary, Lederman telephoned LaPollo, told him of the incident and said he would not continue working unless he received protection. LaPollo, who was home, left immediately for the station. When he arrived, defendants and their wives were still there. LaPollo asked Stiles for his (LaPollo's) shotgun which LaPollo had left at Stiles' apartment the night before. LaPollo had brought the gun to the apartment to use Stiles' gun-cleaning kit.
Mrs. Stiles and Mrs. Repp left in the Stiles' car to get the shotgun and bring it back to the service station. On the way to the apartment, the two women were followed by another car with three men in it. When they arrived at the apartment and Mrs. Stiles got out of the car, she was actually accosted by one of the men in the other vehicle. Mrs. Repp ran upstairs to call the police, but by the time they responded the other car had left and the police said there was nothing that could be done.
Mrs. Stiles took LaPollo's shotgun, put it in a gun case, got a bag of shells and put both the gun and the shells in the car. She and Mrs. Repp then decided to drive to the Repp apartment. Enroute they saw the car which had previously followed them parked by the police station. They returned to the service station and told their husbands what had happened. LaPollo, Repp and Stiles immediately got into the car and, with Mrs. Stiles driving, proceeded to the police station and found the other car still parked there. LaPollo, Repp and Stiles jumped out of their vehicle, ran over to the other car and threw open the doors. At this point a police officer, who was driving by, saw what was happening and stopped to investigate. Apparently his presence aborted any serious confrontation and the incident was terminated. However, when the officer walked over to the Stiles' car he noticed a shotgun barrel protruding from a gun case on the front seat. Stiles was asked to remove the gun from the car, and, while doing so, he "broke" the barrel and apparently ejected a shell from the chamber since the officer found a shotgun shell on the floor of the car. None of the men could produce a firearms purchaser identification card and they were placed under arrest.
As heretofore noted, all three, LaPollo, Stiles and Repp, were found guilty of a violation of N.J.S.A. 2A:151-41(b), which provides:
"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 ...