Arnone, J.c.c., Temporarily Assigned.
After a jury trial defendant was convicted on January 20, 1976 of robbery (N.J.S.A. 2A:141-1) while armed (N.J.S.A. 2A:151-5).
The issue here is whether the conviction for the armed feature should be allowed to stand. No motion for acquittal on this charge has been filed by defendant pursuant to R. 3:18-2. Because the issue is a novel one and in the interest of securing a just determination, the court will relax that rule, see R. 1:1-2, and consider the issue on its own motion.
Considering the proofs adduced in the light most favorable to the State, the following was elicited at trial. See State v. Kluber , 130 N.J. Super. 336, 341-342 (App. Div. 1974).
Eyewitnesses to the crime testified that on November 16, 1974 defendant went into Smitty's Bar in Asbury Park and sat at the bar for almost an hour, drinking one beer. After ordering a second beer defendant stood up with his hand in his jacket pocket and said that it was a hold-up: "I mean it." He said he wanted the money and motioned with the hand in his pocket as if he had a gun. Defendant made the victim and two other patrons go to the bathroom and sit on the floor. He hit one of the patrons in the stomach and tied
his hands with a shoestring. On cross-examination these witnesses admitted that they never saw a gun.
The jury was charged as to the armed feature statute and, in the course of its deliberations, came back asking to be recharged on this count.
Later the jury came back with the following question: "Is the hand in a coat pocket held to appear like a weapon actually considered to be a gun under this statute?" The jury was told that they were the judges of the facts. In paraphrasing the statute, the jury was instructed that the statute covers any person who takes property of another when armed with a firearm or any dangerous weapon of any kind. The jury was told that they must be satisfied beyond a reasonable doubt that the State proved there was a gun or other dangerous weapon within the definition of the statute previously given them. Upon these instructions the jury returned a verdict of guilty on the robbery and the armed feature.
To resolve the instant issue requires a review of the history of the statute in question and a determination of its applicability to this factual situation.
One of the earliest statutory pronouncements of punishment for crimes is found in L. 1898, c. 235. A check of that statute reveals no additional punishment for the conviction of crime while armed.
Such a provision was not incorporated into our laws until 1927. L. 1927, c. 321, § 2 states:
Any person who shall commit or attempt to commit any assault, robbery, larceny, burglary, or breaking and entering, when armed with, or having in his possession, any revolver, pistol, or other firearm, or other instrument of any kind known as a blackjack, slungshot, billy, sandclub, sandbag, bludgeon, metal knuckles, dagger, dirk, dangerous knife, stiletto, bomb or other high explosive, shall, in addition to the punishment provided for the crime, be punished on a first conviction by imprisonment for not more than five years; upon a second conviction for a period of not more than ten years; upon a third conviction by imprisonment ...