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State v. Middleton

Decided: July 7, 1976.


Fritz, Seidman and Milmed. Seidman, J.A.D. (dissenting in part).

Per Curiam

Defendant was charged in a four-count indictment with: (count 1) unlawful possession of a pistol without first having obtained a permit to carry the same (N.J.S.A. 2A:151-41(a); (count 2) possession of a firearm, having been convicted of breaking and entering and larceny, atrocious assault and battery, and murder (N.J.S.A. 2A:151-8); (count 3) carrying a pistol with the intent to use it unlawfully against another (N.J.S.A. 2A:151-56), and (count 4) assaulting a patrolman with an offensive weapon (a pistol) (N.J.S.A. 2A:90-3).

Defendant sought pretrial dismissal of the first three counts on the ground that the pistol was inoperable. The first count was dismissed with the consent of the State. The second and third counts were retained. Defendant then moved for a severance of the second count from the third and fourth counts, his position being, in effect, that to allow the joinder

to stand would prejudice him since the State would in the circumstances be allowed to place his prior criminal record before the jury whether or not he chose to take the stand. The motion was denied, the trial judge stating that he felt that as to evidence of the prior convictions a limiting instruction to the jury is sufficient. Continuing his claim of prejudice before a jury by the joinder, defendant then waived trial by jury. In the nonjury trial which followed he was found guilty on the second, third and fourth counts. On the second count he was sentenced to the State Prison for a term of two to three years. The third count was merged into the fourth count and defendant was sentenced on the fourth count to a concurrent two to three-year term for the assault with a pistol

On this appeal defendant contends that (1) "the trial judge abused his discretion when he refused to sever from the trial, count two of the indictment, possession of a firearm by a felon, thereby forcing the defendant to waive his right to trial by jury, and depriving him of a fair trial," and (2) "the motion for judgment of acquittal on count two, possession of firearm by a felon, should have been granted because the State stipulated that the pistol was inoperable."

Defendant argues that

We disagree. N.J.S.A. 2A:151-8 provides, in pertinent part, that

Any person, having been convicted in this State or elsewhere of any crime enumerated in section 2A:151-5, whether or not armed with or having in his possession any firearm or dangerous instrument enumerated in section 2A:151-5, * * * who purchases, owns, possesses or controls any firearm or any of the said dangerous instruments, is guilty of a misdemeanor.

Defendant's argument suggests a question in terms of ascertaining whether the Legislature meant, as it said, any firearm, or meant rather, any operable firearm. The dissent suggests that guidance is to be found by first reference to N.J.S.A. 2A:151-1(a) and then a synthesis which includes N.J.S.A. 2A:151-41 and State v. Morgan , 121 N.J. Super. 217 (App. Div. 1972). No such tortuous reasoning or supplied intent is necessary, for in its interdiction in N.J.S.A. 2A:151-8 of possession of "any firearm or any of the said dangerous instruments," the Legislature told us expressly that its intent was to prohibit possession of the weapons enumerated in N.J.S.A. 2A:151-5. The weapons enumerated therein specifically include "any firearm, whether or not capable of being discharged."

In People v. Jiminez , 27 Mich. App. 633, 183 N.W. 2d 853, 854 (1970) the Court of Appeals of Michigan, quoting from its opinion in People v. Bailey , 10 Mich. App. 636, 640, 160 N.W. 2d 380, 382 (1968), pointed out:

"Courts should look for reasonable rather than tortured interpretations of statutes, or exceptions thereto, so as to reflect the intent of the legislature. Sergeant v. Kennedy (1958), 352 Mich. 494, 90 N.W. 2d 447. 'Dangerous weapons', when used in the statute, should not be narrowly construed by us."

And in Barrett v. United States , 423 U.S. 212, 96 S. Ct. 498, 46 L. Ed. 2d 450 (1976), the court said:

A criminal statute, to be sure, is to be strictly construed, but it is "not to be construed so strictly as to defeat the obvious intention of the legislature." American Fur Co. v. United States, 2 Pet 358, 367, 7 L Ed 450 (1829); Huddleston v United States, 415 US, at 831, [39 L Ed 2d 782], 94 S ...

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