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State v. Kay

June 13, 1977

STATE OF NEW JERSEY, PLAINTIFF,
v.
LYMAN BUD KAY, DEFENDANT



Imbriani, J.c.c.

Imbriani

This case raises the interesting question of whether operation of an automobile involved in a motor vehicle offense may be presumed or inferred from ownership.

This is an appeal from a conviction of leaving the scene of an accident. N.J.S.A. 39:4-129. A stenographic record having been made in the municipal court, the matter was heard de novo on the record. R. 3:23-8(a).

The factual setting is familiar. In the darkness of early morning hours a two-car accident occurred. One vehicle sped away. A chase ensued. Realizing that he would never catch up, the pursuing vehicle discontinued the chase, but not before he noted the fleeing vehicle was a green Thunderbird, approximately 1971 or 1972, and bore license plate number NLK 5-2.

A look-up disclosed that a 1971 Ford, two-door Thunderbird, bearing license plate number 5-2 NLK, was registered in the name of defendant.

On direct examination the victim identified defendant as the driver of the other car. But on cross-examination when pressed: "Can you honestly say without a doubt that this is the man that was operating that vehicle, that night?" he responded, "No Sir, I can't lie, I cannot."

The victim's wife, a passenger, testified that she was the one who actually noted the license plate number. She testified that the fleeing driver was a "male," but she could not identify him.

Defendant neither took the stand nor offered any witnesses or evidence on his own behalf.

Defendant argues that he cannot be convicted of leaving the scene of an accident solely upon proof that he was the

owner of the fleeing automobile. He concedes that such proof is sufficient in a civil case, Mahan v. Walker , 97 N.J.L. 304 (E. & A. 1921), but posits that in a criminal case such evidence is insufficient to satisfy the requirement that guilt be proven beyond a reasonable doubt. See State v. Bucich , 134 N.J. Super. 111 (App. Div. 1975). He says we cannot presume that the owner of an automobile involved in an accident was the driver and, under the facts presented here, neither can such an inference be drawn.

This court knows of no presumptions in criminal causes created by judicial fiat. Many are born from statutes. See Yee Hem v. United States , 268 U.S. 178, 45 S. Ct. 470, 69 L. Ed. 904 (1925), holding that possession of opium permits statutory presumption of knowledge it was illegally imported; United States v. Gainey , 380 U.S. 63, 85 S. Ct. 754, 13 L. Ed. 2d 658 (1965), holding that presence at the site of an illegal still permits statutory presumption that defendant was engaged in the business of a distiller; and State v. Benjamin Curtis , 148 N.J. Super. 235 (App. Div. 1977), holding that, upon a charge of tampering with an electric meter, a statutory presumption that the tampering was done by the person receiving electricity through such tampered meter is permissible.

But there is no statute in New Jersey which creates a presumption that in motor vehicle or other criminal offenses operation of a motor vehicle arises from proof of ownership. Nor does the court believe that such a presumption can fairly and constitutionally be ...


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