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State v. Milano

Decided: February 26, 1979.

THE STATE OF NEW JERSEY, PLAINTIFF,
v.
FELIX MILANO, DEFENDANT



Meredith, J.s.c.

Meredith

Defendant was charged with threatening the life of William Negvesky by a telephone call to Donna Pruitt (count 1) and by telephone calls to Thomas and Michael Negvesky (count 2), in violation of N.J.S.A. 2A:113-8. At the close of the State's case defendant moved for a judgment of acquittal on the ground that evidence of a threat to kill a person, transmitted to a third party, is insufficient as a matter of law to justify a conviction under N.J.S.A. 2A:113-8. Defendant's motion raises a question that has not heretofore been addressed by the courts of this state.

N.J.S.A. 2A:113-8 provides in pertinent part:

Any person who, in public or private, by speech, writing, printing or drawing, or by any other method:

b Threatens to take or procure the taking of the life of any person --

Is guilty of a high misdemeanor * * *.

In construing this statute the courts of New Jersey have consistently looked to prior judicial interpretations of a

Maine statute, 17 M.R.S.A. § 3701, which is "essentially similar" to N.J.S.A. 2A:113-8.*fn1 State v. Kaufman , 118 N.J. Super. 472, 474 (App. Div. 1972), certif. den. 60 N.J. 467 (1972); State v. Green , 116 N.J. Super. 515 (App. Div. 1971), mod. on other grnds. 62 N.J. 547 (1973); State v. Schultheis , 113 N.J. Super. 11 (App. Div. 1971), certif. den. 58 N.J. 390 (1971).

State v. Cashman , 217 A.2d 28, 29 (Me. Sup. Jud. Ct. 1966), noted that a "threat" involves a communication which, in the context of the circumstances and the relationship between the parties, would ordinarily create fear or alarm. State v. Lizotte , 256 A.2d 439, 442 (Me. Sup. Jud. Ct. 1969), held that the essence of a "threat" is its capacity to convey menace or fear to the ordinary hearer under the circumstances, regardless of whether anyone is in fact frightened by the communication. Relying on these decisions, the New Jersey courts have construed N.J.S.A. 2A:113-8 such that (1) in order to constitute a substantive "threat" under the statute, the words must be of a nature that would convey menace or fear to an ordinary hearer under the circumstances, and (2) while an intent to menace or frighten is necessary, neither intent to carry out the threat nor the actual inducement of fear are elements of the offense. State v. Kaufman, supra 118 N.J. Super. at 474; State v. Green, supra 116 N.J. Super. at 529; State v. Schultheis, supra 113 N.J. Super. at 17; N.J. State Bar Ass'n/Institute for Continuing Legal Education, Model Jury Charges (Criminal) § 2.290 (2d Ed. 1978).

State v. Lizotte, supra , dealt only inferentially with the question now before the court. Nonetheless, it is noteworthy

that the following portion of the trial court's charge to the jury was approved by the Supreme Judicial Court of Maine, as a fair and ...


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