Sawran v. Lennon

• Decision Date: 21 November 1955
• Docket Number: No. A--35,A--35
• Citation: 118 A.2d 10,19 N.J. 606
• Parties: William SAWRAN and Franklin Spangenberg, Plaintiffs-Respondents, v. Francis J. LENNON and Marco S. Busnardo, Defendants-Appellants.
• Court: New Jersey Supreme Court

Page 606

19 N.J. 606

118 A.2d 10

William SAWRAN and Franklin Spangenberg, Plaintiffs-Respondents, v. Francis J. LENNON and Marco S. Busnardo, Defendants-Appellants.

No. A--35.

Supreme Court of New Jersey.

Argued Oct. 24, 1955.

Decided Nov. 21, 1955.

David D. Furman, Deputy Atty. Gen., argued the cause for appellants (Grover C. Richman, Jr., Atty. Gen., Saul N. Schechter, Belvidere and Lewis S. Beers, Phillipsburg, on the brief).

John H. Pursel, Phillipsburg, argued the cause for respondents (Joseph V. DeMasi, Phillipsburg, attorney).

The opinion of the court was delivered by

VANDERBILT, C.J.

The plaintiffs obtained a judgment in the Warren County District Court directing the defendants to return to them their two hunting rifles which were confiscated by the defendant Busnardo, a fish and game warden, and which are now in the possession of the defendant Lennon, as Sheriff of Warren County. The defendants appealed to the Appellate Division of the Superior Court and we certified the matter on our own motion while pending there.

On September 15, 1953 the plaintiffs were apprehended by the defendant Busnardo. At the time of their apprehension the plaintiffs were seated in an automobile that was parked in a field near Oxford, New Jersey. Lying on the back seat of the car were the two rifles in question--one a Winchester Model 70--270 cal. equipped with a Bausch and Lomb scope belonging to the plaintiff Spangenberg; the other, a Remington Model 760--30--06 cal. equipped with a Weaver K--4 scope, belonging to the plaintiff Sawran. The weapons were not loaded, but there was also found in the car a box containing eight 30--06 caliber silver-tipped rifle cartridges, which was ammunition for the rifle owned by Sawran. No ammunition was found for the rifle of Spangenberg.

The warden took the two rifles and requested the plaintiffs to follow him to police headquarters at Washington, New Jersey. After questioning they were taken before the municipal magistrate of the Municipal Court of Independence and Mansfield Townships, where civil complaints were prepared charging each of them with hunting deer out of season, Sawran with the possession of an illegal missile, and Spangenberg with the illegal possession of wild deer.

On September 16, 1953 both plaintiffs signed a statement which set forth that on September 15, 1953 they were target practicing on Sawran's property on the lower end of Buckley Avenue in Oxford, using the weapons in question, and both shot at a doe deer and killed her; that they took the deer to a quarry hole, skinned and butchered her, dropped the remains, hide and head, into the quarry hole and put the carcass into Spangenberg's freezer. Half of the deer, it is said, belonged to Sawran but since he had no place to keep it, Spangenberg stored it in his freezer.

We pause to point out that none of the details of the fortuitous coincidence of a doe deer being on the plaintiff's target range are set forth in their statements; nor are we told how it happened that the plaintiffs were apprehended for their acts after they had butchered and dressed the venison and had stored it in the freezer; nor is there any indication that the plaintiffs were deprived in any way of the benefit of then prize.

Both plaintiffs pleaded guilty to the complaints and were each penalized $200 and costs. The record of the judgments introduced in the trial court shows that Sawran was found guilty by the municipal magistrate of hunting with an illegal missile in violation of N.J.S.A. 23:4--44 and also for unlawfully hunting for wild deer with firearms out of season under N.J.S.A. 23:4--42. The conviction against Spangenberg was for unlawfully having in his possession a wild deer out of season in violation of N.J.S.A. 23:4--43 and also for unlawfully hunting for wild deer with firearms out of season under N.J.S.A. 23:4--42.

It appears that the warden who seized the two weapons informed the plaintiffs that he would hold the rifles for 15 days and would then return them, but nevertheless he continued to hold the weapons. After about a year had gone by, Spangenberg went to see the chief warden at Hackettstown, who informed him that the two rifles would never be returned and that they had in fact been confiscated and turned over to the sheriff. A written demand was made upon the sheriff for the return of the weapons and his refusal to accede to the demand resulted in this suit.

There are several sections of the Fish and Game Law involved here. N.J.S.A. 23:4--42 provides in substance that no person shall hunt for, shoot at, wound or kill a deer except during the period from December 12 to December 16, or during such further period as may be permitted under the Fish and Game Code; N.J.S.A. 23:4--43 provides in substance that no person shall have in his possession a wild deer out of the season provided therefor; N.J.S.A. 23:4--44 provides that unless otherwise prescribed by the Fish and Game Code, no person engaged in hunting for wild deer shall use or carry a rifle of any kind or description, or any firearms or shotgun of smaller caliber than 12-gauge, or load such firearm or shotgun with a bullet or other missile larger than that commonly known as buckshot; N.J.S.A. 23:4--48 provides the penalties for violations of the foregoing sections and states in substance that any person hunting for, pursuing, shooting at, taking, killing, wounding, having in possession in this State, or attempting to perform any of these acts or violating any of the other provisions of this article, 'shall be liable to a penalty of one hundred dollars ($100.00) for each offense, and, whether or not he has been prosecuted for a penalty for the violation, shall be guilty of a misdemeanor.'

The section of the statute under which the defendants attempt to justify their confiscation of the weapons of the plaintiffs is not a part of Title 23 dealing with fish and game laws, but N.J.S. 2A:151--16, N.J.S.A., which provides as follows:

'Property rights in firearms; forfeiture

'No property right exists in firearms unlawfully possessed, carried or used, and all such firearms are declared to be nuisances and forfeited to the state. When such forfeited firearms are taken from any person, they shall be surrendered to the sheriff of the county in which taken, or to the head of the police department in municipalities, or to the office of the county prosecutor. If any such firearms are found to be the property of an innocent owner, they shall be returned to him if and when no longer needed for evidential purposes.'

The defendants' contention is that since the plaintiffs pleaded guilty to violating the Fish and Game Laws and used the rifles in perpetrating their offenses, they were, therefore, 'unlawfully possessed' of the rifles and they were subject to forfeiture under N.J.S. 2A:151--16, N.J.S.A.

The issue before us is, therefore, whether or not the acts committed by the plaintiffs for which they were penalized by the municipal magistrate constitute such unlawful possession, carriage or use of firearms as is contemplated by N.J.S. 2A:151--16, N.J.S.A.

The answer to this question depends on whether the statute related to 'firearms unlawfully possessed, carried or used,' in connection with crimes, or whether it also includes 'firearms unlawfully possessed, carried or used' in connection with the many offenses less than crimes known to our law.

There is considerable confusion in our law, both statutory and decisional, as to the nature of the various kinds of public wrongs which fall short of constituting crimes and as to the sanctions by which the law seeks to prevent them, on the one hand, and crimes on the other. Crimes are readily distinguished from all other public offenses by the fact that indictment by a grand jury is a constitutional prerequisite to proceedings to punish the defendants therefor. Const.1947 Art. I, par. 8, as is trial by jury, Idem. Art. I, par. 9, unless waived by the defendant, but the classes of offenses against the public other than crimes differ markedly from each other. Thus disorderly conduct, N.J.S. 2A:169--1 to 2A:170--96, N.J.S.A., a class of offenses which has grown extensively over the years, State v. Maier, 13 N.J. 235, 99 A.2d 21 (1953) (especially II, pp. 251--260 and pp. 29--35 respectively) has always been deemed quasi-criminal in nature but not strictly criminal, and is punishable summarily without indictment or trial by jury by Fines or imprisonment, or both. These offenses find their origin in statutes as above set forth, or in ordinances adopted pursuant to statute. Paul v. Gloucester, 50 N.J.L. 585, 15 A. 272, 1 L.R.A. 86 (E. & A.1888); Sherman v. Paterson, 82 N.J.L. 345, 82 A. 889 (Sup.Ct.1912); Fred v. Mayor and Council, Old Tappan Borough, 10 N.J. 515, 519 (1952); 6 McQuillan Municipal Corporations (3rd ed.), chaps. 23, 24.

Suits for penalties, however, though originating in the same way by statutes. Wilentz v. Hendrickson, 133 N.J.Eq. 447, 33 A.2d 366 (Ch.1943), affirmed 135 N.J.Eq. 244, 38 A.2d 199 (E. & A.1944); cf. St. Louis I.M. & S.R. Co. v. Williams, 251 U.S. 63, 66, 40 S.Ct. 71, 64 L.Ed. 139 (1919), or in ordinances adopted pursuant to appropriate statutes, Johnson v. Barclay, 16 N.J.L. 1 (Sup.Ct.1837); Brophy v. Perth Amboy, 44 N.J.L. 217 (E. & A. 1882), are neither criminal nor quasi-criminal in nature but civil. Such offenses are punishable, as the name implies, by Penalties, Johnson v. Barclay, supra; Minard v. Dover, etc., 76 N.J.L. 132, 68 A. 910 (Sup.Ct.1908); State v. Lakewood Market Co., 84 N.J.L. 512, 88 A. 194 (Sup.Ct.1913); State Board of Med. Examiners v. Curtis, 94 N.J.L. 324, 110 A. 816 (Sup.Ct.1920) (but not, as in cases of disorderly conduct, by fines) and in appropriate cases by corporal imprisonment. R.R. 7:13--11; R.R. 7:13--14(c). Penalty actions, moreover, unlike fines in criminal cases and in proceedings against disorderly persons, may involved sanctions which may enure to the...