State v. Brown

• Decision Date: 12 May 1961
• Docket Number: No. A--707,A--707
• Citation: 171 A.2d 15,67 N.J.Super. 450
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Clarence BROWN, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 450

67 N.J.Super. 450

171 A.2d 15

STATE of New Jersey, Plaintiff-Respondent, v. Clarence BROWN, Defendant-Appellant.

No. A--707.

Superior Court of New Jersey Appellate Division.

Argued April 17, 1961.

Decided May 12, 1961.

William C. Gotshalk, Camden, for appellant.

Stephen M. Gretzkowski, Jr., Camden, for respondent (Norman Heine, Camden County Pros., attorney, Stephen M. Gretzkowski, Jr., Legal Assistant, Camden, on the brief).

Before Judges GOLDMANN, FOLEY and LEWIS.

The opinion of the court was delivered by

LEWIS, J.A.D.

Defendant, Clarence Brown, was convicted of knowingly and unlawfully possessing divers papers, documents, slips and memoranda pertaining to the business of lottery or lottery policy, so-called, in violation of N.J.S. 2A:121--3, N.J.S.A. He was sentenced to serve not less than two nor more than three years in the New Jersey State Prison. He appeals from this conviction and sentence.

It is contended on appeal that (1) the evidence of constructive possession of lottery paraphernalia was incompetent and insufficient to support conviction; (2) the admission of such evidence found in the physical possession of others than defendant was prejudicial error; (3) objections were made to the admission of such evidence and in respect thereto the court erred when it (a) overruled timely objections, and (b) denied motions to strike the same, at the end of the State's case and at the end of the whole case; and (4) the court erred (a) when it referred to such evidence in its instructions to the jury, and (b) when it refused to charge as requested by the defendant.

The indictment of the defendant followed three simultaneous raids conducted at premises No. 7 Coleman Avenue, No. 11 Coleman Avenue, and a saloon at Coleman and Moore Avenues, Delaware Township. These properties are located in the same immediate area and for three days prior thereto were under surveillance. During that time, the police authorities abserved the defendant entering and leaving each of the premises. At the time of the raids, according to the witnesses for the State, papers, slips or memoranda pertaining to lottery were found at the three locations. Defendant pleaded not guilty and denied knowledge and possession as charged.

At No. 7 Coleman Avenue, the raiders found miscellaneous papers, two large pads and three small pads on the first floor dining room table. They saw defendant running upstairs and throwing papers in the hallway on the second floor. He was apprehended in his bedroom and slips, alleged to be numbers slips, were taken from his wallet. The defendant denied ownership of any of the papers found in the hallway and denied that any lottery slips were in his wallet. Although testimony indicated that there were various types of markings, including dates, figures and notations, on the several papers, no effort was made to ascertain in whose handwriting these markings were made. This dwelling house was owned by one Beulah Branch. Defendant had had a misunderstanding with his wife, left the homestead at No. 11 Coleman Avenue, and rented a bedroom on the second floor of No. 7 Coleman Avenue. Another boarder by the name of Mr. Godfrey Lowers also lived in the same house.

At No. 11 Coleman Avenue, the entire place was searched. In the dining room on the first floor, a number of small slips and two sheets of paper from a shorthand book, containing columns of numbers, were taken from the table and at the desk where Mrs. Pauline Brown was sitting at the time, Detective Runner found a yellow tablet paper on which were dolumns of numerals. In the rear bedroom on the second floor numbers slips were located on top of the wardrobe and in a jewel box. On a shelf of a small night table in the front bedroom Detective DiEva located a ledger which contained dates, numbers and names. Title to the premises at No. 11 Coleman Avenue is in defendant's name and he had access thereto. Mrs. Brown testified under oath that the number sheets belonged to her, and that her husband was not involved in the transaction--that 'he was against it.' She was indicted and convicted of knowingly and unlawfully possessing such papers in violation of the lottery statute. She originally pleaded not guilty on November 19, 1959, which plea was retracted, and one of Non vult entered on December 10, 1959. Subsequently, she was sentenced to the New Jersey Reformatory for Women at Clinton, and the sentence was suspended on condition that she pay a fine of $1,000.

At the saloon the State's evidence was that one David H. 'Sticky' Wilson was apprehended as he approached the entrance, and that numbers slips were discovered, one under his wristwatch and one in his pocket. He was likewise indicted under the anti-lottery statute for knowingly possessing the same, to which he pleaded Non vult. This plea was not accepted by the court (he had a conviction record) and was changed to one of not guilty. His trial was pending. In the saloon, a bartender by the name of Russell Walter Cooper had a numbers slip in his right front shirt pocket, one in his left front shirt pocket, and a slip with numerals on it was in his 'right rear pocket.' The bartender admitted that these numbers slips belonged to him, and he testified that defendant 'didn't want no numbers of anything like that going into the saloon.' Bartender Cooper was indicted for knowingly possessing said slips. His original plea of not guilty on November 19, 1959 was subsequently changed to Non vult on December 10, 1959. On December 17 1959 he received a sentence of two to three years in State's Prison which was suspended on condition that he pay a fine of $1,000. Title to the saloon was in defendant's name.

It is true, as argued in defendant's brief, that penal statutes are to be strictly construed. State v. Vanderhave, 47 N.J.Super. 483, 136 A.2d 296 (App.Div.1957), affirmed 27 N.J. 313, 142 A.2d 609 (1958); Neeld v. Giroux, 24 N.J. 224, 131 A.2d 508 (1957). This court, however, in State v. Rucker, 46 N.J.Super. 162, 167, 134 A.2d 409, 412 (App.Div.1957), certification denied 25 N.J. 102, 135 A.2d 59 (1957), in acknowledging that general principle held that 'such construction must not be unduly narrow or artificial or disregard manifest legislative intention', citing State v. Friedman, 135 N.J.L. 419, 421, 52 A.2d 416 (Sup.Ct.1947), affirmed 136 N.J.L. 634, 57 A.2d 390 (E. & A. 1948).

There are two essential elements involved in the statutory language 'knowingly possesses,' which was paraphrased in the indictment--'knowingly and unlawfully did possess.' These elements are 'knowledge' and 'possession.' Counsel for the defendant takes the position that actual physical, corporeal possession is required. In essence, he attributes to such words a meaning of actual physical, Manual possession. Such an interpretation would be too restrictive, and we are not without precedent for so concluding. In State v. Labato, 7 N.J. 137, 80 A.2d 617, 622 (1951), our Supreme Court construed the terminology of the Crimes Act, R.S. 2:147--3 (now N.J.S. 2A:121--3, N.J.S.A.) and also the comparable language in our Disorderly Persons Act, R.S. 2:202--16 (now N.J.S. 2A:170--18, N.J.S.A.), and, when considering the question of possession under these acts, stated:

"Possession's is an ambiguous term derived from the Roman law. It has variant connotations; but on well-settled principle the word is to be given a strict construction in statutes defining criminal and penal offenses. It signifies an intentional control and dominion. Bergedorff v. United States, 10 Cir., 37 F.2d 248 (1929). Animus possidendi is of the essence of possession. Such was its primary meaning under Roman law. 'Possession is the occupation of anything with the intention of exercising the rights of ownership in respect to it.' Hunter, Rom. Law 209. Under the cited statutes 'possession' imports 'corporeal possession in fact. * * * The elements of this possession are: First, the mental attitude of the claimant, the intent to possess, to appropriate to oneself; and, second, the effective realization of this attitude. Effective realization involves the relation of the claimant to other persons, amounting to a security for their noninterference, and the relation of the claimant to the material thing itself, amounting to a security for exclusive use at will. All the authorities agree that an intent to exclude others must coexist with the external facts, and must be fulfilled in the external physical facts, in order to constitute possession. * * *"

citing State v. Metz, 107 Kan. 593, 193 P. 177, 178 (Sup.Ct.1920), wherein corporeal possession was said to be 'the continuing exercise of a claim to the exclusive use of a material thing,' and the case of People v. Leavitt, 301 N.Y. 113, 92 N.E.2d 915 (Ct.App.1950), which stood for the proposition that there must be 'conscious' possession.

It is apparent from these explanatory definitions that actual physical Manual possession is not the test; a mental attitude to appropriate and an effective realization are prerequisites. In short, 'to possess' means 'to have actual control, care and management of, and not a passing control, fleeting and shadowy in its nature.' State v. Cooper, 32 S.W.2d 1098, 1099 (Mo.Ct.App.1930); United States v. Wainer, 170 F.2d 603 (7 Cir.1948); United States v. Landry, 257 F.2d 425 (7 Cir.1958). To the same effect, United States v. Malfi, 264 F.2d 147, 150 (3 Cir.1959), certiorari denied 361 U.S. 817, 80 S.Ct. 57, 4 L.Ed.2d 63 (1959); and Brown v. United States, 222 F.2d 293, 297 (9 Cir.1955). The general authorities treating the subject of possession and constructive possession are manifold; suffice the following references: 73 C.J.S., Property, § 14, pp. 197, 198, 202--204; 42 Am.Jur., Property, sec. 42, p. 219; Restatement, Law of Torts, sec. 216, p. 551; 3 Wharton's Criminal Law & Procedure, 'Gambling and Lotteries,' sec. 939, p. 66 (1957).

In the Landry case, supra, which concerned a...