State v. Butler
| Decision Date | 20 November 1970 |
| Citation | 112 N.J.Super. 305,271 A.2d 17 |
| Parties | STATE of New Jersey, Plaintiff-Respondent, v. Ralph D. BUTLER, Defendant-Appellant. |
| Court | New Jersey Superior Court — Appellate Division |
William J. Rohr, Asst. Deputy Public Defender, for appellant (Stanley C. Van Ness, Public Defender).
R. Benjamin Cohen, Asst. Prosecutor, for respondent (Joseph P. Lordi, Essex County Prosecutor).
Before Judges KILKENNY, HALPERN and LANE.
The opinion of the court was delivered by
HALPERN, J.A.D.
Defendant appeals from a denial of his application for post-conviction relief.
The undisputed facts are that when defendant was arrested in his apartment the police found 16 decks of heroin in his jacket and two packs of marihuana on the ground beneath his window which had been thrown there by defendant. He was charged in separate indictments with (a) unlawful 'possession of a narcotic drug, to wit: marijuana,' and (b) with unlawful 'possession of a narcotic drug, to wit: Heroin,' both contrary to N.J.S.A. 24:18--4. Both charges resulted from an arrest made on February 20, 1965.
Defendant pled guilty to both indictments. He was sentenced on the marihuana charge to a term of two to three years in the New Jersey State Prison, to run concurrently with a sentence he was then serving, and fined $25. He was sentenced on the heroin charge to a term of two to three years in the New Jersey State Prison, to run consecutively to the sentence imposed on the marihuana charge, and fined $25.
The principal issue presented is whether the simultaneous unlawful possession of marihuana and heroin constitutes two separate and distinct crimes under N.J.S.A. 24:18--4. We have concluded that defendant could be guilty of only one offense--namely, the unlawful possession of narcotic drugs.
For a detailed history of the Uniform Narcotic Drug Law, as adopted in New Jersey in 1933, and for a definition of the term 'possess,' see State v. Reed, 34 N.J. 554, 170 A.2d 419 (1961). At the time of the offense N.J.S.A. 24:18--4 provided:
It shall be unlawful for any person to manufacture, possess, have under his control, sell, prescribe, administer, dispense or compound any narcotic drug, except as authorized by this chapter.
Unquestionably, the Legislature has the power to proscribe two or more separate and distinct criminal acts within the same statute. Our function is to ascertain whether such was the legislative intent. State v. Juliano, 52 N.J. 232, 235, 245 A.2d 17 (1968); 4 Wharton's Criminal Law and Procedure, § 1778 at 630 (1957). Giving the language used in the statute its accepted meaning, it is obvious the Legislature intended to proscribe the acts individually set forth in the statute, I.e., to 'sell,' 'prescribe,' 'administer,' 'dispense,' 'manufacture,' 'possess,' or 'compound' any narcotic drug, except as authorized by law. The essence of the charges was the unlawful possession of heroin and marihuana--both of which are narcotic drugs as defined in N.J.S.A. 24:18--2. This single act of possession, which occurred at one time and in one place, cannot be the basis for multiple offenses. It would do violence to the Legislature's intent to say that if a person had ten different types of narcotic drugs in his possession at one time that he would be guilty of ten separate crimes. If such were the intent, the Legislature would have said so in clear language.
While the issue confronting us is novel in New Jersey, what the courts have said in analogous situations are in accord with our view. Thus, where a defendant has but a single ultimate criminal objective (in the instant case unlawful possession of narcotic drugs), only one offense is committed. See State v. La Fera, 35 N.J. 75, 91, 171 A.2d 311 (1961). One act of arson resulting in three deaths was held to be a single criminal transaction. State v. Mills, 51 N.J. 277, 289, 240 A.2d 1 (1968), cert. den. 393 U.S. 832, 89 S.Ct. 105, 21 L.Ed.2d 104 (1968). The defendant in State v. DiRienzo, 53 N.J. 360, 251 A.2d 99 (1969), was caught with goods in his possession stolen from various places; the court held his receipt of the stolen goods was but a single violation.
A case directly in point is Braden v. United States, 270 F. 441 (8 Cir. 1920), where the defendant was charged in five separate counts with having five distinct narcotic drugs in his possession at the same time. In holding that defendant could be convicted on only one count for possession the court said:
It is further contended that the sentence imposed by the trial court is excessive. This contention is based on the fact that, although defendant was convicted on four counts, the transaction upon which said four counts are based was the finding of defendant in possession on the 16th day of November, 1918, at his flat in St. Paul, Minn., of the four different drugs mentioned in counts 6, 7, 8, and 9, said drugs being morphine sulphate, cocaine, heroin, and smoking opium, all derivatives of opium except cocaine, which is a derivative of coca leaves. Counsel for the United States contend that the words 'any of the aforesaid drugs,' as used in section 8, permit him to base a count upon each drug found in the possession of the defendant although the drugs were all found at the same time and place. We do not think that any such significance can be given to the word 'any.' The use of this word simply means that, if the defendant under the required circumstances should be found in possession of any of said drugs, he would be guilty. If a person steals four horses from the barn of another, all being of different color, it would not be competent to charge the thief with four different larcenies when the horses were all taken at the same time and place. Another illustration would be the larceny of articles of merchandise from a store. If twelve articles were all taken at the same time and place, we do not think it would be competent to charge the thief with twelve different larcenies. If the test as to whether there were four different offenses arising out of the transaction in this case or only one was as stated by this court in Munson v. McClaughry, 198 Fed. 72, 117 C.C.A. 180, 42 L.R.A. (N.S.) 302, and followed in Stevens v. McClaughry, 207 Fed. 18, 125 C.C.A. 102, 51 L.R.A. (N.S.) 390, there would be no question in our opinion but that the facts in this case constituted but one offense. (at 443--444)
See also Parmagini v. United States, 42 F.2d 721 (9 Cir. 1930), cert. den. 283 U.S. 818, 51 S.Ct. 344, 75 L.Ed. 1434 (1931), and United States v. Martin, 302 F.Supp....
To continue reading
Request your trial
-
Vogel v. State
...think it would be competent to charge the thief with twelve different larcenies." This reasoning was also adopted in State v. Butler, 112 N.J.Super. 305, 271 A.2d 17 (1970), where that court held that "a single act of possession, which occurred at one time and in one place, cannot be the ba......
-
State v. Zaccagnini
...256 Ark. 693, 509 S.W.2d 809 (1974); People v. Manning, 71 Ill.2d 132, 15 Ill.Dec. 765, 374 N.E.2d 200 (1978); State v. Butler, 112 N.J.Super. 305, 271 A.2d 17 (1970). Certainly, we do not quarrel with cases like United States v. Williams, 480 F.2d 1204 (6th Cir.1973), where the court held ......
-
Cunningham v. State
...91 S.Ct. 361, 27 L.Ed.2d 269 (1970); People v. Manning- , 71 Ill.2d 132, 15 Ill.Dec. 765, 374 N.E.2d 200 (1978); State v. Butler, 112 N.J.Super. 305, 271 A.2d 17 (1970). Some courts have affirmed multiple convictions and sentences for simultaneous possession of different drugs that fall wit......
-
Tabb v. State
...320] 368, 234 N.W.2d 634 (1975). Contra, People v. Manning, 71 Ill.2d 132, 15 Ill.Dec. 765, 374 N.E.2d 200 (1978); State v. Butler, 112 N.J.Super. 305, 271 A.2d 17 (1970). Moreover, our construction of the Act is consistent with the rules for determining identity of offenses for double jeop......