State v. Campisi

• Decision Date: 11 March 1957
• Docket Number: No. A--81,A--81
• Citation: 129 A.2d 880,23 N.J. 513
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Peter CAMPISI, Defendant-Appellant.
• Court: New Jersey Supreme Court

Page 513

23 N.J. 513

129 A.2d 880

STATE of New Jersey, Plaintiff-Respondent, v. Peter CAMPISI, Defendant-Appellant.

No. A--81.

Supreme Court of New Jersey.

Argued Feb. 4, 1957.

Decided March 11, 1957.

A. Howard Finkel, Newark, argued the cause for appellant (Michael L. Mango, Newark, attorney).

C. William Caruso, Sp. Legal Asst. Prosecutor, Newark, argued the cause for respondent (Charles V. Webb, Jr., Essex County Prosecutor, Newark, attorney).

The opinion of the court was delivered by

OLIPHANT, J.

The defendant-appellant was tried and convicted in the Municipal Court of Newark on February 15, 1956, on two separate complaints, each charging a violation of the Disorderly Persons Act. Complaint No. 9037 charged that on January 22, 1956 the defendant did have in his possession a hypodermic needle in violation of N.J.S. 2A:170--77.1, N.J.S.A. Complaint No. 9024 charged that the defendant 'did use a narcotic drug, To wit heroin, as defined in Article I of Chap. 18 of Title 24 of the Revised Statutes * * * in violation N.J.S. 2A:170--8 (N.J.S.A.).' The charges in the two complaints were tried together by consent. The court suspended the sentence on the conviction for possession of the hypodermic needle and on the conviction as a narcotics user sentenced the defendant to the county penitentiary for one year, but suspended the sentence and placed him on probation for one year.

He appealed his convictions to the Essex County Court and that court convicted him on the record made below on both charges and imposed the same sentences as the municipal court had imposed.

The defendant then appealed to the Appellate Division, claiming that the municipal court erred in not dismissing both complaints at the close of the State's case, and that the County Court erred in not dismissing both complaints for insufficient evidence. The Appellate Division affirmed the convictions on both the complaints, with a dissent filed on the conviction of the defendant on the charge the defendant did unlawfully use a narcotic drug, to wit heroin.

The appellant appealed to this court and has argued the same propositions he argued before the Appellate Division as to both convictions, assuming that such was his right by virtue of the dissent in the Appellate Division. Art. VI, Sec. V, par. 1(b), Constitution 1947, and R.R. 1:2--1(b) permit an appeal to this court as a matter of right where there is a dissent in the Appellate Division. But where two separate judgments are consolidated and argued on appeal and both affirmed, the fact that there is a dissent only as to the affirmance of one of the judgments does not give the appellant the right to appeal to this court as a matter of right from the other judgment of affirmance.

The conviction and appeal of the defendant on complaint No. 9037 remained a separate and distinct criminal charge, judgment and cause for the purposes of his appeal as of right under the Constitution and the rule. When the conviction on this complaint was unanimously affirmed in the Appellate Division his appeal as of right was exhausted. He could appeal from such affirmance to this court only on certification granted under R.R. 1:10. Cf. Pangborn v. Central R.R. Co. of N.J., 18 N.J. 84, 91, 112 A.2d 705 (1955).

For these reasons the appeal from the affirmance by the Appellate Division of the conviction for the possession of a hypodermic needle on complaint No. 9037 will be dismissed with the observation that we examined the record and found the conviction supported by competent evidence. State v. Rogers, 19 N.J. 218, 116 A.2d 37 (1955); State v. Kollarik, 22 N.J. 558, 126 A.2d 875 (1956).

Turning to the affirmance of the conviction of the defendant as a narcotic user, the complaint in that cause alleges a violation of N.J.S. 2A:170--8, N.J.S.A., which provides:

'Any person who uses a narcotic drug, as defined in article 1 of chapter 18 of Title 24 of the Revised Statutes (Foods and Drugs), the uniform narcotic drug law, for a purpose other than the treatment of sickness or injury as prescribed or administered by a person duly authorized by law to treat sick and injured human beings, is a disorderly person.'

And narcotic drugs are defined in N.J.S.A. 24:18--2 as follows 'a. 'Narcotic drugs' means coca leaves, amidone, opium, marihuana, isonipecaine and every substance not chemically distinguishable from them.

'(2) 'Opium' includes morphine, codeine and heroin and any compound, manufacture, salt, derivative, mixture, or preparation of opium.'

The complaint No. 9024 specifically charged that defendant on or about the 9th or 10th day of January 1956 'did use a narcotic drug, To wit, heroin.'

The testimony is that at the time of the arrest the detectives found some white powder in the box with the hypodermic needle which, after a field test, a detective suspected to be heroin. The white powder had been sent to a chemist for a test and the final analysis would come from the chemist to whom it was sent. Somehow the chemist's report was never submitted and the only explanation by the State is that 'failure to submit the chemist's report was only an oversight.'

The proofs as to the defendant being a user of heroin was supplied by a city detective and a federal agent testifying as experts as to what they considered to be 'withdrawal symptoms' they observed in the defendant on January 22, 1956, and other characteristics of a narcotic user. The federal agent admitted that some of the symptoms might be the result of other causes and he could not testify as to diseases which might cause the same symptoms because he was not a doctor. A large part of their testimony was devoted to the technique of narcotic users and the observable physical aspects in the user. The only other testimony, which was not corroborated by others present, was that of the detective who said the defendant admitted to him that he used heroin on January 9 or 10.

The Appellate Division found and we also find that the State failed to prove the powder was heroin, and the defendant was a user of heroin. Defendant contends this was an essential of the State's burden of proof and failure to prove the allegation of the use of heroin is fatal to the affirmance of the conviction.

The majority opinion of the Appellate Division affirming the conviction proceeds on the theory that the description of the drug as heroin in the complaint was merely surplusage and that the defendant was not prejudiced by the failure of the State to prove that the powder or the drug used was heroin. The opinion seeks support for that theory in the cases of Madison v. State of Indiana, 234 Ind. 517, 130 N.E.2d 35, 36 (Sup.Ct.1955) and Berger v. United States, 295 U.S. 78, 82, 55 S.Ct. 629, 79 L.Ed. 1314 (1935).

Relying on the Berger case, they held that the defendant was not misled in the preparation of his defense by the reference to heroin since his defense was a general denial that he had ever used any narcotic drug anytime, anywhere. They further held that the charge was sufficiently specific so that in any event, after jeopardy attached, he will be protected if a second like charge is filed covering the same facts and evidence. They held...