State v. Greene, A--469

• Decision Date: 31 July 1957
• Docket Number: No. A--469,A--469
• Citation: 134 A.2d 118,46 N.J.Super. 120
• Parties: The STATE of New Jersey, Plaintiff-Respondent, v. Dorothy GREENE, Defendant-Appellant. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 120

46 N.J.Super. 120

134 A.2d 118

The STATE of New Jersey, Plaintiff-Respondent, v. Dorothy GREENE, Defendant-Appellant.

No. A--469.

Superior Court of New Jersey.

Appellate Division.

Argued July 15, 1957.

Decided July 31, 1957.

Philip J. Mylod, Newark, argued the cause for defendant-appellant.

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

Before Judges HUGHES, PRICE and COOLAHAN.

The opinion of the court was delivered by

PRICE, J.S.C. (temporarily assigned).

Defendant Dorothy Greene was tried and convicted of violating N.J.S. 2A:151--56, N.J.S.A. The crime was alleged to have occurred on October 20, 1956. She was convicted February 7, 1957.

The statute provides in part as follows:

'Any person who * * * possesses with intent to use unlawfully against another, any instrument or weapon (specifically enumerating the weapons, including a revolver) is guilty of a high misdemeanor.'

Defendant, in appealing from the judgment of conviction, contends that (a) the indictment fails to charge a crime and (b) there was a fatal variance between the allegations of the indictment and the proofs.

Defendant's challenge is based on the fact that the indictment asserts that the intended unlawful use of the revolver was 'against divers persons to the Grand Jurors aforesaid unknown,' although the crime defined in the statute is one which envisions the possession of the weapon with intent to use it unlawfully Against another.

The contention is made by defendant that the name of the person against whom the defendant is alleged to have intended to use the revolver must be designated if conviction is sought under the statutory pprovision in question.

The State supports the conviction on the theory that the statutory provision is met so long as the indictment alleges an intent to use it against another (in this case divers persons) and that the 'divers persons' were 'unknown' to the grand jurors. It is asserted that the fact that the persons were unknown to the grand jurors is a true statement, that it is presumed to be true, and that there is nothing to indicate that the averment of want of knowledge was in fact untrue.

The court determines that the conviction should be sustained. The statute in question is set forth under the chapter which is entitled 'Weapons and Explosives.' It deals with crimes against the general public safety flowing from the unlawful manufacture, sale and possession of weapons. It is not the type of crime envisioned by N.J.S. 2A:90 et seq., N.J.S.A., entitled 'Assault and Battery,' which refers to crimes of violence against the person of another, in which case it would be requisite that the person against whom it was claimed the defendant intended to use the weapon be named.

The essential elements of the offense are the possession of the weapon and an intent to use it unlawfully against another. The indictment is not fatally defective if it fails to name or otherwise describe such other person. The identity of the intended victim is not a material part of the crime charged such as in the case of State v. White, 129 N.J.L. 200, 28 A.2d 774 (Sup.Ct.1942), affirmed 130 N.J.L. 527, 33 A.2d 815 (E. & A.1943).

Defendant relies in part on the case of State v. Smith, 89 N.J.L. 52, 97 A. 780 (Sup.Ct.1916), but that case lends no support to defendant's contention in the case at bar. There can be no doubt that if the name of a person, which name was necessary for a description of the crime, be known it must be inserted in the indictment, whereas if unknown a truthful recital of such fact is justified. The case does not hold that in an indictment charging a crime of the type presented by the case at bar the naming of an intended victim is necessary for a description of the crime.

The sole contention of defendant on this point is that the word 'another' means a separate and particular person, and that the indictment which uses the words 'divers persons to the grand jurors unknown' does not allege a crime.

Defendant concedes that if the indictment charged 'with intent to use the said weapon against 'John Doe', a person to the Grand Jurors aforesaid unknown,' it would have been satisfactory.

In view of the nature of the statutory objective involving punishment for the possession of a deadly weapon, we hold that description of the intended victim or victims as 'divers persons' is not fatal.

Ample legal justification exists for the allegation of lack of knowledge of a grand jury as to the identity of persons against whom it is alleged a defendant has the intent to use a weapon. State v. Smith, supra; State v. Faure, 98 N.J.L. 18, 119 A. 4 (Sup.Ct.1922); State v. Rappise, 3 N.J.Super. 30, 65 A.2d 266 (App.Div.1949). There is no evidence in the case at bar that this grand jury's...