State v. Humphreys

• Decision Date: 14 July 1969
• Citation: 255 A.2d 273,54 N.J. 406
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Arthur HUMPHREYS, Defendant-Appellant.
• Court: New Jersey Supreme Court

Page 406

54 N.J. 406

255 A.2d 273

STATE of New Jersey, Plaintiff-Respondent, v. Arthur HUMPHREYS, Defendant-Appellant.

Supreme Court of New Jersey.

Argued May 6 and 19, 1969.

Decided July 14, 1969.

Thomas Menchin, Asst. Deputy Public Defender, for defendant-appellant (Stanley C. Van Ness, Public Defender, attorney, Thomas Menchin, Newark, on the brief).

Edward J. Butrym, Asst. Prosecutor, for plaintiff-respondent (Vincent Panaro, Mercer County Prosecutor, attorney).

The opinion of the court was delivered by

PROCTOR, J.

Defendant Arthur Humphreys, Jr. was convicted of breaking and entering with intent to steal, carrying weapons in an automobile without a permit, and unlawful possession of a narcotic drug. A codefendant, James Thomas, was convicted on the same charges; another codefendant, Roy Goins, was not tried with the other two. Humphreys alone appealed to the Appellate Division, which affirmed. 101 N.J.Super. 539, 245 A.2d 40 (1968). Because one judge dissented on the weapons charge, this case comes before us as of right.

On November 16, 1966, State Trooper Thomas Carr was at an observation point on the twelfth floor of the State Labor and Industry Building in Trenton, viewing the parking lot with the aid of binoculars. At about 10:30 A.M. an automobile driven by Goins entered the lot and parked. Humphreys was sitting in the passenger side of the front seat, and Thomas was in the rear. Goins left his car and examined a Buick parked nearby. After some delay, he was observed poking what appeared to be a wire coat hanger through the window of the car. The trooper then radioed a patrol car to block the parking lot exit. When another car entered the lot Goins stopped what he was doing, returned to his own car, and started to drive out of the lot when he then was intercepted by the police. An examination of the Buick showed scratch marks on the rubber seal between the windows, and the door slightly ajar. When Goins' car was searched, a rolled-up wire coat hanger was discovered underneath the front seat on the passenger side, a loaded pearlhandled .38-caliber revolver, protruding visibly, was found partly wedged between the cushions of the back seat, and a loaded .22-caliber pistol was found underneath the back seat. Marijuana seeds were discovered in the compartment between the two front seats, and an envelope containing marijuana was found under the floor mat on the driver's side. A search of Humphreys' shirt and jacket pockets produced a small quantity of marijuana.

At the end of the State's case, Humphreys moved for an acquittal of the gun possession charge, based upon a constitutional challenge to be discussed Infra, which motion was denied. In his defense, Humphreys testified that he had never seen the guns or the coat hanger, had never possessed marijuana, and had no knowledge where Goins went after he left his car in the parking lot. He claimed that Goins had driven into the parking lot that morning in order to urinate.

On this appeal, Humphreys has not briefed or argued the question of the validity of his conviction of breaking and entering with intent to steal. N.J.S.A. 2A:94-1. The record provides ample support for his conviction as an aider and abettor, acting as a lookout for Goins as he attempted to break into and steal a car. N.J.S.A. 2A:85-14. Defendant challenges, however, his other convictions. Although the dissent in the Appellate Division concerned only the weapons charge, our practice is to permit the defendant to argue his entire case, even though only part of it comes before this Court as of right. See State v. Barnes, 54 N.J. 1, 4, 252 A.2d 398 (1969).

Concerning the charge of unlawful possession of marijuana, the defendant claims that the quantity of the vegetable matter seized from his pockets was too small to be used, and therefore cannot come within the purview of N.J.S.A. 24:18-4. That statute makes it unlawful to 'possess * * * any narcotic drug,' which under N.J.S.A. 24:18-2 includes marijuana. A microscope was used in this case not to determine the Presence of the substance, but to identify it. So long as qualitatively the substance seized is marijuana the statute does not prescribe any minimum amount which must be possessed. And it follows that this Court cannot be asked to specify what quantity of a contraband substance is sufficient to invoke criminal sanctions, so long as the presence of the substance is readily determined. Our own Appellate Division and the majority of courts in the country have reached the same conclusion. State v. McDonald, 92 N.J.Super. 448, 224 A.2d 18 (App.Div.1966); State v. Young, 427 S.W.2d 510 (Mo.Sup.Ct.1968); State v. Dodd, 28 Wis.2d 643, 137 N.W.2d 465 (1965); State v. Winters, 16 Utah 2d 139, 396 P.2d 872 (1964); Duran v. People, 145 Colo. 563, 360 P.2d 132 (1961); Peachie v. State, 203 Md. 239, 100 A.2d 1 (1953); contra, State v. Moreno, 92 Ariz. 116, 374 P.2d 872 (1962); Pelham v. State, 164 Tex.Cr.R. 226, 298 S.W.2d 171 (1957). Line-drawing among varying quantities of marijuana is unrealistic, since the small quantity readily warrants the inference that the defendant possessed a larger usable amount, and it is the possession of the latter amount which is the ultimate triable issue in the case.

With regard to defendant's conviction of unlawful possession of a gun in an automobile, N.J.S.A. 2A:151-41, ^* the trial judge in his instructions to the jury read the following pertinent section of N.J.S.A. 2A:151-7: 'The presence of a firearm * * * in a vehicle is Presumptive evidence of possession by all persons occupying the vehicle at the time.' (emphasis added). Commenting upon this statute, the judge told the jury: 'This is a factor which you may consider in determining the guilt or innocence of the defendants charged, along with all of the other evidence in the case bearing upon this question. However, you must still be satisfied of the guilt of such defendant beyond a reasonable doubt * * *.'

Later the judge charged the standard instructions with regard to the 'presumption of innocence,' and the State's burden of proof beyond a reasonable doubt of all the crimes charged. Nowhere in the charge, however, appears any definition of the concept 'possession.'

Defendant argues that N.J.S.A. 2A:151-7, which was read to the jury, is unconstitutional. His argument raises two basic questions: 1) Does the statute create an inference of one fact from another which has so little basis in common experience that it must be held to be unconstitutionally arbitrary? 2) Even if on the facts of this case such an inference might not be arbitrary, does the reading of the statute which describes 'presumptive evidence' of possession unduly prejudice the defendant by removing the burden of proof of one element of the crime from the State, or lowering the State's burden of persuasion beyond a reasonable doubt?

We have recently had occasion to discuss the proper role of an inference in State v. DiRienzo, 53 N.J. 360, 251 A.2d 99 (1969). That case concerned a constitutional challenge to N.J.S.A. 2A:139-1, the receiving stolen goods statute, which 'authorized' a conviction without direct proof of the defendant's guilty knowledge, an element of the crime which could be inferred from the fact of recent possession of stolen goods. Although this case concerns an inference of possession of an unlawful weapon from presence in an automobile, much of what was said in DiRienzo is relevant here.

With regard to the question of unconstitutional arbitrariness, we said in DiRienzo, supra, that a jury may be permitted to draw an inference if it is 'more likely than not that the facts proven point to the fact inferred.' 53 N.J. at 376, 251 A.2d at 107. The effect of the holding in DiRienzo is that inferences may be drawn from facts, and not from statutes; that on the facts of that case a jury could reasonably infer that the defendant's possession of recently stolen goods was accompanied by his guilty knowledge. A statute which purports to permit an inference of one essential fact from proof of another can have no probative force independent of the factual context in which it is applied. Id.; United States v. Gainey, 380 U.S. 63, 85 S.Ct. 754, 13 L.Ed.2d 658 (1965); United States v. Romano, 382 U.S. 136, 86 S.Ct. 279, 15 L.Ed.2d 210 (1965).

One aspect of N.J.S.A. 2A:151-7 in the present case is a legislative reminder to the trial court that the presence of an unlawful weapon in an automobile may often give rise to an inference that the occupants of the car are in possession of the weapon. Of course, whether the inference would be unconstitutionally arbitrary depends upon the facts of each case. And further, in no case could the statute prevent the trial judge from granting a motion for a judgment of acquittal, when on the facts no jury could reasonably convict. DiRienzo, supra at 377-378, 251 A.2d 99. For example, in State v. Lewis, 93 N.J.Super. 212, 225 A.2d 582 (App.Div.1966), certiorari denied, 386 U.S. 986, 87 S.Ct. 1297, 18 L.Ed.2d 238 (1967), a gun was found in a jacket on the front seat of a car in which the defendant and six others had been riding; the jacket did not belong to the defendant, who had been sitting in the back seat. The Appellate Division properly reversed the defendant's conviction for possession of the gun, holding that N.J.S.A. 2A:151-7 was inapplicable where the facts warranted a judgment of acquittal. The court said: 'Assuming that (the statute) is constitutional as applied to appropriate facts, we think it would be an unconstitutional construction to hold that under it the mere unexplained presence of a gun concealed in a coat worn by or belonging to one passenger justifies the conviction of another passenger of unlawful possession.' 93 N.J.Super. at 214, 225 A.2d at 584; see also State v. Blanca, 100 N.J.Super. 241, 249-251, 241 A.2d 647 (App.Div.1968).

In the present case, however, it may well be that the gun which was protruding...