State v. Madewell
| Decision Date | 05 September 1973 |
| Citation | 63 N.J. 506,309 A.2d 201 |
| Parties | STATE of New Jersey, Plaintiff-Respondent, v. Henry MADEWELL, Defendant-Appellant. |
| Court | New Jersey Supreme Court |
Stephen Apollo, Asst. Deputy Public Defender, for defendant-appellant (Stanley C. Van Ness, Public Defender, Trenton, attorney; Apollo, Hackensack, of counsel and on the brief).
John A. Brogan, Deputy Atty. Gen., for plaintiff-respondent (George F. Kugler, Jr., Atty. Gen., Trenton, attorney; Brogan, Belleville, of counsel and on the brief).
The indictment returned against defendant charged that he 'unlawfully and willfully did abandon' a leased motor vehicle contrary to the provisions of N.J.S.A. 2A:111--35. Following conviction by a jury in the Bergen County Court, a jail term was suspended and he was placed on probation for five years, during which time he was to make restitution and undergo medical treatment. The Appellate Division affirmed the conviction. 117 N.J.Super. 392, 285 A.2d 34 (1971). We granted certification on defendant's petition. 60 N.J. 22, 285 A.2d 563 (1972).
The full text of the cited statute, enacted as L. 1964, c. 294, § 2, and never previously considered by this court, reads:
Abandonment, sale, failure to return after demand, etc., as misdemeanor; defense
Any person who, after hiring, leasing or renting a motor vehicle under an agreement in writing, which provides for return of said vehicle to a particular place, or at a particular time, shall abandon said vehicle, Or secrete, convert, sell or attempt to sell the same or any part thereof, Or who shall fail to return the vehicle to said place within the time specified, and is thereafter personally served with a written demand, or upon whom written demand is thereafter made by registered mail, to return said vehicle to the place specified in the written agreement within 72 hours from the time of the personal service or service by registered mail of such demand, and who fails, except for causes beyond his control to return said vehicle to the lessor within said period, is guilty of a misdemeanor.
Service by registered mail shall be deemed to be complete upon deposit in the United States mail of such demand securely wrapped, postpaid and addressed to such person at the address for such person set forth in the written agreement for the hire or use thereof or in the absence of such address to such person's last known place of residence.
It shall be a complete defense to any civil action arising out of or involving the arrest or detention for a violation of this act of any person upon whom such demand was served personally or by registered mail that he failed to return the vehicle to the place specified in the rental agreement within such 72-hour period. (Emphasis supplied.)
The verdict was fully supported by the proofs and there is no contention that it was against the weight of the evidence. The jury could reasonably have found that defendant rented a car from the lessor in Bergenfield on October 31 1969 under a written agreement. While the date for return of the vehicle was left blank at the time of execution, the understanding was that he would only keep the car for a few days until the completion of repairs to his own automobile elsewhere and that, if he required it for a longer period, he would advise the lessor. The defendant was never heard from thereafter and the lessor's efforts to locate him or the vehicle were unsuccessful. A registered letter sent to him, demanding its delivery within 24 hours, was returned unclaimed. Finally, on February 19, 1970, the car was found by the local police in Fort Lee in a mechanically inoperable condition and otherwise damaged. It had been run over 4000 miles since the rental. Numerous tickets for violation of parking meter regulations had been issued against it in Fort Lee.
The defense was that the car malfunctioned while defendant was driving it in Fort Lee early in February and could not be driven further, so that he was forced to leave it, and that he thereupon called the lessor and advised what had happened and where the car could be found. The lessor denied receipt of any such phone call. The jury was not required to accept defendant's story and obviously did not.
The defendant took the legal position at trial that the statute required, to establish commission of the crime, not only proof of abandonment but also of personal or registered mail service of a demand for return within 72 hours and of failure to do so absent causes beyond the lessee's control. A charge to the jury to that effect was requested and denied. The trial judge viewed the provisions of the statute as not so interrelated and decided that it prescribed different categories of offenses so that an unresponded to demand for return was not a required element when abandonment was charged. He therefore instructed the jury, in effect, that the absence of a 72 hour demand was of no materiality and that the defendant could be convicted upon abandonment alone, which he defined. No objection was made to the definition. He also indicated that, if the defendant's story were believed there was no abandonment within the intent of the statute and he was not guilty of the offense charged.
The Appellate Division agreed with the trial court's construction of the statute and so with its instructions to the jury, correctly we think. For the reasons which that tribunal spelled out, the statute must be construed as prescribing separate categories of offenses. The first consists of two subclasses, as to both of which a criminal intent is required. One encompasses abandonment--conduct revealing intentional indifference or disregard as to whether the owner-lessor does or does not ever regain his property, coupled, of course, with a voluntary, permanent, physical relinquishment of the lessee's possession of or claim to the vehicle. It is akin to desertion in other fields of the law and was the situation in the case at bar. Defendant's contention in this court that abandonment as thus defined amounts to no more than a non-criminal breach of contract is thoroughly wrong. The other ubclass includes secretion, conversion, sale, attempted sale and the like--affirmative acts by the lessee having the intent and purpose to permanently deprive the lessor of all title and possession and to appropriate the vehicle or its proceeds to the lessee's use and benefit. The second category consists merely of failure to return the vehicle at the date fixed by the rental agreement and after service of a demand for return within 72 hours, seemingly regardless of criminal intent. (The statutory excuse of inability to do so by reason of causes beyond the lessee's control, as for example, theft of the vehicle by a third party, applies only to this second category.)
We also completely agree with the Appellate Division's conclusion that constitutional...
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