State v. Morgan

• Citation: 296 A.2d 539,121 N.J.Super. 217
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Robert MORGAN, Defendant-Appellant.
• Decision Date: 14 November 1972
• Court: New Jersey Superior Court — Appellate Division

Page 217

121 N.J.Super. 217

296 A.2d 539

STATE of New Jersey, Plaintiff-Respondent, v. Robert MORGAN, Defendant-Appellant.

Superior Court of New Jersey Appellate Division.

Submitted Oct. 24, 1972.

Decided Nov. 14, 1972.

Stanley C. Van Ness, Public Defender, for defendant-appellant (Carmine P. Lunetta, Designated Counsel, Morristown, on the brief).

Joseph P. Lordi, Essex County Prosecutor, for plaintiff-respondent (David L. Rhoads, Asst. Prosecutor, of counsel).

Before Judges LEWIS, CARTON and MINTZ.

The opinion of the court was delivered by LEWIS, P.J.A.D.

Defendant, after waiver of trial by jury, was tried by the Essex County Court and was found guilty of unlawful possession of a revolver in violation of N.J.S.A. 2A:151--41. He was sentenced to six months in the Essex County Correction Center and placed on probation for 12 months.

The single argument on appeal is that the revolver in question was inoperable and not a firearm as defined by N.J.S.A. 2A:151--1 and, therefore, defendant should have been acquitted.

There is no merit to this appeal. The evidence was to the effect that the firing pin of the revolver had been filed down and, in order for the gun to be fired, it would only be necessary to insert a thin piece of metal or paper between the pin and the cartridge. We also note that the revolver contained five cartridges of live ammunition within its chamber.

The element of operability stems from the definition of the term 'firearm' in N.J.S.A. 2A:151--1 as a 'revolver.' That section, in pertinent part, provides as follows:

a. Firearm or firearms includes any pistol, revolver, rifle, shotgun, machine gun, automatic and semiautomatic rifle, or other firearm as the term is commonly used, or any gun, device or instrument in the nature of a weapon from which may be fired or ejected any solid projectile, ball, slug, pellet, missile or bullet, or any gas, vapor or other noxious thing, by means of a cartridge or shell or by the action of an explosive or the igniting of flammable or explosive substances. * * *

b. Pistol or revolver includes any firearm with an overall length less than 26 inches * * *.

It may become a question of fact as to whether a particular device possesses or retains the characteristics of a firearm as thus defined. Conceivably, although having initally possessed such characteristics, it may have lost them through mutilation, destruction or disassembly. Where there appears to be a legitimate dispute as to whether any such device possesses or retains the essential characteristics of a weapon, it is appropriate for the parties to offer proof with respect to its operability. That question should be resolved as other questions of fact.

Although this is apparently an issue of first impression in this jurisdiction, State v. Yarusso, 105 N.J.Super. 311, 313, 252 A.2d 53 (Cty.Ct.1969) (issue noted but not decided), the recent decision of State v. Greer, 107 N.J.Super. 92, 257 A.2d 119 (App.Div.1969) is pertinent. There the court held the fact that the blade of a switchblade knife was bent, making the knife inoperable, did not entitle defendant to an acquittal on an indictment charging possession of a switchblade knife. Cf. State v. Schultheis, 113 N.J.Super. 11, 16, 272 A.2d 544 (App.Div.1970), certif. den. 58 N.J. 390, 277 A.2d 882 (1971).

Courts of other jurisdictions interpreting similar firearm statutes have generally concluded that a firearm is no less a firearm if it is rendered temporarily inoperable because of a missing and easily replaceable part or by need of some minor repair or adjustment. E.g., commonwealth v. Bartholomew, 326 Mass. 218, 93 N.E.2d 551, 552 (Sup.Jud.Ct.1950); United States v. Cosey, 244 F.Supp. 100, 102 (E.D....