State v. Seng
| Citation | 91 N.J.Super. 50,219 A.2d 185 |
| Decision Date | 20 April 1966 |
| Docket Number | No. A--272,A--272 |
| Parties | STATE of New Jersey, Plaintiff-Appellant, v. Harry B. SENG, Defendant-Respondent. |
| Court | New Jersey Superior Court — Appellate Division |
Joseph C. Glavin, Jr., Asst. Pros., for appellant (Brendan T. Byrne, Pros. of Essex County, attorney).
Adrian I. Karp, Newark, for defendant (Van Riper & Belmont, Newark, attorneys).
Before Judges SULLIVAN, LEWIS and KOLOVSKY.
The State appeals from orders entered by the trial court granting defendant's motion to dismiss four indictments inturned against him by the Essex County grand jury. The indictments are described in the trial court's opinion reported at 89 N.J.Super. 58, 213 A.2d 515 (Law Div.1965).
It is settled that on a motion to dismiss an indictment 'the test of validity is whether the indictment in reasonably understandable language charges the defendant with commission of the essential factual ingredients of the offense.' State v. La Fera, 35 N.J. 75, 81, 171 A.2d 311 (1961); State v. Silverstein, 41 N.J. 203, 207, 195 A.2d 617 (1963). Here, however, the trial court did not limit itself to the language of the indictment and proceeded to resolve factual questions, and this without any evidence before it.
The issue common to indictments 1018, 1019 and 1020 is whether or not a tear gas pen gun or a tear gas gun is a firearm within the meaning of the statutes referred to in the three indictments, N.J.S. 2A:151--41, 2A:151--19, 2A:151--31 and 2A:151--24, N.J.S.A. That issue is a factual issue not to be resolved on a motion to dismiss the indictment. It is an issue to be determined at the trial after evidence is adduced as to the structure and nature of the instrument and its capabilities. Cf. People v. Anderson, 236 App.Div. 586, 260 N.Y.S. 329 (App.Div.1932); Village of Barboursville ex rel. Bates v. Taylor, 115 W.Va. 4, 174 S.E. 485, 92 A.L.R. 1093 (Sup.Ct.App.1934).
Indictment 1017 charges a violation of N.J.S. 2A:144--1, N.J.S.A., relating to the possession or sale of stink bombs. In granting defendant's motion to dismiss this indictment, the court ruled that defendant's conduct fell within the statutory exception which provides:
'This section does not apply to an officer of the law in the performance of his duty, or to bombs manufactured, possessed, sold or used for the protection of life and property or for military purposes.'
The indictment should not have been dismissed. Whether defendant is protected by the quoted exception presents a factual issue to be determined on the basis of...
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...the indictment charging defendant with a violation of N.J.S.A. 2A:151--41, but would have to await trial. Cf. State v. Seng, 91 N.J.Super. 50, 52, 219 A.2d 185 (App.Div.1966).6 It is to be observed that the fact that the instrument may be inoperable will not bar a charge of possession of a ......
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