State v. Thomas

¶1(dissenting). I do not disagree with the majority holding that upon the State’s proofs a prima facie showing of violation of N. J. S. 2A:151-41 was made out. Nor do I think that a question of constitutional dimensions is presented.

¶2My disagreement, stems from the majority holding that the trial court did not plainly err in failing to instruct the jury with respect to the legal concept of “possession.”

¶3*336“Possession” of the revolver was the crux of the case— not necessarily possession in the ordinary dictionary sense, see e. g., “possession,” Webster’s Seventh New Collegiate Dictionary (1967), but in legal connotation, see State v. Labato, 7 N. J. 137, 148 (1951).

¶4In Lobato it was said:

“ ‘Possession’ is an ambiguous term derived from the Roman law. It has variant connotations; but on well-settled principle the word is to be given a strict construction in statutes defining criminal and penal offenses. It signifies an intentional control and dominion. … Animus possidendi is of the essence of possession. … ‘Possession is the occupation of anything with the intention of exercising the rights of ownership in respect to it.’ … The elements of this possession are: Eirst, the mental attitude of the claimant, the intent to possess, to appropriate to oneself; and, second, the effective realization of this attitude. Effective realization involves the relation of the claimant to other persons, amounting to a security for their noninterference, and the relation of the claimant to the material thing itself, amounting to a security for exclusive use at will. All the authorities agree that an intent to exclude others must coexist with the external facts, and must be fulfilled in the external physical facts, in order to constitute possession.”

¶5The testimony of defendant, as outlined in the majority opinion, was such that had the jury been instructed in accordance with Labato it could reasonably have found (if it believed defendant) that he was not guilty of possession of the revolver within the legal meaning of the term. Absent such instructions the jury was given free rein to apply to this “ambiguous term” of “variant connotations” such definition as might appeal to the lay mind.

¶6Turning to the record: the trial judge read to the jury the indictment which charged that Thomas “did carry in a public place a certain weapon, to wit: a revolver, on or about his person without first having obtained a permit to carry the same, contrary to the provisions of New Jersey Statutes 2A :151-41.” The court then went on to say:

“You will note that it mentions the statute 151-41, which reads as follows: ‘Except as hereinafter provided, any person who carries, … in an automobile, carriage, motor vehicle or other ve*337hide, or concealed on or about his clothes or person, or otherwise concealed in his possession, … a pistol, … is guilty of a misdemeanor.’ ”1

¶7After a brief recital of the facts, in which the court observed that the testimony of defendant did not differ greatly from that of his brother, the judge then said, “the question you have to decide is whether or not he had possession. As I say, the testimony does not vary.” This was all that was said on the subject of possession.

¶8Thus, it will be seen the jury was never informed concerning the legal, and somewhat restricted, connotation of “possession” in a criminal case, where that fact is the basis of an indictment.

¶9The traditional function of the judge is to instruct the jury as to the law governing the issues to be decided by them under the facts of the particular case. The classical practice generally followed in criminal cases is for the judge to outline the applicable law, explaining and defining the offense charged, and the jury, thus being informed as to the exact law which they must decide had been or had not been violated, places its determination of the facts alongside the law and decides whether the verdict shall be guilty or not guilty. To fail to define the offense attributed to the accused and the essential elements which constitute it, is to assume that jurors are educated in the law—an assumption which no one would undertake to justify. A mandatory duty exists on the part of the trial judge to instruct the jury as to the fundamental principles of law which control the case. Among such principles is the definition of a crime, the commission of which is basic to the prosecution against the defendant. And the duty is not affected by the failure of a party to request that it be discharged. Whether, in the absence of objection, such failure constitutes plain error depends upon *338the circumstances of the particular case. State v. Butler, 27 N. J. 560, 594-595 (1958).

¶10Furthermore, the potential harm to defendant which was implicit in the failure of the judge to explain the legal meaning of possession was aggravated by the judge’s comment that the testimony of defendant did not differ greatly from that of his brother and that the testimony relevant to possession did not “vary.” Obviously the court had in mind the broad concepts of possession revealed by dictionary definitions.

¶11But, as has been noted, the Batato definition is somewhat more restricted. Under that definition defendant’s version was susceptible of an inference that momentarily and by reflex action he seized the revolver lying in the street to guard against the possibility that Smith might regain possession of it and put defendant in further jeopardy. If so, that coupled with the immediate transfer of the weapon to the brother might well have raised a reasonable doubt in the jury’s mind of defendant’s animus possidendi of which, incidentally, no mention was made in the charge.

¶12On the other hand, if the jury believed John Thomas it could reasonably have concluded that, as defendant walked a block or so to join John, ample time elapsed for him to have formed in his mind the requisite animus possidendi.

¶13Thus, I conclude that the judge’s comment equating the testimony of John to that of defendant was inaccurate and misleading. There was indeed a difference in the two versions and the inferences which could be drawn from them.

¶14I am convinced that (1) the charge as given did not fulfill the mandates of the Butler case, and (2) the issue presented was so narrow that the deficiency in the charge constituted plain error. R. R. 1:5-1 (a).

¶15I would therefore reverse.