State v. Bott
State v. Bott
Opinion of the Court
The opinion of the court was delivered by
The Bergen County Grand Jury charged by indictment that on or about August 9, 1966 defendant Bott “unlawfully and feloniously did receive and have in his possession one 1966 Cadillac Coupe DeVille, Serial No. J6224738, valued at $6,900, the property of Theodore Unger before then feloniously stolen, taken and carried away, * * * knowing the same to have been feloniously stolen, taken and carried away contrary to the provisions of N. J. S. 2A:139-
The Grand Jury by separate indictment made the same charge against the defendant Lenoir, namely that he received a Cadillac Sedan, Serial No. N6173081, valued at $5,200, knowing it to have been stolen, contrary to N. J. S. 2A:139—1.
The defendants denied their guilt and stood trial, Lenoir on April 24, 1968 and Bott on April 29, 1968. In neither case was the jury able to reach a verdict. Thereafter, before retrial, defendants moved to dismiss the indictments on two grounds: (1) N. J. S. 2A:139-1 is unconstitutional because violative of the Eifth Amendment of the United States Constitution, and (2) the offense of receiving a stolen automobile is a crime by reason of N. J. S. 2A:139-3; it is indictable as such only under N. J. S. 2A:139-3 and not under N. J. S. 2A:139—1. The trial court denied the motion and we granted defendants’ application for leave to appeal.
N. J. S. 2A:139-1 under which defendants were indicted says:
“Any person who receives or buys any goods or chattels * * * stolen from any other person * * * whether the property was received or bought from the thief * * * or from another person * * * is guilty of a high misdemeanor.
Possession of such property within 1 year from the date of such stealing * * !! shall be deemed sufficient evidence to authorize conviction, unless the accused show to the satisfaction of the jury either * * *”
(a) that the property was a gift and not received from a minor under age 16, (b) that the amount he paid represented fair and reasonable value and the property was not received from a minor under age 16, (c) that when he bought he made certain described inquiries, (d) that when he received or bought the property he reported the transaction to the specified police authorities, and that the property was not received from a minor under 16 years of age, and (e) that before receiving or buying the property from a minor under 16 years of age he first communicated with specified police authorities and obtained their approval.
The offense of receiving stolen goods appears in the Crimes Act of 1796, § 62, p. 219 (Paterson’s Rev. 1800). It was there provided in general terms that any person who shall receive or buy any goods or chattels that have been stolen “knowing the same to have been stolen * * * shall be deemed guilty of a high misdemeanor * * (Emphasis ours.). And see, § 72, p. 279 (1847 Rev.)
This same 1874 Revision further demonstrates an awareness by the Legislature that it had established as separate offenses to be prosecuted as such, certain acts which, but for the individual treatment, would appear to be within the ambit of existing general statutes. Chapter 45, L. 1852 made it a high misdemeanor to receive or buy any stolen bank bill or note, bill of exchange, order, check, draft, bond or promissory note for the payment of money, or any certificate of stock or other security for the payment of money, or any other evidence of debt, knowing it to have been stolen. L. 1852, c. 45, § 1, pp. 87-88. This Act followed the decision of the Supreme Court in State v. Calvin, 22 N. J. L. 207 (Sup. Ct. 1849) holding that bank notes are not “goods or chattels” and therefore the receiver of stolen bank notes was not subject to indictment under section 72 of the 1847 Revision. The 1874 Revision integrated this Act into the omnibus receiving stolen goods section of the Crimes Act by adding to its language the words “or chose in action, or valuable thing
But in the 1898 Revision of the Crimes Act, Chapter 235 L. 1898, section 143 of the 1874 Revision was dropped as a separate offense and was integrated into the existing omnibus receiving stolen goods prohibition. It was included in section 166 thereof under which all types of receiving stolen goods offenses were downgraded from high misdemeanors to misdemeanors. L. 1898, c. 235, § 166, pp. 839-840. Except for section 183, L. 1898 and Chapter 255, L. 1903 and for some minor amendments added by Chapter 193, L. 1904 and Chapter 226, L. 1906, the description of the offense and the punishment prescribed were retained in the Compiled Statutes of 1910. 2 Comp. Stat. § 166, p. 1795 (1911). But the 1898 Crimes Act did add a separate and distinct receiving offense. Section 183 established as a misdemeanor the acquisition by purchase, gift, or receiving, of silk in finished or unfinished state (without obtaining consent of the employer) from a person employed in the manufacture or preparation of silk “knowing the same to be purloined or embezzled * * L. 1898, § 183, p. 844. This offense was continued as a distinct crime in the 1937 Revised Statutes, R. S. 2:164-2, and it exists in the same language at present as N. J. S. 2A:139-2.
It may be noted also that Chapter 255, L. 1903 created another separate receiving crime. Under this Act anyone purchasing from a minor under 16 years of age, jewelrjr, hardware, waste materials or other specified articles which may have been stolen, shall be guilty of a misdemeanor. L. 1903, c. 255, §§ 1, 4, p. 643. This enactment was retained
Chapter 187, L. 1928 amended section 166 of the 1898 Crimes Act Revision significantly. It dropped the language that had persisted since the 1796 Revision, which had described the offense as receiving stolen goods “knowing the same to have been stolen.” The amendment provided that any person who shall receive or buy stolen goods “shall be guilty of a high misdemeanor” and that if such person is shown to have or have had possession of such goods within one year of the theft, “such possession shall be deemed sufficient evidence to authorize conviction” unless such person shall show to the satisfaction of the jury one of four specified methods of acquisition. L. 1928, c 187, § 1, p. 356. A further amendment, Chapter 348, L. 1938, brought the proscribed offense to the form presently appearing as N. J. S. 2A:139—1 by adding the provisions respecting the duty of the receiver when the goods are acquired from a person under 16 years of age. L. 1938, c 348, pp. 875-876.
Our purpose in outlining the above statutory history is to demonstrate that New Jersey has had an omnibus receiving stolen goods act at least since 1796, and that the Legislature has been sensitive to its existence. The outline shows also that when the lawmakers felt that receiving stolen goods of a certain type presented a particular and perhaps current pressing evil, they made the act of doing so an individual misdemeanor or high misdemeanor by separate enactment. It reveals further that when the Legislature decided that a type of receiving stolen goods offense which had been given separate treatment ought to be drawn into the existing omnibus statute, it did so by simply adding a few words. Witness the drawing into the 1874 Crimes Act Revision (as mentioned above) of Chapter 45, L. 1852, relating to receiving stolen negotiable instruments etc., simply by adding a few words to the existing general statute. Note also by way of contrast, the continuance to the present day of the other separate enactments to which we have made reference.
“This bill is recommended by the Motor Traffic Commission and aims to abate the theft of automobiles and their purchase by some person or persons knowing the same to have been stolen.”
Its title was “An Act to prevent the felonious taking and stealing of motor vehicles.” It provided in pertinent part, that any person who shall steal a motor vehicle or receive or purchase a stolen motor vehicle knowing that it had teen stolen “shall be guilty of a felony, and upon conviction thereof shall be sentenced to pay a fine not exceeding five thousand dollars, and to undergo imprisonment by separate or solitary confinement at labor not exceeding ten years.” It was adopted as Chapter 186, L. 1921, at p. 503. The description of the offense and the punishment prescribed leave no doubt that the Legislature recognized it as a measure to combat a particular evil, and intended it to be administered separately from the omnibus receiving statute.
The Act was amended in 1934 but the legislative intention to have the offense treated as a distinct crime was not affected. L. 1934, c. 229, p. 532. Under the amendment the description of the offense as a “felony” was changed to a “high misdemeanor” and the punishment of fine and imprisonment became fine or imprisonment or both. The introducer’s statement said the intention was to change the description of the offense from a “felony” to a “high mis
The statutory history satisfies us that the Legislature has recognized and still recognizes a special evil associated with the receiving of stolen motor vehicles knowing them to be stolen. It demonstrates also that the lawmakers intended to establish it as a distinct offense, to require it to be prosecuted as such, and to be subject upon conviction therefor to greater maximum limits of punishment.
It is understandable that the lawmakers did not feel the need for including in N. J. S. 2A:139-3 the evidentiary
In view of all the circumstances discussed, we believe the Legislature consciously and deliberately established the offense of receiving a stolen motor vehicle knowing it to be stolen, as a separate and distinct crime from N. J. S. 2A:139-1. The omnibus language of N. J. S. 2A:139—1, which on its face would seem to be broad enough to encompass receiving stolen automobiles, dates back at least to 1796, thus long antedating such vehicles. With the advent of automobiles in substantial numbers by 1921, and their unusual appeal as an object of theft, the Legislature by the clearest kind of implication withdrew the associated offense of knowingly receiving stolen vehicles from the almost unlimited scope of the ancient statute, and undertook to deal with it independently and punitively in a manner designed to deter its particular public evil. See, State v. Hotel Bar Foods, 18 N. J. 115, 128-129 (1955); Goff v. Hunt, 6 N. J. 600, 607 (1951). The maximum punishment that can be imposed for violation of the omnibus receiving statute is seven years imprisonment or a $2,000 fine or both. The maximum prescribed for violation of N. J. S. 2A:139-3 is ten years imprisonment or a $5,000 line or both. Thus the legislative will could be frustrated by indicting an accused under N. J. S. 2A:139-1. Such an indictment would prevent imposition of the longer sentence provided under N. J. S. 2A:139—3. Accordingly, we hold the view that the charge of knowingly receiving a stolen motor vehicle must be prosecuted under the specific statute, N. J. S. 2A:139-3, and that an indictment under N. J. S. 2A:139—1 is technically objectionable. But, under R. R. 3:4-3 (a) error in the citation of the statute or its omission in an indictment is not ground for dismissal or for reversal of a conviction if the error or
Prosecutions already disposed of are not affected by our determination here. Persons already charged and convicted under N. J. S. 2A:139-1 cannot complain. They were exposed to less severe punishment than that set out in N. J. S. 2A:139-3, and for the reasons expressed above they suffered no prejudicial harm. Cf. State v. Block, 119 N. J. L. 277, 281 (Sup. Ct. 1938), affirmed 121 N. J. L. 73 (E. & A. 1938).
Bemanded.
For remandment—Chief Justice Weintkattb and Justices Jacobs, Ebancis, Pkoctob, Hall, Schettino and HaneMAN—7.
Opposed—Hone.
Reference
- Full Case Name
- STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT v. WILLIAM BOTT AND ROBERT LENOIR
- Cited By
- 1 case
- Status
- Published