Summary
In State v. Edwards, 120 N.J. Super. 46, 293 A.2d 234 (1972), Judge Brendan T. Byrne concluded that, "there seems little doubt that the intent of the possessor is a highly significant `fact and circumstance' under our present law."
Summary of this case from U.S. ex Rel. Ebron v. Attorney Gen. of St. of N.J.Opinion
Heard June 7, 1972 —
Decided June 22, 1972.
Mr. Allen C. Marra, Assistant Prosecutor, for State ( Mr. Joseph P. Lordi, Prosecutor of Essex County, attorney).
Mr. Joseph M. Kiell, for Defendant.
The case was tried without a jury. The issue is whether a pocket knife found on a defendant, measuring 3 1/2 inches (blade), is per se a dangerous knife and therefore in violation of N.J.S.A. 2A:151-41. Trial was on stipulated facts, the knife S-1 was found closed in the defendant's pocket on a search. No reason for the search was advanced. The context distills the issue — is S-1 a dangerous knife?
No New Jersey court has quite defined "dangerous." Cases have indicated that a finding of "dangerous" may be made by a jury "based on all the facts and circumstances." State v. Green, 116 N.J. Super. 515, 521 ( App. Div. 1971); State v. Horton, 98 N.J. Super. 258, 261-2 ( App. Div. 1967).
The proposed New Jersey Penal Code, vol. I, § 2C:39-3(i), approaches the problem in terms of intent to use to commit a crime. The comments to the Code indicate that this represents a change in New Jersey law. Vol. II, § 2C:39-3(9). However, there seems little doubt that the intent of the possessor is a highly significant "fact and circumstance" under our present law.
The correct approach to the interpretation of this statute is that taken by the District of Columbia Court of Appeals in Scott v. United States, 243 A.2d 54 (1968):
This court has previously held that all knives are not per se dangerous weapons. Degree v. United States, D.C. Mun. App., 144 A.2d 457 (1958). A knife may be used as a tool in certain trades or hobbies or it may be carried for utilitarian reasons. Section 22-3204 does not prohibit the carrying of such instruments for a legitimate purpose. The statute, as we interpret it, outlaws the carrying of an otherwise useful object where the surrounding circumstances, such as the time and place the defendant was found in possession of such an instrument, or the alteration of the object, indicate that the possessor would use the instrument for a dangerous purpose.
See also Clarke v. United States, 256 A.2d 782, 786 (D.C.App. 1969).
There may be circumstances where the size of a knife or its characteristics is enough to meet the definition of "dangerous." S-1 cannot be so considered.
A judgment of acquittal is hereby entered.