State v. KeelyState v. Keely
Tried to a jury, defendant was convicted of charges contained in two respective indictments: (1) feloniously attempting to use a dangerous weapon (a pen-knife) against one Mary Beth Shaefer (
Defendant asserts in this appeal: (A) the pistol was a “starter‘s pistol” and did not fall within the type of firearm proscribed by
A
The trial judge erroneously denied defendant‘s motion to dismiss the unlawful possession of a weapon charge.
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.
The State‘s expert agreed that the pistol as found in defendant‘s possession was a starter pistol and as such did not fall within the ambit of the statute. But the State contends that defendant was in violation of the statute because (a) it could be converted into a weapon capable of firing bullets with the minor conversion, and (b) it was capable of firing tear-gas cartridges which constituted “gas, vapor or other noxious thing.” Cf. State v. Hepner, 136 N.J. Super. 509 (App. Div. 1975), involving a flare gun.
We cannot accept the State‘s argument as to (a) because the pistol as found had not been altered in any way. Moreover, there was not the slightest evidence that defendant intended to alter it or was capable of doing so. The mere fact that he possessed some tear-gas cartridges is without pertinent significance. He had no extra cylinder in his possession which could have been substituted and he had no tools in his possession which were required to perform the necessary operation to enlarge the barrel.
Were the State‘s theory valid, the most innocent of objects would come within the prohibition of the statute, for
None of the cases cited by the State holds differently. State v. Morgan, 121 N.J. Super. 217 (App. Div. 1972), which is strongly relied on for the State‘s position, is clearly inapt. There the weapon contained five bullets which were capable of being fired by inserting a thin piece of metal or paper between the filed-down firing pin and a cartridge.1
As to (b), there was not the slightest evidence that the pistol was capable of firing tear-gas cartridges. It is quite obvious that this thesis was first advanced on appeal to bolster an obvious deficiency in the proofs on this point.
B
We find no error in the consolidation of the indictments for trial. Since defendant failed to move for severance pursuant to
We feel that there was sufficient connection between the two alleged violations to warrant their consolidation for trial. State v. Aiello, 91 N.J. Super. 457, 466 (App. Div. 1966), certif. den. 48 N.J. 138 (1966), cert. den. 388 U.S. 913, 87 S.Ct. 2106, 18 L.Ed.2d 1351 (1967). See also,
After a trial of several charges without objection, “it takes a strong showing of probable prejudice in fact to warrant a finding of `plain error.‘” State v. Baker, 49 N.J. 103, 105 (1967), cert. den. 389 U.S. 868, 88 S.Ct. 141, 19 L.Ed.2d 144 (1967). We find that the test of prejudice — that the jury could not arrive at a determination on each charge irrespective of the evidence concerning guilt on the other charge (State v. Hines, 109 N.J Super. 298 (App. Div. 1970)) cert. den. 400 U.S. 867, 91 S.Ct. 108, 27 L.Ed.2d 106 (1970) has not been met. The trial judge appropriately instructed on each of the two charges — separating the elements clearly and distinctly as to each charge. He directed the jury to return separate verdicts as to each. Accordingly, we find no plain error under the circumstances.
C
We find no merit in defendant‘s final contention that the verdict on the dangerous weapon charge was against the weight of the evidence.
The standard of our review is enunciated in
Essentially, defendant argues that the jury should have accepted defendant‘s version of the facts rather than that of the State. Clearly, however, there was sufficient credible evidence to furnish the basis for the verdict. As stated by
Finding no error other than the failure to dismiss the indictment for possessing the starter pistol, the conviction of defendant on that indictment (No. 231-75) is reversed and the conviction on the indictment charging the felonious attempt to use a dangerous weapon (No. 230-75) is affirmed.