stating that the Legislature may address criminal conduct by “preparing] a detañed catalogue of proscribed activities or, within constitutional limits, addressing] the problem more generañy”
How later courts described this case
- stating that the Legislature may address criminal conduct by “preparing] a detañed catalogue of proscribed activities or, within constitutional limits, addressing] the problem more generañy”
- explaining that "surrounding circumstances" determine whether the purpose of an actor was to use an otherwise innocent object "as a weapon"
- explaining that “surrounding circumstances” determines whether the purpose of an actor is to use an otherwise innocent object “as a weapon”
- upholding defendant’s conviction for possessing scissors taped to simulate stiletto while burglarizing home because “[i]t would be difficult to imagine a less appropriate possession of’ that instrument
Written by the judges who cited it.
The opinion
CLIFFORD, J.,
dissenting.
If the woeful lack of precision in our public discourse has not yet reached scandalous proportions, it bodes fair soon to do so. Teetering on the brink of that hyperbole, I view today’s decision as making a significant, if unwitting, contribution to the decline of exactness in speech, thereby advancing an unfortunate trend that our every effort should be bent on retarding.
Not only has the Court swept aside respected authority (State v. Green, 62 N.J. 547 (1973), and In re T.E.T., 184 N.J.Super. 324 (App.Div.1982)) with its holding that proof of intent to use a weapon for an unlawful purpose is not required to sustain a violation of N.J.S.A. 2C:39-5d; it has succeeded in cloaking the statutory language “not manifestly appropriate” with wholly undeserved respectability. The first, ’& disregard of established case law, is one thing — an affront to the dignity of precedent, but endurable. The second, however, is quite another — an insult to civilized parlance that in this instance depreciates an indispensable characteristic of the law: concise expression and clarity of meaning. See Oakwood at Madison, *168 Inc. v. Township of Madison, 72 N.J. 481, 631, 636-67 (1977) (concurring opinion).
At the outset I would record my agreement with Judge Antell, dissenting below, that even if we were able to agree on an acceptable meaning of “not manifestly appropriate,” its use presents an insurmountable obstacle to any coherence in this criminal statute.
If read literally the statutory language would encompass countless situations which the Legislature could not have intended as the subject of prosecution. The workman carrying home a linoleum knife earlier used in his work; the paring knife inadvertently left on an automobile floor after being used for a lawful purpose; a stevedore’s hook or a fisherman’s gaff, thrown into a vehicle and forgotten. A “weapon” could include a brick, a baseball bat, a hammer, a broken bottle, a fishing knife, barbed wire, a knitting needle, a sharpened pencil, a riding crop, a jagged can, rope, a screwdriver, an ice pick, a tire iron, garden shears, a pitch fork, a shovel, a length of chain, a penknife, a fork, metal pipe, a stick, etc. The foregoing only illustrate the variety of lawful objects which are often innocently possessed without wrongful intent, but under circumstances which are clearly not “manifestly appropriate” for their lawful use.
Possession of a fork is manifestly appropriate only at the dinner table, of a bat on the athletic field, of a shovel in the garden. It cannot be reasonably concluded that this penal enactment was actually intended to apply to possession of these commonplace articles in the myriad circumstances when its appropriateness is less than “manifest.” It has long been the rule that “where a literal reading of the statute leads to absurd consequences ‘the court must restrain the words’ and seek the true legislative intent.” Furthermore, in this case a literal reading of the statute breaches the precept that "[p]enal laws must be clear enough so that ‘all men subject to their penalties may know what acts it is their duty to avoid.’ ” [188 N.J.Super. at 437 (citations omitted).]
Even apart from the language problem, as Judge Antell saw it (again I agree),
[although] the circumstances of this defendant’s possession of the taped scissors suffice to support a finding of intent to use them as a weapon, the jury was not instructed that such a finding must be made as a condition to arriving at a guilty^verdict. Since defendant’s intent was an element of the crime charged, he was entitled to such an instruction from the court without a request that it be given. [Id.]
But the trouble — and more the source of this fulmination — is that “not manifestly appropriate” is so lacking in any precise meaning as to defy definition. The Court, wisely, does not even hazard one. As Judge Antell’s examples demonstrate, meaning *169 is best ascertained by resort to illustrations — perhaps only that way. To invest the expression with sufficient significance as to allow its use in a criminal statute is to disparage the requirement of meticulous articulation.
“Not manifestly appropriate” drips with subjective content: what is “not manifestly appropriate” to one may be perfectly appropriate to another. Before this esoteric exercise gets out of hand, an example: I consider it to be “not manifestly appropriate” — maybe even “manifestly inappropriate” (although surely they do not carry the same meaning) — to overlook, in the company of ladies, certain amenities: the relinquishment of my seat in a public conveyance when, for want of space, a lady is obliged to stand; the removal of my hat when a lady enters the elevator; the holding of a door — that sort of thing. Some of my younger friends doubtless view this as horse-and-buggy bunkum, being of the view that observance of any of the foregoing civilities in this day and age is surely “not manifestly appropriate,” and is possibly “manifestly inappropriate.” Our differences are traceable at least as much to variations of meaning that inhere within such an expression as they are to our respective notions of chivalry or to a generation gap.
The point is that a phrase like “not manifestly appropriate” runs the risk, intolerable in a criminal statute, of wild swings of meaning. We should not undertake to justify its use in this statute by assuming that “we all know what it means.”
Traditionalists revere their mother-tongue (how apt is the piety of that formulation!) not out of a perverse delight in quibbling nor * * * out of a slavish adherence to arbitrary rules and antique forms, but rather because they realize that language is the participatory instrument of intellection. From this perspective language is not simply a means of communication but also an ethical art * * *. The practice of that art involves solicitude for precision, devotion to the possibilities of imagery, and above all delight in the intricate play of word-craft — the kind of delight that follows only upon reverence. [Salemi, Book Review, 19 The University Bookman 45, 47 (1979) (reviewing J. Hook, English Today: A Practical Handbook (1976)).]
I would reverse and remand.
*170 For modification and affirmance —Chief Justice WILENTZ and Justices SCHREIBER, HANDLER, POLLOCK, O’HERN and GARIBALDI—6.
For reversal and remandment—Justice CLIFFORD—1.