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State v. Seng
Citations: 213 A.2d 515; 89 N.J. Super. 58
Court: New Jersey Superior Court; September 27, 1965; New Jersey; State Appellate Court
Harry B. Seng is indicted for multiple violations of New Jersey weapon and explosives statutes. The charges include: 1. **Indictment No. 1018-64**: Carrying a tear gas gun in violation of N.J.S. 2A:151-41, which prohibits the concealment of specified weapons, categorizing such actions as a misdemeanor. 2. **Indictment No. 1019-64**: Selling a firearm without a license, contrary to N.J.S. 2A:151-19, which requires registration for the sale of firearms and similar weapons. 3. **Indictment No. 1020-64**: Failing to register a firearm, specifically regarding the unlawful sale and possession with intent to sell a tear gas pen-gun, violating N.J.S. 2A:151-24. 4. **Indictment No. 1017-64**: Possession and sale of a stink bomb, contrary to N.J.S. 2A:144-1, which prohibits the sale of substances designed to emit unpleasant odors or gases. Key legal issues include whether a tear gas pen-gun is classified as a weapon under N.J.S. 2A:151-1 et seq. and if Seng's actions related to selling a tear gas pen-gun fall under the regulation of stink bombs per N.J.S. 2A:144-1. The court identifies a tear gas pen-gun as a weapon, defined as an instrument for combat or defense, affirming its classification and the intent of the legislature to regulate such items. A tear gas pen-gun is not explicitly categorized as a weapon under N.J.S. 2A:151-1 et seq., which lists firearms, bombs, and explosives. The indictments (Nos. 1018, 1019, and 1020) classify the pen-gun as a firearm, but for it to fall under legislative regulation as such, it must meet specific criteria. Legal precedent indicates that a "firearm" is defined by its ability to propel a projectile through explosive energy. In prior cases, including United States v. Thompson and United States v. Tot, courts emphasized two main factors for firearm classification: the release of a projectile and the use of explosive charge. The tear gas pen-gun releases gas, not a projectile, and operates using air, not an explosive charge, thus failing to meet the definition of a firearm. The Village of Barboursville ex rel. Bates v. Taylor case suggests that a tear gas pen-gun could potentially be classified as a firearm if it can be adapted to fire explosive projectiles, but there is no evidence of the current pen-gun being used to inflict serious harm. Therefore, the indictments are legally flawed and should be dismissed, as the pen-gun does not fulfill the criteria necessary for classification as a firearm under the statute. Indictment No. 1017-64 alleges that the defendant sold a stink bomb, violating N.J.S. 2A:144-1, which criminalizes the possession or sale of substances designed to emit a harmful or unpleasant odor. However, the statute includes an exception for items used for the protection of life and property. The defendant's sale of tear gas pen-guns, intended for personal defense, falls outside the statute's regulatory scope and is thus not a misdemeanor. The indictment is deemed defective and should be dismissed based on the legal principle expressio unius est exclusio alterius, indicating that the inclusion of certain items suggests the exclusion of others not mentioned. Additionally, the statutory interpretation of penal laws requires strict construction, meaning that any ambiguity must favor the defendant. Since tear gas pen-guns do not meet the characteristics of regulated weapons and their sale for defense is explicitly excepted, the indictment lacks clarity and should be dismissed.