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STATE v. WARD
57 N.J. 75 (1970)
270 A.2d 1
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
STEPHEN DOUGLAS WARD, DEFENDANT-APPELLANT.
The Supreme Court of New Jersey.
Argued September 15, 1970.
Decided October 26, 1970.
Mr. Stanley C. Van Ness, Public Defender, argued the cause for defendant-appellant (Mr. Richard Newman, Deputy Public Defender, on the brief).
Mr. Samuel J. Serata, Assistant Prosecutor, argued the cause for plaintiff-respondent (Mr. Joseph Tuso, Prosecutor for Cumberland County, attorney; Mr. Samuel J. Serata on the brief).
The opinion of the court was delivered by PROCTOR, J. The defendant, Stephen Douglas Ward, was found guilty by a jury of possessing marihuana in violation of N.J.S.A. 24:18-4, and was sentenced to serve a State Prison term of two to three years and fined $100. He appealed his conviction and sentence to the Appellate Division. That court, in an unreported opinion, affirmed the conviction but expressed its view that a sentence to the reformatory rather than State Prison would have been more appropriate. It did not pursue the point, however, since defendant had recently been transferred to the Yardville Youth and Correctional Center and was to be released in a month or two. We granted defendant's petition for certification. 54 N.J. 581 (1969). The following facts are relevant to this appeal. About 8:00 o'clock in the evening of June 7, 1968, the police, pursuant to a warrant, searched the defendant's home where he was living with his mother and his brothers and sisters. The search uncovered a small package of marihuana in defendant's bureau drawer, a pipe stem containing marihuana in defendant's desk drawer, and the remnant of a marihuana cigarette in a room adjoining the defendant's. The total value of the seized drug was said to be about $2.50. The defendant denied all knowledge of the cigarette and the package. However, he admitted that he placed the pipe stem in his desk, and that the stem was used to smoke marihuana. His explanation was that the stem was owned by a friend, that the friend brought it to the defendant's house to demonstrate its use, and that the friend left it there. Later the defendant put it away in his desk drawer and forgot about it. On his direct examination he admitted that he had occasionally smoked marihuana in the past, but denied that he had ever bought or sold any. He explained
that any marihuana he had smoked had been given to him. On this appeal, defendant first urges that he was denied a unanimous jury verdict. When the jury returned, the foreman announced a verdict of "Guilty as charged." Upon being polled, the first eight jurors stated "Guilty as charged." However, the ninth juror stated "Guilty of possession of pipe stem." The last three jurors repeated the verdict "Guilty as charged." Before the Appellate Division, the defendant contended that the ninth juror's verdict responded neither to the indictment nor to the judge's instructions to the jury and was thus fatally defective. The Appellate Division rejected the argument holding that when the verdict was considered in light of the testimony, "it constituted a statement by [the ninth juror] that she found the charge of defendant's illegal possession of narcotics proven as far as the marijuana in the pipe stem was concerned." Before us, defendant argues that the Appellate Division's holding was reached by an impermissible "molding" of the verdict. We disagree. There is no doubt that a finding that the defendant knowingly possessed one of the three items charged would be sufficient to sustain a verdict of guilt. See State v. Huggins, 84 N.J.L. 254, 258 (E. & A. 1913); State v. Shelbrick,33 N.J.Super. 7, 10 (App. Div. 1954). The only question is whether the ninth juror's answer on the poll was "sufficiently certain and specific to identify the crime and be responsive to the issue raised by the indictment and the plea." State v. Weber, 127 N.J.L. 274, 278 (Sup. Ct. 1941). We think it was. The jury was charged that for the defendant to be guilty of possession of marihuana, he must have "intentional control" of the substance "accompanied by knowledge of its character." Thus, a verdict of guilty would require a finding by the jury that defendant was aware the pipe stem contained marihuana. It is common knowledge that persons are not "guilty" of merely possessing pipe stems. The ninth juror undoubtedly would have voted for acquittal if she believed either that the pipe stem did not contain marihuana or
that the defendant did not know it contained the substance. But she did not vote for acquittal, and her pronouncement of "Guilty of possession of pipe stem" is sufficiently responsive to the charge. We add that our examination of the record discloses no basis for concluding that defendant was unaware of the marihuana found in the pipe stem. He was no stranger to marihuana. He was fully aware of what it looked like and the methods in which it was used. In fact, he admitted that the pipe stem for which he was convicted had been the subject of instructions on one of these methods at his home. While we believe that the trial judge should have sought clarification from the ninth juror, the absence of any action by defense counsel indicates to us that no one doubted the import of her response. Cf. State v. Johnson,31 N.J. 489, 511 (1960). Defendant's next contention is that the trial judge made impermissible comments to the jury which denied him his right to a fair trial by an impartial jury. Defendant concedes it is well established in this state that a trial judge may comment on the evidence as long as he leaves to the jury the ultimate determination of the facts and a rendering of the verdict on the facts as it finds them. State v. Mayberry,52 N.J. 413, 439-440 (1968); State v. Laws,50 N.J. 159, 177 (1967). In the present case the trial judge, in the course of his charge, made the following remarks: Now, how do you decide a case? You decide it from the sworn testimony as you heard it and the law as the court gave it to you. Now, this case should not be a troublesome one, because it's a classic case for a jury. I shall not endeavor to recall to you my recollection of what the witness said, because I observed you listened attentively to all the state's witnesses and you listened attentively to the defendant's.
1. The study reported: "First of all, many of the first offenders are young men and women who are users and who have become entangled with the law for the first time. Hospitalization plus skillful guidance will salvage a great many more of these than incarceration. Says Dr. Victor H. Vogel, former Medical Officer in Charge, U.S. Public Health Service Hospital, Lexington, Kentucky, "There is little defense for the predatory, non-addict drug sellers who exploit our youth for profit. However, laws providing severe mandatory penalties for all who are technically guilty of selling drugs would prevent the rehabilitation of many of the younger addicts. This is true because drug users frequently sell small quantities of drugs to friends or acquaintances to obtain money to supply themselves with enough narcotics to prevent withdrawal suffering. Successful medical treatment and rehabilitation may better be accomplished if the court can give this type of patient a short sentence to a hospital or place him on probation, giving his doctor authority to release him when the best results of treatment have been attained.'"
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