dissenting.
Police officers are dispatched to a local watering hole to quell a ruckus. Defendant, assuming the role of peacemaker, attempts to “cool” it. He does not do so well, because a fight breaks out as police attempt to arrest one Johnson. In the succeeding melee one of the officers is knocked down. He loses his revolver, which somehow finds its way into defendant’s possession. After the malefactors have been hauled off to the pokey and some semblance of peace restored, the officer, now awakened to the fact that his weapon is missing, returns to the saloon. Told that defendant has his gun, the officer pats him down and, lo and behold, discovers his loaded weapon in defendant’s trousers.
In due course defendant is charged with, among other things, possession of a handgun without a permit, in violation of N.J.S.A. 2C:39-5(b). The theory of the State’s case is that defendant stole the officer’s weapon. Defendant argues that he had no intention of keeping the weapon and in fact was on his way to return it to the officer. Because he admits that the weapon belonged to the officer, defendant could not possibly have had a permit to carry it. That conclusion was not just consistent with the defense, it was part and parcel of it — a necessary ingredient. Nothing in the case focused on a permit or the lack of it, and defendant left no room for any claim that *294he had a permit. The case was about possession — whether defendant’s possession of someone else’s handgun was “fleeting or shadowy” and accompanied by the avowed purpose of returning it to the person who had lost it. The jury decided not.
We agree with the majority below that because the absence of a permit is “an essential element of the offense of unlawful possession of a handgun[,] * * * [t]he jury should have been apprised of the permissible inference, authorized by N.J.S.A. 2C:39-2, that no permit had been obtained, but that the ultimate burden of establishing its absence was to be borne by the prosecution.” As well, we agree that the failure of the trial court to have delivered that instruction would ordinarily call for reversal of defendant’s conviction, but that the peculiar facts of this case warrant an exception to the ordinarily-hard-and-fast rule. We therefore adopt the view of the majority below that the error was harmless beyond a reasonable doubt and that “it is plain beyond peradventure that defendant was in no sense prejudiced,” nor could any of his substantial rights possibly have been compromised by the trial court’s mistake. Noteworthy is the fact that the dissenter below agreed entirely with the views of his colleagues in the majority, but felt constrained to reverse because of what he perceived to be precedent from this Court that would prohibit characterizing the acknowledged error as “harmless.”
We find ourselves at a loss to understand the Court’s concern for this defendant, who complains of the trial court’s failure to have charged the jury on the State’s obligation to prove that he did not have the permit that defendant himself insists he did not have — nor could he have had, inasmuch as the handgun concededly belonged to the police officer, to whom defendant wished (he says) to return it, and thus only the officer was authorized to carry it. See N.J.S.A. 2C:58-4. We should all recognize that our cases may occasionally turn up freakish factual contexts in which the rigid, mechanistic application of a sound, well-established, respected principle of law will produce *295a result that is plainly at odds with substantial justice. This is such a case. When, as here, there is a collision between law and common sense, this Court should exert its best effort to vindicate good sense. Our institutional legitimacy depends on our succeeding in that endeavor.
We would affirm defendant’s conviction rather than expend time, energy, and valuable resources on a retrial, when the first trial was so eminently fair.
For reversal and remandment — Chief Justice WILENTZ, and Justices HANDLER, POLLOCK, O’HERN and GARIBALDI — 5.
For affirmance — Justices CLIFFORD and STEIN — 2.