On appeal from the Essex County Court of Quarter Sessions.
For the defendant in error, William A. Wachenfeld, prosecutor of the Pleas; Michael Breitkopf, assistant prosecutor, and C. William Caruso, special assistant prosecutor and legal assistant.
For the plaintiff in error, Joseph C. Cassini.
Before Brogan, Chief Justice, and Justices Case and Perskie.
BROGAN, CHIEF JUSTICE. The plaintiff in error, Charles Capawanna, was found guilty upon an indictment containing two counts, one for assault and battery, and the other for atrocious assault and battery, in the Essex County Court of Quarter Sessions.
The testimony offered by the state tended to show that Capawanna had seriously injured the complaining witness. He struck him several times with his fists, breaking his jawbone in two places, dislodging his teeth in the area of the fractures so that they hung loose by a shred of flesh, and breaking the skin below the left eye.
The plaintiff in error presents seventeen assignments of error and specifies eighteen causes for reversal. Many of the grounds upon which a reversal is sought are not available to the plaintiff in error. Taking the points as they are submitted in his brief, our view is that those designated as numbers 1, 2, 5, 6, 11, 14, 15 and 18 are of such class, inasmuch as under these points, either singly or in groups, it is argued that the court failed to instruct the jury in one or more particulars, which counsel now argues should have been presented in the charge. We consider it settled that the failure to charge a proposition, even though applicable to the facts in the case, cannot be made the basis of an assignment of error in the absence of a specific request to so charge. State v. Barone, 96 N.J.L. 417; State v. Larsen, 105 Id. 266. Here no request to charge whatever was submitted to the trial court, nor was any complaint made by counsel, when the charge was concluded, as to what the trial court said in its charge, or failed to say.
It might not be amiss to state there is no duty upon the trial court in a criminal case to charge the jury at all unless there be a request to do so. The court is not obliged to define the crime and may send the case to the jury for consideration without any instruction. State v. Geltzeiler et al., 2 N.J. Mis. R. 1106; affirmed, 101 N.J.L. 415; People v. Gray, 5 Wend. 288; State v. Ross, 247 Pac. Rep. 1149; State v.
Haines, 103 N.J.L. 534. As to the rule in civil cases, compare Rowland v. Wunderlick, 113 Id. 223. Hartwyk v. Shea, 114 Id. 235; Kruschka v. Konvitz, 13 N.J. Mis. R. 299.
It is next argued, as we understand the point made by the plaintiff in error, that the court erred in permitting the jury to determine that there was proof in the case which would sustain a finding that an atrocious assault and battery had been committed. Under this heading it is argued that an atrocious assault and battery cannot be done unless the assault and battery be accomplished by the use of a weapon or implement of some kind. If such was the common law requisite, it has been changed by our statute which contains no such requirement (section 113 of the Crimes act). In fact, the term, "atrocious assault and battery" so far as we recollect, was unknown at common law. Such offenses, serious, outrageous or cruel assaults and batteries, were classed as "aggravated" and were delineated with particularity as misdemeanors, felonies, &c., according to their gravity. But our statute, supra, imports, in our view, its own definition of atrocious assault and battery, reading as it does, thus: "* * * any person who shall commit an atrocious assault and battery, by maiming or wounding another, shall be guilty of a high misdemeanor." We take this to mean that an assault and battery, savage and cruel in character, which results in a maiming or wounding, amounts to an atrocious assault and battery.
Very little has been said in our cases in definition of the term, probably because the meaning is rather obvious, but our Court of Errors and Appeals has approved this statement: "An atrocious assault and battery is by maiming and wounding." State v. Staw, 97 N.J.L. 349; also Cf. State v. Lambertino, 13 N.J. Mis. R. 687.
There is nothing in the statute, supra, requiring that the maiming or wounding must be accomplished by the use of a weapon or implement. It should also be noticed, in passing, that the statutory provision is in the disjunctive so that any grave or cruel assault and battery may be ...