On error to the Atlantic Quarter Sessions.
For the plaintiff in error, Emerson L. Richards.
For the defendant in error, Harry R. Coulomb, Prosecutor of the Pleas (Robert N. McAllister, of counsel).
Before Brogan, Chief Justice, and Justices Case and Heher.
The opinion of the court was delivered by
HEHER, J. Plaintiff in error was convicted of assault and battery upon an indictment charging atrocious assault and battery upon one Dorothy Lee, and sentenced to imprisonment for an indeterminate term of two to three years. He has caused the entire record of the proceedings had upon the trial to be returned with the bill of exceptions, pursuant to R.S. 1937, 2:195-16.
The first point made is that the trial judge erred in permitting "the count for atrocious assault and battery to go to the jury, since it indicated to the minds of the jury that the court felt that this affair was much more serious than it
actually was" and "left the jury in a position to compromise by rejecting the charge of atrocious assault for that of simple assault." The indictment contained but one count; and there was a motion at the close of the case for the direction of "a verdict of not guilty on the charge of atrocious assault and battery." The motion was properly denied.
Inasmuch as the verdict exonerated the accused of this particular accusation, he suffered no prejudice by the ruling, even though the evidence would not sustain a conviction of that offense. Compare State v. Jayson, 94 N.J.L. 467. It is to be presumed that the jury understandingly adhered to the court's instructions and convicted the accused of assault and battery only because the evidence satisfied them of his guilt of that transgression beyond a reasonable doubt. The adoption of the view thus advanced would tend substantially to modify the well-established rule that the accused may be convicted of any crime of a lesser grade or degree, provided it is an ingredient of the greater offense alleged and is therefore included therein. State v. Johnson, 30 Id. 185; State v. Jackson, 65 Id. 105; State v. McDonald, 89 Id. 421; affirmed, 91 Id. 233.
But it is also maintained that there was error in the denial of the accused's further motion, at the close of the case, for the direction of a verdict of not guilty as to "the lesser offense," i.e., "assault and battery, and/or assault," since the prosecutrix "was the aggressor, and * * * merely received in return, as she was in the act of committing an assault and battery upon" the accused, "a slap, or blow, to repel that attack." We find that the evidence presented a jury question as to this issue.
The fracas occurred at a restaurant bar as guests invited to a birthday party were assembling. There was some horseplay. It was fairly inferable from the evidence that the prosecutrix "slapped" the accused in resentment at liberties she thought (and not altogether without reason) he had taken with her person, and that thereupon he struck her with sufficient force to cause her to fall to the floor, and later again felled her by a ...