For the prosecutor, Thomas Brunetto.
For the respondent, Lawrence E. Keenan.
Before Justices Case, Donges and Colie.
The opinion of the court was delivered by
CASE, J. A complaint issued out of the Recorder's Court of the Town of Belleville, in the County of Essex, charging prosecutor with having committed an assault and battery. The charge was couched in appropriate terms. The prosecutor pleaded not guilty, waived indictment and trial by jury
and requested in writing that he be tried immediately before the recorder. The recorder accordingly conducted the trial and at the close found prosecutor guilty and imposed upon him in penalty a fine of $25.
The question before us for decision is whether, as against any ground contra presented to us by the prosecutor, the recorder had jurisdiction to try defendant for the offense of assault and battery. It is advanced by the prosecutor, first, that the legislature has not conferred such jurisdiction and, second, that the prosecutor did not and could not, by waiver or consent, confer jurisdiction. It is settled that neither waiver nor consent confers jurisdiction where the tribunal otherwise has no jurisdiction over the subject-matter. King v. Scala, 110 N.J.L. 321, 324; Hadelman v. Harris, 93 Id. 66.
The reasoning given in support of the first proposition is that the jurisdiction of the Recorder's Court in the Town of Belleville is limited to the authority granted in R.S. 2:225-3 which admittedly does not undertake to and does not, in fact, grant jurisdiction to try the charge of assault and battery. But R.S. 2:216-4 provides:
"Except in counties where criminal judicial district courts are or may be established, when any person charged with any of the offenses herein enumerated shall, in writing, waive indictment and trial by jury, the recorder, * * * in * * * towns having a population of over one thousand inhabitants, shall, in addition to his other powers, try and determine all cases of assault, simple assault and battery, malicious mischief; * * * and also other criminal offenses, the penalty for which does not exceed a fine of one hundred dollars, or imprisonment for a term not exceeding six months; where any of the specified crimes are committed within the corporate limits of the municipality in which the criminal court is established."
That statutory provision is immediately followed by section 5 (R.S. 2:216-5) which declares:
"Upon conviction of any person, such court may impose such penalty or penalties as may be provided by law for the offense of which the ...