Jacobs, Eastwood and Bigelow. The opinion of the court was delivered by Eastwood, J.A.D.
The defendant, Joseph Williams, was tried before the Essex County Court and a jury and convicted on an indictment charging him with having committed an atrocious assault and battery upon one Wayne Richardson, six years of age. The defendant appeals from the ensuing judgment.
On the evening of October 1, 1950, when young Richardson and several children were playing a game of "hide and seek" in the alley adjacent to defendant's residence, he was struck in the cheek by a fragment of a bullet from a revolver fired by the defendant.
The pertinent testimony reveals that the defendant first told the police that the children of the neighborhood were habitually making noise; that he had thrown a firecracker, referred to as a "torpedo," in order to scare them; then, when no particles of a firecracker were found by the police, he admitted that the "torpedo" story was not true; that he had retired early the prior evening, was awakened by a noise in the driveway, which he thought to be a burglar; that he had $3,400 in cash and several thousand dollars in checks in the house; that six days previous thereto he had been disturbed by a noise and was apprehensive because of rumors of burglaries in the neighborhood, although the most recent burglary he could recall was December, 1949; that when awakened by the noise, he went to the window to check, then got his gun, went out the rear door onto the porch and fired one shot into the yard with the intention of scaring away anyone who might be on his premises; that he then opened his gun, ejected the shell, reloaded it and returned to bed. The police took the gun, fully loaded, into their possession. A neighbor testified for the State that on the preceding day the defendant had fired two shots at some boys, saying: "Them damned bastards! I will kill them and pay for them." The State adduced other testimony as to the facts and circumstances connected with the shooting.
The defendant's case proceeded upon the premise that his actions were not unreasonable, but justifiably created by fear of burglars and the bad character of the neighborhood; that to constitute atrocious assault and battery, it was necessary for the State to prove that Wayne Richardson suffered injury as a result of an assault and battery committed by the defendant and that the injury was intentional and "savagely brutal and inhumanly cruel in character," and it failed to do so.
The defendant argues that the court erroneously permitted the State, on cross-examination, over defendant's objection, to elicit from the defendant's character witnesses an answer to the following question:
"* * * if I were to tell you that the defendant had been arrested on August 20, 1948, in Baltimore, Maryland, and charged with felonious entry, which charge was subsequently dismissed by the grand jury, and if I were to tell you that on April 4, 1951, the defendant was arrested and charged with illegal entry into the United States of America and is presently under $1,000 bail on that charge, awaiting hearing before the Immigration Commissioner, would those facts which I have just related to you in any way change your opinion that this defendant is a good, quiet, peaceful, law-abiding citizen."
"The extent of cross-examination as to reports of misdeeds of the person inquired of rests in the discretion of the trial court. The reports and rumors respecting the accused inquired of are those circulating among his neighbors and acquaintances. They must relate to the trait of character involved in the commission of the crime charged, and to acts done before its commission, subject to the qualification that the antecedent time must not be too remote. The truth or falsity of the rumors cannot be established, nor may the details of the transactions be elicited." 58 Am. Jur., Witnesses, sec. 659, p. 364. The rule in this State is that the defendant's reputation in the community constitutes reputation and not the witness' personal opinion. State v. Danser , 116 N.J.L. 487, 492 (E. & A. 1936). In State v. King , 133 N.J.L. 480
(Sup. Ct. 1945), at p. 482; affirmed 135 N.J.L. 286 (E. & A. 1947), it was held that:
"To attack the credibility of a witness generally, it may not be asked of him whether his opinion would be changed if he had known that the defendant had previously been tried and acquitted of a similar charge as contained in the indictment on which the defendant was then being tried. On the previous indictment defendant stood as though she had never been indicted and a question such as the one propounded ascribes to an indictment a sinister aspect."
3 Wigmore on Evidence (3 d ed.), sec. 988, p. 619; Bullock v. State , 65 N.J.L. 557 (E. & A. 1900). Cf. Commonwealth v. Mashie , 155 Pa. Super. 419, 38 A. 2 d 403 (Pa. Super. 1944); Commonwealth v. Becker , 326 Pa. 105, 191 A. 351 (Pa. Sup. 1937). In the case of State v. Von Der Linden , 105 N.J.L. 618 (E. & A. 1929), the ...