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State v. Maier

Decided: June 25, 1953.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ALBERT MAIER, DEFENDANT-APPELLANT



On certification granted to the Municipal Court of the City of Hoboken.

For affirmance -- Chief Justice Vanderbilt, and Justices Wachenfeld, Jacobs and Brennan. For reversal -- Justices Heher, Oliphant and Burling. The opinion of the court was delivered by Vanderbilt, C.J. Heher, J. (dissenting). Oliphant and Burling, JJ., join in this opinion.

Vanderbilt

A complaint was made in the Municipal Court of Hoboken against the defendant Maier charging that "he did wilfully commit an assault and battery upon Frances Gianno by spitting upon the face and body of said Frances Gianno, all in violation of the Disorderly Persons Law, N.J.S. 2A:170-26," which is a new section, enacted December 5, 1951, reading as follows:

"Any person who commits an assault or an assault and battery is a disorderly person."

This section of the New Jersey Statutes must be considered in the light of N.J.S. 2 A:85-1, which provides:

"Assaults, batteries, false imprisonments, affrays, riots, routs, unlawful assemblies, nuisances, cheats, deceits, and all other offenses of an indictable nature at common law, and not otherwise expressly provided for by statute, are misdemeanors." (Emphasis supplied.)

It is important to note that this section reads exactly like its predecessor R.S. 2:103-1, except for the insertion in N.J.S. 2 A:85-1 of the word "otherwise," which obviously refers to N.J.S. 2 A:170-26, which does "otherwise expressly provide by statute" for assaults and assaults and batteries.

The defendant moved to dismiss the complaint on the ground that N.J.S. 2 A:170-26 was unconstitutional in that it violated three paragraphs of our Bill of Rights:

"No person shall be held to answer for a criminal offense, unless on the presentment or indictment of a grand jury, except * * * in cases now prosecuted without indictment * * *." Const., Art. I, par. 8.

"The right of trial by jury shall remain inviolate * * *." Const., Art. I, par. 9.

"In all criminal prosecutions the accused shall have the right to a speedy and public trial by an impartial jury * * *." Const., Art. I, par. 10.

The municipal court denied the motion to dismiss the complaint.

Because of the public importance of the matter we granted defendant's petition for certification. Procedural objections have been raised as to whether the case is ripe for appeal, but because of the number of cases in the several counties involving the same question, we deem it essential to proceed at once to the meritorious question, especially as the case has been extensively argued three times.

The intent of the Legislature in enacting N.J.S. 2 A:170-26 and 2 A:85-1 is known to all, for the matter was canvassed in a comprehensive report submitted to the Judicial Conference by its Committee on Improving the Administration of Criminal Justice and was debated in the Judicial Conference, of which the legislative leaders as well as the judges and representatives of the bar are members, Rule 1:7-3. Thereafter it was again the subject of a study by the Subcommittee on the Revision of Criminal Laws which reported to the Advisory Committee on the Revision of Statutes created by L. 1950, c. 171, which in turn made the report to the Legislature on which is based the revision of Title 2 of the Revised Statutes, of which the statutes in question, N.J.S. 2 A:170-26 and 2 A:85-1, are parts. Together, these two sections purport to make the conduct that theretofore constituted the crimes of simple assault and of simple assault and battery, R.S. 2:103-1, disorderly conduct instead of misdemeanors. It is apparent that N.J.S. 2 A:85-1 was cast in this form in order that the State might not be without a general statute relating to assaults and

batteries in the event that N.J.S. 2 A:170-26 should be declared unconstitutional.

But the Legislature, by enacting N.J.S. 2 A:170-26 and 2 A:85-1, manifestly did not intend to make all assaults and batteries mere disorderly conduct, for it carried over into Title 2 A three sections from Title 2 of the Revised Statutes relating to assaults and batteries:

"Any person who commits an atrocious assault and battery by maiming or wounding another is guilty of a high misdemeanor." N.J.S. 2A:90-1, formerly R.S. 2:110-1.

"Any person who commits an assault with intent to kill, or to commit burglary, kidnapping, rape, robbery or sodomy, or to carnally abuse a female under the age of 16, with or without her consent, is guilty of a high misdemeanor * * *." N.J.S. 2A:90-2, derived from R.S. 2:110-2.

"Any person who willfully or maliciously assaults another with an offensive weapon or instrument, or by menaces, force or violence demands of another any money or personal goods and chattels, with intent to rob such other person, is guilty of a high misdemeanor." N.J.S. 2A:90-3, derived from R.S. 2:110-3.

These three kinds of assaults and batteries constituting high misdemeanors are differentiated from each other, N.J.S. 2 A:90-1 by the vicious act, N.J.S. 2 A:90-2 by the evil purpose of the defendant, and N.J.S. 2 A:90-3 by the use of offensive weapons or threats of violence. Taken together they present a comprehensive legislative scheme for assaults and assaults and batteries of a more grievous sort clearly distinguishable from simple assaults and batteries. The very substantial sanctions attached to these three high misdemeanors (in the case of N.J.S. 2 A:90-1 and N.J.S. 2 A:90-3 a fine of not more than $2,000 or imprisonment for not more than 7 years, or both, N.J.S. 2 A:85-6; in the case of N.J.S. 2 A:90-2, a fine of not more than $3,000 or imprisonment for not more than 12 years, or both), are to be contrasted to the punishment formerly attached to the crime of simple assault and battery of a fine not exceeding $1,000 or by imprisonment not exceeding 3 years, or both, R.S. 2:103-6, and to that which is now imposed on assault and battery as disorderly conduct of not more than one year's

imprisonment in a county workhouse, penitentiary or jail, or a fine of $1,000, or both, N.J.S. 2 A:169-4. Clearly the Legislature, when it provided that "Any person who commits an assault or an assault and battery is a disorderly person," N.J.S. 2 A:170-26, was providing for simple assaults and batteries as distinguished from the serious crimes provided for in the three sections of the statutes which we have just discussed. The Legislature might have interposed between simple assault and simple assault and battery as disorderly conduct and the three kinds of high misdemeanors above referred to, the intermediate offense of assault and assault and battery of general scope as misdemeanors distinguished by definition on the one hand from disorderly conduct and the three kinds of high misdemeanors on the other, and there is much that might be said for such a gradation in an offense of such a wide range as assault and battery, but the Legislature has not yet done so except in the limited instances of assaults on public officers in the service of process, N.J.S. 2 A:99-1, and of assaults on news photographers and news reporters, N.J.S. 2 A:129-1, and accordingly this problem is not now before us.

These gradations of assault and of assault and battery were unknown to the common law, Rell v. State, 136 Me. 322, 9 A. 2 d 129, 125 A.L.R. 602 (Sup. Jud. Ct. 1939), 2 Burdick, The Law of Crime (1946), sec. 345, although by statute some assaults and assaults and batteries were punished more severely than others by reason of the victim being a cleric or a member of the royal household or because the crime was committed in a church or a church yard, a court of justice or a royal palace, 5 and 6 Edw. VI, c. 4. But aside from the position of the aggrieved person or the place where the crime was committed, there was at common law no differentiation in degrees of these crimes. Not only were there no degrees of assault or of assault and battery at common law, but they were crimes of very extensive scope and application designed to protect the individual from every kind of bodily harm or the fear thereof short of death. Assault covered every "attempt or offer with force and violence, to do a

corporal hurt to another," 1 Hawkins, Pleas of the Crown, 113. Blackstone defines it as "an attempt or offer to beat another, without touching him," 3 Commentaries 120, while according to Wharton it is "an apparent attempt by violence to do corporal hurt to another," 1 Criminal Law (10 th ed.), sec. 603. On the other hand a battery is a "consummated or completed assault," 2 Burdick, The Law of Crime, sec. 350. It necessarily includes an assault. The offense is usually referred to as an assault and battery and at common law meant any unlawful bodily harm done to another person. "It seems that any injury whatsoever, be it never so small, being actually done to the person of a man, in an angry, or revengeful, or rude, or insolent manner, as by spitting in his face, or any way touching him in anger, or violently jostling him out of the way, are batteries in the eye of the law." 1 Hawkins, Pleas of the Crown, 134. "The law cannot draw the line between different degrees of violence, and therefore totally prohibits the first and lowest stage of it; every man's person being sacred, and no other having right to meddle with it, in even the slightest manner." 3 Blackstone's Commentaries 120. Assault and battery at common law ranged from these minor offenses, which nevertheless the law cannot afford to overlook, to violence falling just short of manslaughter or murder.

The common law of assault and of assault and battery as well as the statutory system of assaults and assaults and batteries were well known to the committees heretofore mentioned, to the Judicial Conference of which the legislative leaders were members where it was debated, and to the Legislature itself. All realized the gravity of the problem presented. To state it succinctly, before the enactment of N.J.S. 2 A:170-26 it was thought that every assault and every assault and battery could be proceeded against only by an indictment of a grand jury and a trial by a petit jury in exactly the same manner as the most serious crimes known to our law, unless, of course, the defendant saw fit, where the statute permitted it, to waive his constitutional right to indictment and trial by jury, R.S. 2:219-33. But there

are many assaults and many assaults and batteries which, though they constitute an inexcusable invasion of the rights of the individual citizen aggrieved thereby, have long seemed to the members of busy grand juries to be relatively unimportant in comparison with such crimes as murder, robbery and rape, that come before them for attention in all too numerous complaints. There has therefore been a perfectly natural tendency for relatively unaggravated assaults and assaults and batteries to go unredressed in many instances through the failure of the grand jury to indict the offenders, largely by reason of its preoccupation with more serious offenses, although there can be no doubt that the unwillingness of grand jurors to stigmatize their fellow citizens as criminals for a slight offense is also a factor. The resulting failure to indict is not only unfair to the individual citizen whose right of personal security from physical molestation and fear has been invaded without the redress that the law contemplated would be accorded him; it also makes, on the one hand, for continuing lawlessness on the part of the unpunished offenders and many who witness their flaunting of the law and, on the other hand, it makes for fear as to their personal safety as well as for a lack of respect for the law on the part of the victims of this failure of the judicial process and of other peaceloving members of the community. This maladministration of criminal law cannot fail to be highly detrimental to any neighborhood in which it occurs, and although it may seem relatively unimportant in comparison with the lurid crimes that find their way into the headlines of the newspapers, there can be little reason to doubt that collectively these seemingly minor infractions of the law, because of the frequency of their occurrence and the accumulative effect of their going unpunished, present a major problem in the administration of criminal justice, if the fundamental objectives of the law for the maintenance of peace and order are to be achieved.

There can be little doubt of the desirability of N.J.S. 2 A:170-26. The only question before us is whether or not it contravenes paragraphs 8, 9 and 10 of Article I of our

Constitution relating to indictment by a grand jury and trial by an impartial jury. To resolve this question requires: (1) a study of the summary jurisdiction of the justice of the peace at common law, especially with respect to trespasses; (2) a study of the growth of legislation enlarging the jurisdiction of the justices of the peace and of the municipal magistrates in summary proceedings, especially under the Disorderly Persons Act, N.J.S. 2 A:170-1 et seq., and (3) an examination of the scope of the three quoted constitutional provisions.

I. THE SUMMARY JURISDICTION OF THE JUSTICE OF THE PEACE AT COMMON LAW.

The general problem confronting us is not limited to New Jersey; it is a universal problem in the administration of justice. In every jurisdiction it is necessary to provide the machinery for the effective punishment in summary fashion of minor offenses and breaches of the peace that fall far short of being crimes which require more formal treatment. At common law this was the province of the justice of the peace. The keeping of the king's peace was one of the chief responsibilities as well as one of the great prerogatives of the crown. Prior to 1327 it was exercised by judges, sheriffs, coroners and constables, Lambard, Eirenarcha, pp. 3-22 (1607), 3 Burns, Justice (1793 ed.), pp. 2-4. The office of the justice of the peace had its origin in that year in the establishment of local conservators of the peace, by virtue of 1 Edw. 3, c. 16, which enacted that "in every county, good men and lawful, which shall be no maintainers of evil, or barretors in the country, shall be assigned to keep the peace." At first their authority was purely ministerial, paralleling that of the local constables. Gradually, however, they were granted judicial powers, and according to Lambard, Id. 23, after the passage of 32 Edw. 3, c. 1, they became known as justices. In 1360, by 34 Edw. 3, c. 1, they were given authority to "hear and determine at the king's suit all manner of felonies and trespass done in the same county."

2 Hawkins, Pleas of the Crown, p. 38; 1 Stephens, History of the Criminal Law of England 113 (1883). But it is clear that their primary duty was to keep the peace and that the powers gradually accorded them were merely in addition to their basic powers as conservators, 3 Burns, Justice (1793 ed.), p. 10. The authority granted by 34 Edw. 3, c. 1, to hear and determine trespasses included a wide variety of offenses. Sergeant Hawkins says that the word trespass "is a word of very general extent, and in a large sense not only comprehends all inferior offenses, which are properly and directly against the peace, as assaults and batteries and such like, but also all others which are so only by construction; as all breaches of the law in general are said to be.", 2 Pleas of the Crown 40. (Emphasis supplied) He goes on to say that all of these arise out of and were directly connected with the justices' duty to preserve the peace:

"* * * inasmuch as the chief end of the institution of the office of these justices, was for the preservation of the peace against personal wrongs, and open violence; and the word trespass in its most proper and natural sense, is taken for such kind of injuries, it shall be understood in that sense only in the said statute and commission, or at the most to extend to such other offences only as have a direct and immediate tendency to cause such breaches of the peace; * * *." 2 Id. 40.

Similarly in Bacon's Abridgement, which Sir Henry Maine has termed "our classic English digest," the distinguished author in speaking of "inferior offenses" says:

"And therefore, it hath been held, that not only assaults and batteries, but libels, barretry, and common nightwalking, and haunting bawdy-houses and such like offences, which have a direct tendency to cause breaches of the peace, are cognizable by justices of the peace, as trespasses within the proper and natural meaning of the word. * * *" 3 Bacon, A New Abridgement of the Law (4 th ed. 1778), 292. (Emphasis supplied.)

The significance of the jurisdiction of the justice of the peace over all forms of trespass, including assault and battery, is explained in 2 Holdsworth, History of English Law 364 (1923):

"This action [trespass] in Edward I's reign was a quasi-criminal proceeding, i.e., though it was a proceeding begun at the suit of the injured individual, it was aimed at serious and forcible breaches of the peace, and it ended in the punishment of the defendant as well as in compensation to the plaintiff. * * *

A trespass, then, in Edward I's reign is a tort insofar as it is begun by an action of the injured individual -- but it is of a criminal nature. A man can be punished for his trespasses by the court which tries the action * * *. It is to the mixed character of this action -- to its penal and its reparatory sides -- that we must look for the growth of the misdemeanor on the one side, and, on the other, for a form of civil action which will supplement the deficiencies of our early law of tort * * * when the general eyre declined and the itinerant justices confined themselves mainly to legal business, when the justices of the peace took over the smaller criminal business, it is felonies and 'trespasses' which will be presented to them for trial; and it is the trespasses so presented which will become the misdemeanors of our later law."

It is important to keep in mind the dual nature of trespasses, including assaults and batteries, especially when we come to examine the entries in the diary of William Hunt, justice of the peace for the County of Wilts (1744-1748).

By 11 Hen. 7, c. 3, the justices of the peace were empowered to "hear and determine all offenses and contempts" except felonies on information. Under this statute trials were had without indictment, presentment or jury, 4 Coke Inst. 41. This particular statute provoked so much discontent that it was repealed on the death of Henry VII, 1 Hen. 8, c. 6. But though the jurisdiction of the justices of the peace over all offenses and contempts except felonies was repealed, the steady growth in the number and variety of summary penal proceedings without indictment or trial by jury before one or more justices of the peace hereinbefore noted continued throughout the 18th Century. Writing of the 18th Century, Holdsworth says:

"We have seen that the stream of statutes, which gave to the justices of the peace their position of decisive importance in the government of the counties and the boroughs, had begun to flow in the Tudor period. That stream increased in volume right down to the nineteenth century. It not only added to and elaborated the duties imposed on many of the minor officials of the local government, such as constables, overseers, and surveyors of highways.

Throughout the eighteenth century, the working and interpretation of these statutes by single justices or pairs of justices, under the supervision of quarter sessions and the courts of common law, was creating new law and elaborating much old law on many different topics, which were more or less closely related to the topic of local government.

The primary duty of the justices was to keep the peace. That always must be the earliest and most permanent duty of officials entrusted with the powers of government, local or central. Therefore there was, from the first, a close connection between local government and the criminal law; and that connection was maintained long after the government had undertaken other tasks besides its primary task of keeping the peace. The many statutes which regulated the activities of citizens, which imposed obligations pecuniary or personal upon them, which organized public services, such as poor relief or road maintenance, necessarily provided for the punishment of those who disobeyed them. Therefore, whilst enlarging the governmental powers of the justices, they, at the same time continually enlarged their criminal jurisdiction. Since the criminal law, both substantive and adjective, had come to be a very technical body of law, the enforcement both of the old common law rules and of the new statute law, was no easy matter. Substantial justice must be done; but if that substantial justice was not done in conformity with the rules of a very technical system, the justices might easily expose themselves to personal liability.

A catalogue of the statutes which enlarged the jurisdiction of the justices, criminal or otherwise, would include a very large proportion of the statutes passed during the eighteenth century. Such a catalogue, however arranged, would be useless, since it would omit the common law rules, substantive and adjective, which those statutes presuppose, and the interpretation put upon these common law and statutory rules by the courts." 10 History of English Law 159-160 (1938).

Sidney and Beatrice Webb in their English Local Government, vol. 1 (The Parish and the County), 418, 419, give an even more specific account of the work of the justice of the peace outside of the quarter sessions:

"Their criminal jurisdiction ranged from the smallest misdemeanor penalized by a shilling fine, such as the utterance of an oath or the commission of a trivial statutory nuisance, up to the grave offenses of incorrigible vagabondage, rick-burning, or the killing of game, for which severe corporal punishment, a long term of imprisonment, or even in one case, seven years transportation could be inflicted. * * *

Yet there was no provision for any trial by jury or for the publicity of an open court. Even in prosecutions under such drastic

penal statutes as those relating to vagrancy and the preservation of game, the 'Single Justice' or the 'Double Justice' heard the case whenever he chose, without necessarily admitting the public, or even the defendant's attorney; took whatever evidence he deemed necessary, and himself decided both law and fact."

In referring to the diary of William Hunt, a justice of the peace for the County of Wilts for the years 1743-1748, they state:

"We see him doing something every two or three days, granting warrants and summonses, signing parish accounts, swearing persons to affidavits, issuing certificates and passes of one sort or another, disposing of petty cases of bastardy, assault, 'hedge-pulling' and non-payment of wages * * *." Id., 389 (Emphasis supplied.)

An examination of the entries in this diary dealing with assault and assault and battery reveals very clearly the dual nature of these offenses which Holdsworth has appropriately termed both torts and crimes, 2 Id., 364, supra. In many instances the parties agreed on the damages with the justice's consent either before or after hearing. Occasionally, however, we find an entry showing summary punishment:

31 Oct., 1744. Granted a warrant against Benjamin Lewis of Markett Lavington, for violently assaulting of Edward Ivey of the parish of Burbidge, sherieffs baylief, complainant. Upon hearing the evidence of William Bell and William Bishop was so clear against him that I committed him to the Bridewell at Devizes."

In England "bridewell" is a term applied to "a house of correction; loosely a jail or prison." Webster's New International Dictionary. Another example is:

"21 May, 1745. Granted a warrant on the complaint of Mary Draper of Easterton, for an assault upon her by Elizabeth Plank, Mary Draper, Sarah Draper, Mary Draper junior and Elizabeth Jarvis, all of Easterton; upon a hearing the said complaint their mittimus was made to the house of correction, but afterwards were released by consent of the parties, paying charges."

A "mittimus" in English criminal practice was "a precept in writing, issuing from a court or magistrate, directed to the

sheriff or other officer commanding him to convey to the prison the person named therein, and to the jailer, commanding him to receive and safely keep such person until he should be delivered by due course of law." Black's Law Dictionary 1153.

Occasionally we find instances where the justice of the peace held the defendant for the quarter session:

"6 July, 1745. Granted a warrant at the complaint of Richard Smith of Market Lavington, butcher, against John Kyle of Easterton, labourer, for assaulting him in the execution of his office of tithingman. I bound him over to the Quarter Session at Marlborough and indicted."

"29 July, 1746. Granted a warrant on the complaint of Thomas Hutchins of Earl Stoke against Edmund Matthews of the same, labourer, for an assault; upon his appearing I bound him over to the Quarter Sessions at Marlborough."

"17 Nov., 1746. Granted a warrant at the complaint of Jane Naish (wife of James Naish of Bulkington, yeoman) against her said husband James Naish on oath for assaulting, beating and abusing Jane Naish his said wife, without giving him any sort of provocation, for which she desired the said James Naish to find sureties of the peace, not out of any malice, hatred, evil will or revenge, but purely for the preservation of her person from danger and harm; upon hearing thereof the said James Naish was bound with sureties to appear at the next General Quarter Sessions to answer the premisses aforesaid."

Nor were these the only methods used by the justice of the peace in disposing of complaints of assault and battery. In addition to dismissals where the evidence did not warrant judicial action, we find that cases of assault were disposed of by the defendant's "promise of his good behavior in the future," "promising to receive his wife again and using her better for the future," entering into "a bond penalty of one hundred pounds, never to molest John Biggs and his wife any more," "upon the appearing of the parties they entered into bonds of each side never to offend each other on the penalty of one hundred pounds," "the defendant giving a note of hand not to strike the complainant any more." Sometimes the justice adjudged civil damages and waived criminal prosecution:

"4 March, 1745/6. Granted a warrant on the complaint of Henry Franklyn Esqr. of the parish of Worton against Robert Jones of Market Lavington, for assaulting and beating him upon the King's highway. Upon hearing it I found his abuse so great, that I adjudged the said Jones to pay Mr. Franklyn four pounds and 4 shillings and all charges of prosecution, which he did accordingly, and Mr. Franklyn forgave him."

The English practice of handling assaults and assaults and batteries from the simplest cases to the more grievous ones illustrated by the diary of Justice Hunt was codified for the first time in 9 Geo. 4, c. 31 (1828), dealing with various offenses against the person. Section 27 authorized summary proceedings before two justices of the peace for common assaults and batteries on penalty of a fine not exceeding five pounds or two months imprisonment on default of such payment. Section 29 gave the justice of the peace the right not to adjudicate the controversy if "from any other circumstance" it appeared to him to be "a fit subject for prosecution by indictment." There can be no doubt but that by "common assaults and batteries" was meant what we in this State have called "simple assaults and batteries," as distinguished from the high misdemeanors set forth in N.J.S. 2 A:90-1, 2, 3, supra. England met the problem of the broad range of assaults and of assaults and batteries by leaving to the determination of the justice of the peace whether the suit should be a summary one without indictment and trial by jury or one that he should submit to the grand jury for indictment and if indictment were found, to be followed by trial by jury. New Jersey has met the same basic problem by treating as disorderly conduct the acts which heretofore would have constituted the crime of assault or assault and battery, leaving for indictment and trial by jury the special kinds of assault and battery comprehended within the three kinds of high misdemeanors just referred to, thus sparing the defendant in the cases treated as disorderly conduct from the personal disgrace of a criminal record and all of the social and business disadvantages which flow from a criminal conviction, including the loss of his right to continue to hold any public office he then occupied, N.J.S.

2 A:135-9, or to qualify for a civil service position, R.S. 11:9-6, R.S. 11:23-2, or the right to serve as a juror, N.J.S. 2 A:69-1. In any event, there can be no doubt of the power of the justice of the peace at common law before 1776 to punish common or simple assaults and assaults and batteries summarily without presentment or indictment and without trial by jury.

II. THE GROWTH OF SUMMARY PROCEEDINGS, ESPECIALLY UNDER THE DISORDERLY PERSONS ACT

Broad though the jurisdiction of the justice of the peace was at common law both before and after 1776, it nevertheless was no more extensive than that of his modern successor, the municipal magistrate, embracing as it does the many violations of the motor vehicle and traffic laws, of the fish and game laws, of the ordinances of each municipality, of the disorderly persons law, of chapters 1 and 4 of the Poor Law (R.S., Title 44), of chapters 6 and 17 of Title 9 relating to children, of article 4 of chapter 5 of Title 30 relating to institutions and agencies, and "Offenses of a lesser grade or degree than a misdemeanor or as to which no indictment by a grand jury is required," N.J.S. 2 A:8-21. Each of these sources of the municipal magistrate's jurisdiction relates to offenses far too numerous to catalog. The Disorderly Persons Act alone, with which we are especially concerned, N.J.S. 2 A:170-1 et seq., consists of 96 sections, many of which deal with offenses far more serious in nature than simple assault and battery. The magnitude at the local level of the jurisdiction over disorderly persons can best be comprehended by enumerating the titles of the offenses proscribed in the successive sections of the act, but before listing them two observations spring to mind, both of which are pertinent to our present inquiry: (1) how could our courts of general criminal jurisdiction possibly function effectively in our complicated urban civilization of today if they had exclusive jurisdiction over all of these offenses either with or without a jury; (2) how many of these offenses smack

of common-law crimes or involve elements of them or are specialized instances of more general crimes? The wide sweep of the act appears from its table of contents:

"ARTICLE I. CERTAIN DISORDERLY PERSONS ENUMERATED.

Sec.

2A:170-1. Persons unable to give good account of themselves or engaged in illegal occupation, and in state for unlawful purpose; consorting with criminals.

2A:170-2. Common thieves, burglars and pickpockets.

2A:170-3. Carrying weapons or burglar tools with intent to break and enter or assault; presence in or near buildings or other places with intent to steal.

2A:170-4. Paupers, beggars and idlers.

2A:170-5. Prostitution; soliciting unlawful sexual or indecent acts.

2A:170-6. Diseased person having sexual intercourse.

2A:170-7. Fortune tellers.

2A:170-8. Use of narcotic drugs.

2A:170-9. Giving false alarm.

2A:170-10. Spitting.

2A:170-11. Air-raid shelter; refusal to admit or permit to remain.

2A:170-12. Alien not to act as detective.

2A:170-13. Driving horse while intoxicated.

2A:170-14. Abuse of animals or vehicles hired from livery stables.

2A:170-15. Marathons, etc., advertising, conducting or performing in; exceptions.

2A:170-16. Mercury; use in treating hatters' fur, etc.

2A:170-17. Persons possessing ammunition, explosive missiles, fuses, etc., to notify police; presentation for inspection.

2A:170-18. Possession of lottery or numbers slips.

2A:170-19. Persons representing themselves to be members of armed forces or auxiliaries; wearing insignia to induce ...


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