On motion to set aside verdict.
These defendants were tried by a jury and found guilty of assault and battery. The verdict was rendered expressly under the second count of the indictment, the first count charging atrocious assault and battery. Defendants move to set the verdict aside on the ground (a) that it is against the weight of the evidence and (b) that this court is without jurisdiction to pronounce sentence on the verdict as rendered by reason of the provisions of N.J.S. 2 A:170-26, as the same are emphasized by N.J.S. 2 A:85-1. The second of these grounds will be considered first.
N.J.S. 2 A:170-26 reads: "Any person who commits an assault or an assault and battery is a disorderly person." N.J.S. 2 A:85-1 reads: "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." (Italics added.) The effect of these enactments is unquestionably, within the legislative import that I find in them, to reduce the formerly known misdemeanors of assault and assault and battery to the category of disorderly conduct, to place these offenses within the jurisdiction of the local magistrate, and to render them cognizable
for summary disposition, that is without indictment or jury trial. Had the present indictment contained no more than the charge of assault and battery, it is my opinion that the motion would have to prevail; but as indicated, that is not the case.
The clearest distinction must be observed, I think, between a situation like this where assault and battery is presented as an ingredient or constituent element of a greater offense, and one where the charge is assault or assault and battery exclusively. Jurisdiction must be judged in relation to what it is that the court has before it for trial. Here there was an indictment for atrocious assault and battery, the court's jurisdiction over which is indisputable; and once this jurisdiction attaches it cannot be reduced or impaired, I am convinced, so as to divest the court of the power and authority to deal judicially with a resulting conviction of assault and battery, within the limits of the punishment prescribed by the moderating statute. We are dealing with a peculiar problem, created by the legislative innovation. It is fundamental that a jurisdiction, especially one long founded, is not to be annulled by mere inference or implication or on dubious grounds, and statutes claimed to be in derogation of it must have strict construction. N.J.S. 2 A:170-26, moreover, has definite limitations of its own. It deals with each of its subject offenses absolutely per se. There is no hint of their being contemplated as elements of higher crime nor of their being thought of as factors in problems arising out of such a relation, as in the case before us. The statute makes no provision for that contingency, and for all that appears it is oblivious of its possibility. Meanwhile, within that omission, the ancient jurisdiction must, as I see it, stand unaffected.
Were the intent of N.J.S. 2 A:170-26 to be carried as far as these defendants urge, the result would operate in this and all similar cases to bring extensive defeat to the lawmakers' aim, as I believe will be plainly shown. An elementary principle of interpretation forbids us to assume unnecessarily
that the Legislature intended its enactment to be so drastically at cross purposes with itself.
From its inception and until the pronouncement of the verdict the charge here was one of atrocious assault and battery; and we are bound to assume in all cases that the testimony heard by the grand jury was such as to establish prima facie the crime for which the indictment was presented. When trial of the indictment is moved, no constituent of the criminal act or episode in issue is or can be prescinded. And the traverse of an indictment goes unavoidably to every element to which the plea of "not guilty" is directed. Assault and battery was so imbedded in the present charge that no theory ascribable to the statute could have removed it nor, indeed, could ever have prevented it from becoming so imbedded.
The logic of defendant's motion is far-reaching. It urges in effect that in any prosecution of a crime embodying the element of assault and battery -- and such crimes, as need not be pointed out, are numerous, varied and heinous -- a resultant verdict of assault and battery must in and of itself render the court destitute of further authority to deal with the offense thus established, even within the penalty as reduced. It is plain to me that such could never have been the legislative intent. Clear instruction on this point is implicit in the Supreme Court's dissertation in State v. Maier , 13 N.J. 235 (1953). The legislative plan was, in addition to that specifically set forth in the majority opinion (Ibid., pp. 242-3), undoubtedly to relieve the administration of the criminal law of an avoidable burden by making a wider allotment of the commonplace lesser misdemeanors in question to the jurisdiction of the magistrates. Where, in a prosecution in a county or Superior Court for a higher and inclusive crime, defendant is found guilty of an ...