On certified appeal from the Hudson County Court.
For reversal -- Chief Justice Vanderbilt, and Justices Wachenfeld, Jacobs and Brennan. For affirmance -- Justices Heher, Oliphant and Burling. The opinion of the court was delivered by Vanderbilt, C.J. Heher, J. (dissenting). Mr. Justice Oliphant and Mr. Justice Burling join in this opinion.
Three indictments were returned on December 9, 1952 against the defendant by the Hudson County grand jury, one for non-support of his wife, another for threatening to kill her, and a third, with which we are here concerned, containing two counts, the first count charging atrocious assault and battery and the second count charging simple assault and battery. All three indictments allege that the defendant committed these offenses on July 27, 1952. At that time N.J.S. 2 A:170-26, which was passed December 5, 1951, effective January 1, 1952, was in full force and effect, providing, among other things, that:
"Any person who commits an assault or an assault and battery is a disorderly person."
Obviously the defendant should have moved to dismiss the second count of the third indictment relating to simple assault and battery because it was no longer an indictable offense. For the same reason the State had a like responsibility, and the trial judge should have acted on his own motion.
The defendant, having waived trial by jury, was found not guilty on the two first indictments and the first count of the third indictment charging atrocious assault and battery, but guilty of the second count of the third indictment charging simple assault and battery, which as we have seen was no longer a crime. The finding of the trial court was obviously made in the face of the quoted statute.
In State v. Maier, 13 N.J. 235 (1953), this court sustained the constitutionality of N.J.S. 2 A:170-26 downgrading to disorderly persons offenses the former crimes of assault and assault and battery. In due course a judgment of conviction with suspended sentence was entered here, and the defendant thereupon moved to set aside the judgment of conviction on these grounds:
"1. The court was without jurisdiction to hear a case involving assault and battery, and therefore could not convict of an offense of which it did not have jurisdiction to hear, the local magistrate
having jurisdiction of assault and battery under the Disorderly Persons Act.
2. The indictment of Atrocious Assault and Battery No. 343, 2 A:90-1, was dismissed and the Court could not convict of a lesser offense which it did not have jurisdiction to hear.
3. The crime of assault and battery is not an indictable offense.
4. The Court by its judgment and verdict cannot adjudge a defendant a criminal and stigmatize him as a criminal for a simple offense under the Disorderly Persons Act which should be tried by a local magistrate."
The trial court denied the motion and the defendant appealed, urging the same grounds as in his motion, and sought certification, which we granted. 10 N.J. 311. The defendant relies on the Maier case.
The State concedes that since January 1, 1952, the effective date of N.J.S. 2 A:170-26, there may not be an indictment for assault or assault and battery, but it maintains that there may nevertheless be a conviction of simple assault or simple assault and battery on an indictment for atrocious assault and battery (a high misdemeanor under N.J.S. 2 A:90-1), without any reference in the indictment to simple assault or simple assault and battery, because, it is said, simple assault and simple assault and battery are component parts of the high misdemeanor of atrocious assault and battery and the Legislature has not undertaken to change the crime of atrocious assault and battery in any respect. Accordingly, the State maintains that on an indictment for atrocious assault and battery alone, the jury may return a verdict of guilty of simple assault or of simple assault and battery without finding the defendant guilty of atrocious assault and battery. But to do so is to completely ignore the plain direction of the Legislature that simple assault and simple assault and battery are disorderly conduct within the sole jurisdiction of the municipal court.
One has but to carry the notion advanced by the State through a trial for atrocious assault and battery to see how utterly unworkable it is, what confusion it must necessarily engender in an otherwise simple trial, and how inevitably it would defeat the legislative intent to make assault and
assault and battery disorderly persons offenses rather than crimes. The Legislature decided -- and wisely -- that if we are to achieve adequate law enforcement against such serious crimes of violence as murder, manslaughter, rape and atrocious assault and battery, particularly of the sort popularly known as mugging, the grand juries and the Superior Court and County Courts must not be burdened with every family row and backyard or apartment hall spat, or neighborhood fracas, but must be left free to deal with the more dangerous kinds of crimes, leaving these family and neighborhood offenses to the speedy and more effective disposition that can best be accorded them at the municipal level by the local magistrate. The Legislature, in downgrading simple assault and simple assault and battery to disorderly conduct, had in mind the host of such cases that were being sent up each year to the grand jury only to have no action taken on them by the grand jury, either because of lack of time due to its preoccupation with more serious offenses or because simple assault and battery seemed to it to be relatively unimportant. In this process many offenders against peace in the neighborhood have escaped all punishment for their misconduct. It was to prevent offenders from repeating their interference with their neighbors that the Legislature passed the statute above referred to in the interest of law and order at the local level.
The unworkability of the notion urged by the State may be demonstrated best by tracing its practical effect on a trial back from a jury verdict to the opening of counsel to the jury. If a jury on an indictment for atrocious assault and battery alone were to be permitted to bring in a verdict of guilty of simple assault or of simple assault and battery rather than a verdict of guilty of atrocious assault and battery as charged, it must necessarily be on the basis of a charge of the court authorizing it to do so. But the jury cannot be expected to know of its own knowledge without judicial instruction what offense or offenses are included within the crime charged when they are not mentioned in the indictment. The indictment, it must be remembered, goes with the jury
into the jury room and is used by it as the basis of its deliberations. If the judge may charge the jury on simple assault or simple assault and battery on such an indictment, what is he to say about the subject without doing violence to N.J.S. 2 A:170-26, supra, making these offenses disorderly conduct? To what statute may he refer, dealing with the simple assault or simple assault and battery as a crime? If the jury should ask, as it properly might, what is the punishment that he may inflict for simple assault or simple assault and battery in the pending suit in his court, what response may he make, and under what authority? And if the trial court may charge the jury as to simple assault or simple assault and battery not mentioned in the indictment for atrocious assault and battery alone, surely the trial court must listen to counsel's requests to charge on the matter. And if counsel is entitled to make such requests to charge and the judge is obliged to make such a charge with respect to simple assault and simple assault and battery on an indictment for atrocious assault and battery alone, it inevitably follows that counsel has a right to open to the jury on the subject and thus to convert what started to be a trial with a single issue -- was the defendant guilty of atrocious assault and battery? -- into a trial of two issues, one of which is not mentioned in the indictment. And throughout the trial counsel must be permitted to ask questions relating to offenses not mentioned in the indictment and no longer crimes, i.e., simple assault and simple assault and battery, to the utter confusion of the jury. Under such a confusing state of the law he would be justified in taking ...