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). Oliphant and Burling, JJ., concur.
[17 NJ Page 37] On August 13, 1953 two complaints were filed in the Municipal Court of North Bergen charging the defendants with committing an atrocious assault and battery on August 11, 1953. Thereafter the defendants appeared before the municipal magistrate who ordered that they be held to await the action of the grand jury. On November 17, 1953 the Hudson County grand jury returned an indictment against both defendants, the first count charging an atrocious assault and battery contrary to the provisions of
N.J.S. 2 A:90-1 while the second count alleged an assault and battery in violation of N.J.S. 2 A:85-1.
On March 30, 1954 the defendants were tried on both counts of the indictment in the County Court before a jury, which found them not guilty of atrocious assault and battery charged in the first count, but guilty of assault and battery under the second count. Thereafter a motion was made to set aside the conviction on the ground that the County Court had no jurisdiction over assault and battery, which became a disorderly persons offense on January 1, 1952. The trial judge denied the motion on the ground that although simple assault and battery itself was no longer a crime in New Jersey, where it exists as a component part of a greater crime over which the court does have jurisdiction the court may enter a judgment of conviction. The county judge sentenced both defendants to six months in the county jail and it is from this conviction that the appeal is taken. We certified the appeal on our own motion while it was pending in the Appellate Division.
It is to be noted that the offense, the indictment and the trial were long after January 1, 1952, the effective date of N.J.S. 2 A:170-26, providing among other things that:
"Any person who commits an assault or an assault and battery is a disorderly person."
Obviously the defendants should have moved to dismiss the second count of the indictment relating to simple assault and battery because it was no longer an indictable offense. The State had a like responsibility for the same reason and the trial judge should have acted on his own motion.
The trial court in denying the defendants' motion stated:
"Upon the argument it was contended that what the court has before it is an exclusive case of assault and battery, since that is the charge as framed separately in the second count upon which the verdict was expressly rendered. I find the contention to be without merit. A separate count for assault and battery secondary to a prior count for a crime that includes assault and battery is surplusage,
for the reason that such a second count contains nothing that is not entirely within the ...