Goldmann, Freund and Conford. The opinion of the court was delivered by Goldmann, S.j.a.d.
Defendant was charged by Officer DiOrio of the Newark Police Department with (1) assault and battery upon DiOrio at West and William Streets, Newark, in violation of N.J.S. 2 A:170-26; (2) uttering loud and offensive language at 126 Springfield Avenue, Newark (across the street from West and William Streets) in violation of N.J.S. 2 A:170-29(1); and (3) interfering with DiOrio in the lawful discharge of his duties, in violation of section 20.24 of the Revised Ordinances of the City of Newark (1951) -- all of the alleged offenses occurring on August 23, 1954. After trial, the Municipal Court of Newark found defendant guilty on all three charges and imposed the following sentences: $50 fine, a suspended sentence of one year, and probation for one year, on the assault and battery charge; $50 fine for loud and offensive language, and $50 fine for interfering with a police officer. Defendant appealed to the Essex County Court which, after a trial de novo without a jury, found him guilty as charged and imposed a nine-months' jail sentence for assault and battery, a similar sentence (to run concurrently) for using loud and offensive language, and suspended sentence on the charge of interfering with an officer. Defendant thereupon appealed to this court claiming that the record does not support the convictions, there being no proof of guilt beyond a reasonable doubt.
The case arises out of a series of incidents occurring in front of 126 Springfield Avenue and across the way at West and William Streets in Newark about 12:30 on the morning
of August 23, 1954. There is an extreme variation, if not a complete contradiction, between the testimony of the two Newark police officers involved and that of defendant and his four supporting witnesses. As to the charge of loud and offensive language, we may fairly summarize the proofs by saying that we have defendant's word, almost entirely uncorroborated, against that of the police officers, equally unsubstantiated except in the light of possible inferences flowing from subsequent events. Insofar as the charge of police interference is concerned, the issue again stands pretty much on the unsupported word of defendant as against the police story; resolution of that issue depends upon what the trial court was entitled to find from the evidence that defendant and the police officers did and said to each other in front of 126 Springfield Avenue on the occasion in question.
So far as the assault and battery charge is concerned, however, defendant's position has substantial support in the testimony of his witnesses and the circumstances surrounding the happenings of that early morning. The case for the State, on the other hand, rests exclusively on the version given by the policemen, a version -- as is pointed out in defendant's careful analysis of the testimony -- attended by a number of improbabilities, contradictions and circumstantial weaknesses. The essential question posed is whether these weaknesses, in the light of the strength of the defense, are sufficiently pervasive to overbalance the weight which we must give to the opportunity of the trial court to observe the witnesses and thereby judge of their credibility -- in short, whether the case as a whole was such that a fact-finder could conclude from the evidence that defendant was guilty beyond a reasonable doubt. Defendant also urges that we consider possible bias on the part of the police witnesses, and the soundness of the oral conclusions of the trial judge.
A full appreciation of the proofs requires that we note at once that the police officers involved in this case, and their witnesses, are white; defendant and his witnesses are all Negroes. The scene of the occurrence is in a predominantly Negro neighborhood.
A detailed account of the conflicting testimony is necessary for a proper understanding of the problems posed by the record and essential to our resolution of the appeal.
The police version of the episode is substantially this: Officers DiOrio and Ferrante of the Newark Police Department were patrolling their beat shortly after midnight when they noticed a group of people, all Negroes, congregated around a parking meter at Springfield Avenue and West Street where their automobile was parked. There had been numerous complaints about thefts from parking meters, and so they walked across the street to investigate. While they were talking to the group and had just about satisfied themselves there was nothing wrong, defendant came upon the scene and pushed his way into the center of the group, demanding to know what was going on. Upon being asked whether he belonged with the group defendant said he did not, whereupon he was told that this was police business and he should be on his way. There is some variation in the testimony of the officers as to which of them first engaged Taylor in conversation and told him to move on. When defendant then said he was going to make it his business, he was again told to leave. He refused, telling DiOrio that "no little [obscenity] cop was going to tell him what to do." DiOrio said he was not going to stand for that kind of talk, to which defendant replied that the only reason the officers had stopped and questioned the people was because they were colored, and the only reason for telling him to move on was because he was colored. He added: "You cops have been getting away with this [obscenity] long enough." He spoke of having very influential friends, said he was going to bring the officers up on charges, and demanded their badge numbers. DiOrio then told defendant he was under arrest. It was at about this time that Ferrante sent the group under investigation, then seated in their car, on their way; the car drove off. DiOrio proceeded to arrest defendant by seizing his arm. Taylor, who was six feet tall and weighed
300 pounds, jerked or thrust his arm in such a manner as to send DiOrio, who was some four inches shorter and weighed 149 pounds, sprawling to the ground. Thereupon Ferrante, who was six foot two and weighed 255 pounds, grabbed defendant's arm in a hammerlock, and the two officers then escorted him across the street to a police callbox at the intersection of West and William Streets and Springfield Avenue. Ferrante's testimony was that defendant was belligerent and had to be restrained as they crossed the street; DiOrio said he went quietly.
The police account continues, that on reaching the intersection Taylor was ordered to face a wall located some 10 or 15 feet from the callbox, raise his hands above his head and place them against the wall. Ferrante proceeded to put in a call for the patrol wagon, while DiOrio, standing in back and a little to the right of defendant, began to search him. Suddenly defendant turned around, striking DiOrio's neck with his left forearm and again knocking him to the ground. Taylor started to run in the direction of Ferrante, who tried to stop him and then hit him with two "judo chops," delivered with the side of the hand, one against the jaw and the other to the back of the neck. Defendant went face-down on the ground. Ferrante picked him up and saw that his face was bloody. Shortly thereafter the patrol wagon arrived. Two of the policemen on the wagon also testified that defendant's face was bloody.
DiOrio testified that when defendant struck and knocked him down the second time he said, "You can't lock me up." He admitted, however, that he testified in police court that the remark made by defendant at that time was a repetition of the obscene epithet ascribed to him in front of 126 Springfield Avenue; also that Ferrante rescued him from defendant, rather than that defendant ran into Ferrante. Ferrante testified that he did not hear defendant say anything at all at the corner of West and William Streets, although he claimed to have seen him strike DiOrio.
Defendant's version differed completely from that of the officers. He lived only a few houses from the scene, at 136
Springfield Avenue. On the night in question he was walking to a nearby restaurant when he noticed a number of people across the street, looking at a car parked on his side, in front of No. 126. Two policemen were looking in through the open doors of the car, in which five or six people were seated. As he came abreast of the car, he slowed his pace and out of curiosity leaned down and peeped into the car to see what was going on. DiOrio saw him and shouted to him to move on, "Beat it," and Ferrante asked him whether he had anything to do with the people in the car. He said "No"; he denies saying he was going to make the affair his business, or that he went over to the curb where the car was parked. Ferrante then said, "Well, get the hell along," whereupon defendant continued on at a very slow pace, but he did not stop. He testified that Ferrante rushed over and pushed him on both shoulders saying, "Get the hell along," to which he replied that he didn't think Ferrante should push him and that as a citizen it was the officer's duty to protect him rather than abuse him. Contrary to the officer's testimony, he denies that he threatened disciplinary action. Ferrante then grasped him by the collar of his sport shirt, pushed him a few feet up the street and said, "You want to be a smart s.o.b. [using the words]? We'll take you to the Fourth Precinct." The officers told him to raise his hands and searched him; he did not resist. Just before this the officers had indicated to the people in the car that they should leave, and they did.
Again contradicting the officers, defendant denied he said he had influential friends downtown or that he asked for their badge numbers. He also denied using the offensive language to which the officers testified or that he had said they were discriminating against him and the people in the car because they were colored. He further denied that he pulled his arm from DiOrio's grasp or that DiOrio had fallen to the sidewalk at any time in front of 126 Springfield Avenue. He said that after he had been searched he and the officers proceeded across the street to the corner of West and
William Streets. Ferrante did not have a hammerlock on him, but held him tightly by the sleeve until they reached the opposite curb, when he let go of him. Ferrante then ordered him to put his hands against the wall and he stood there with DiOrio behind him while Ferrante put in a call for the patrol wagon. Defendant saw several people nearby -- Mrs. Smart, Mr. Jones and Mr. King, who appeared as defense witnesses.
While defendant was standing at the wall Ferrante asked him for identification and he showed his driver's license. Ferrante also asked him whom he knew and he said he knew quite a few people around. Defendant was then asked what organizations he belonged to and he said he was interested in labor. He denied the entire story of swinging around and striking DiOrio, or attempting to run away, or of having been struck in any manner by either of the officers. He said they just waited there and nothing happened until the patrol wagon came, and that there was no blood on his face when he got into the wagon. Some time before the patrol wagon arrived, defendant's wife came running across the street. Ferrante asked her where she was going and she told him defendant was her husband and she wanted to talk to him. Ferrante said she could not because he was under arrest and when she insisted he pushed her back, whereupon defendant told her to get a lawyer and she went back across the street. The patrol wagon arrived shortly afterwards.
The significance of the testimony concerning the condition of defendant's face at the time he got into the patrol wagon is that when he was released by the police the next day and made a statement for the purpose of a departmental hearing against the two officers, his face showed evidence of his having been subjected to a brutal assault. He testified -- significantly, without contradiction -- that his face then was bloody, there were bruises on his shoulders, back, left side and on the right side of his chest, his lips were ...