[41 NJSuper Page 340] The defendant-appellant, hereinafter referred to as the defendant, was convicted in the Municipal
Court of the Village of South Orange, New Jersey, of being a disorderly person, by reason of having assaulted a police officer. The offense occurred on May 19, 1956. The proceeding before the magistrate in this matter was reported stenographically and this appeal is on such record, pursuant to R.R. 3:10-10.
On the evening in question the defendant and some 40 to 50 other young people attended a party at the home of Miss Phyllis Smargiassi, at 135 Ward Place, South Orange, New Jersey. The defendant left the party at approximately 10:30 P.M. in the company of Fred Goebel, Janet Goebel and Dorothy MacKinnon. All four went across to the easterly side of Ward Place, entered Fred Goebel's car and sat talking. Mr. Goebel and the defendant sat in the front of the car, while the young ladies sat in the rear.
At approximately an hour later Philip Douglas, another guest at the Smargiassi home, left the party in the company of one Elaine Rainone. While passing the Goebel car Mr. Douglas turned to look at the defendant and his companions and pretended that he was going to throw a beer can in the direction of the car. Defendant sounded the car horn, waved to Douglas, and then resumed his conversation with the other occupants of the automobile.
Shortly thereafter, Fred Goebel called the defendant's attention to the fact that two men had come out of a nearby house and were talking to Douglas. The defendant, according to his own testimony, "turned back and continued talking again. Then after that we heard loud voices, and so I said to Freddie, 'Let's go over and see what's wrong.'"
The defendant and Goebel left the car and walked across the street where they met two other guests of the party who were walking back toward the Smargiassi home. The defendant asked these two guests what was wrong between Douglas and the two strangers, and the reply was that "Phil was having an argument." The defendant stood a short distance away listening to Douglas and the two strangers and then, according to the defendant, about that time the scuffle started. Defendant then ran to the scene, grabbed
the man closest to him, "picked him off and turned him around," and in his own words, it was "then when I saw it was him and I let him go."
The man the defendant saw and thus recognized was Joseph Newman, a South Orange police officer. Officer Newman was in the company of Franklin Smith, a fellow police officer who was visiting the Newman home, at 127 Ward Place, on the evening in question. The officers both testified that they saw a young man and young lady (apparently Philip Douglas and Elaine Rainone) walking in the direction of the Newman home. They saw Douglas make a movement to throw something into the street. A conversation ensued, angry words followed, and the officers placed Douglas under arrest. Douglas then attempted to run away, according to the officers' testimony. Officer Newman grabbed Douglas to prevent him from evading arrest, and it was at this point that the defendant grabbed Newman. According to officer Newman, the defendant did not release him (Newman) immediately.
The two officers were in civilian clothes and there was no way of identifying them as police officers. Whether they identified themselves orally is a disputed factual question.
The defendant, while admitting touching the police officer, urges that his conduct was justified on the ground of defense of a social friend being assaulted. There appear to be no New Jersey cases on the right of ...