Price, Haneman and Schettino. The opinion of the court was delivered by Price, S.j.a.d.
Appellant seeks to reverse a judgment of conviction entered against him as the result of the verdict of a jury on an indictment for atrocious assault and battery, N.J.S. 2 A:90-1, returned to the Superior Court, Warren County.
Defendant Maxwell was jointly tried with one John C. Snyder against whom a similar but separate indictment had been returned. Both defendants were convicted. Snyder has not appealed. The atrocious assault and battery was alleged to have been committed by Maxwell and Snyder on one Donald Martin in White Township, Warren County, N.J., on June 15, 1957. The defense was a complete denial of the commission of the crime, with the added contention by defendants that they were not at the scene at the time
of its alleged commission. They offered alibi witnesses. The trial took place, by assignment, before the County Court judge and a jury on November 22, 1957. Judgment was entered December 20, 1957. The judgment suspended the imposition of any jail sentence, defendant was placed on probation for a period of three years and fined $500. By virtue of R.R. 1:4-3(d) the probationary order was stayed pending appeal. On application by defendant payment of the fine was similarly stayed.
Counsel for defendant Maxwell in his brief and at the argument of the appeal asked that, should reversal be ordered on the appeal by defendant Maxwell on some ground applicable to both defendants, Snyder be afforded such relief as justice would dictate.
Appellant Maxwell contends that the trial court erred in refusing to grant defendant's motion for acquittal based on the contention that atrocious assault and battery had not been proved. The motion was based on the ground that the elements of wounding or maiming , essential to the offense had not been established.
Emphasis is placed by appellant on the contention that the crime of atrocious assault and battery remains indictable as a high misdemeanor under the provisions of N.J.S. 2 A:90-1 which provides:
"Any person who commits an atrocious assault and battery by maiming or wounding another is guilty of a high misdemeanor." (Emphasis supplied.)
The case of State v. Capawanna , 118 N.J.L. 429 (Sup. Ct. 1937), affirmed 119 N.J.L. 337 (E. & A. 1938), is cited in support of the claim that the indictable offense of atrocious assault and battery requires the element of atrociousness in the form of a "maiming or wounding," savage and cruel in character. It is emphasized that such crime is in contrast to the offense of assault and battery now downgraded to constitute the violator a disorderly person. Assault and battery is no longer an indictable offense. N.J.S. 2 A:170-26. State v. Chiarello , 17 N.J. 36
(1954). Appellant urges that the evidence in the case at bar establishes neither maiming nor wounding of the complaining witness.
We are of the opinion that the trial court properly denied the defendant's motion for a judgment of acquittal. The indictment alleged that the defendant "did commit an atrocious assault and battery upon Donald Martin by atrociously striking, beating, cutting, lacerating, wounding and maiming him * * *." The testimony on behalf of the State was that Maxwell and Snyder in separate automobiles forced Martin's automobile to stop as he was driving with his sister on Buckley Avenue in White Township aforesaid, ordered him out of the car; that Maxwell swung at him and missed him, then Snyder tackled him and brought him to the earth, "wrapped" his arm around a roadside fence cable and then both Maxwell and Snyder kicked and punched him in the chest, face, and legs. He was badly bruised and injured in his back, thighs, face and nose. He sustained abrasions of the soles of his feet. He suffered a laceration near his eye. His nose and the laceration near his eye bled. The laceration required suturing. His foot, arm and leg had to be bandaged and he was given a tetanus shot. His right arm, wrist and right leg were swollen. His injuries required treatment by his physician on three or four occasions. Martin weighed about 165 to 170 pounds; Maxwell about 250 pounds. The nature of the attack and the resulting injuries were within the scope of the indictment and the statute. State v. Capawanna, supra; State v. McGrath , 17 N.J. 41, 49 (1954); cf. State v. Riley , 49 N.J. Super. 570, 576 (App. Div. 1958).
Appellant contends that the "evidence did not permit the jury to find that the victim had been savagely and brutally assaulted" and that the prosecution "utterly failed to show by its proof any more than an assault and battery." We find no merit in this contention.
Appellant charges prejudicial error in the refusal of the trial judge to grant the application of counsel for defendants Maxwell and Snyder for the issuance of a bench warrant
to compel the attendance of a defense witness who had failed to respond to a duly served subpoena. Initially the court granted the motion for the issuance of the bench warrant for the witness, one Howard Bankhardt, and then revoked his action and denied the application. Defendant Maxwell contends that the trial court's action deprived him of his right to compulsory process in violation of the Sixth Amendment of the Constitution of the United States of America and in violation of Article I, paragraph 10 of the ...