On certification granted.
For affirmance -- Chief Justice Weintraub, and Justices Wachenfeld, Burling, Jacobs, Francis and Proctor. For reversal -- Justice Heher. The opinion of the court was delivered by Wachenfeld, J. Heher, J. (dissenting).
The defendant waived trial by jury and was convicted by a judge of the Bergen County Court of the crime of atrocious assault and battery. N.J.S. 2 A:90-1. An appeal was taken and, at this juncture, we granted certification to the Appellate Division on our own motion.
The only ground urged for reversal is that the injuries sustained by the victim were not sufficiently severe to warrant a conviction of atrocious assault and battery.
The defendant admits striking the victim in the face with his fist and pushing her into some bushes, but claims his actions amounted to only simple assault and battery. Formerly a crime, simple assault and battery has now been downgraded to a disorderly persons offense which is triable only in the municipal court. State v. Maier, 13 N.J. 235 (1953). Thus, if the defendant's contention is correct, the Bergen County Court had no jurisdiction over his offense.
On September 1, 1957 the defendant and one Mary Harbochuk had been making the rounds of various taverns in Passaic, Carlstadt and East Rutherford. She claimed the altercation ensued when the defendant tried to kiss her on the public street and she resisted his advances. He contended he had attacked Mary because she refused to return $40 he had entrusted to her. In any event, the girl was found by the police "moaning in a pitiful manner" and in
a "semi-nude" condition. She was "hysterical," with her dress up and wearing nothing from the upper abdomen down, and her pants and shoes were found in the general area. She could not say whether sexual intercourse had been attempted since, as a result of the struggle, she became "semiconscious." She was lying in the bushes on a vacant lot, about ten feet from the sidewalk. The injuries sustained as a result of the battery were multiple scratches and bruises.
Mary testified: "I had a bruised lip and I had black and blue marks under my chin, on my chin, under my eye, on my forehead, my neck and inside my thighs and scratches all over." She testified the scratches had been bleeding. Two photographs showing her physical condition were offered in evidence. The marks on her neck were apparent for "two or three weeks" later; they "gradually went away."
Police Officer Meyers testified she was "quite bruised and her left eye was bruised and her neck had a few scratches on. Her lip was bruised, had a bruise." He also stated one of her eyes was discolored.
Police Lieutenant Shevak saw the victim after she had been discharged from the hospital: "* * * she had a badly swollen eye, a lot of scratches around her neck, a split lip and bad bruises on the back of her left ear."
Dr. Coenca, an interne at the Hackensack Hospital who had treated the victim in the emergency room, stated: "She had scratches on her face and neck and scratches on her legs and things and some bruises too. * * * I think she had some very superficial lacerations around the eyes on one side and the cheek, I think -- but very superficial -- merely scratches more than lacerations." Her left eye had "a very small laceration but it was not deep enough to be sutured." The victim remained at the hospital two or three hours.
When asked by the court, "Could you characterize the injuries as showing a savage or brutal beating?", the doctor replied: "It might be, but -- I cannot be sure."
As to the attack itself, Mary testified: "He grabbed me by the throat. He dragged me a little ways into a lot and
I started screaming. * * * I was struggling with him. So he brought me back further into the lot and he got me on the ground and he had his knee in my stomach and was chocking me and I was trying to fight him off. I kept getting near unconsciousness. * * * I thought he was going to kill me right there and I got on top of him once and started chocking him but I couldn't hold him. * * * The next thing I remember was the emergency crew came and I saw lights and a stretcher."
The defendant's version of the attack appears in his voluntary statement, in which he said: "I struck her with my fist in her face, then I pushed her into the bushes near the sidewalk, then she fell down and I took my money and I left."
The inquiry thus arises whether the attack and the results of it were sufficient to bring the crime within N.J.S. 2 A:90-1, under which the defendant was indicted. The statute reads as follows:
"Any person who commits an atrocious assault and battery by maiming or wounding another is guilty of a high misdemeanor."
The trial judge, in the course of his oral opinion, said:
"The law says that where a maiming or wounding is done by assault and battery that is savagely brutal or outrageously, or inhumanly cruel or violent, it amounts to atrocious assault and battery within the meaning of the statute."
He defined "wounding" as meaning "injuring or hurting of a body such as bruising, contusing, lacerating, fracturing, dislocating, ...