Goldmann, Freund and Foley. The opinion of the court was delivered by Freund, J.A.D. Foley, J.A.D. (dissenting).
Defendant appeals from a County Court judgment of conviction, after a trial de novo without a jury, "for assault and battery and the use of loud and abusive language in violation of N.J.S. 2A:170-26 and 29 [ N.J.S.A. ]." This judgment affirmed the conviction entered in the municipal court of the Township of Hillside, N.J.
Preliminarily, we note procedural irregularities in both the municipal and County Court. The municipal court complaint charged defendant in a single count with assault and battery in addition to use of loud and offensive language "in violation of Section 2A:170-26, 29 of the New Jersey Statute." The appendix does not contain the municipal court judgment; however, a reading of the briefs and the findings and judgment of the County Court indicates that the municipal court imposed a single fine of $25 upon defendant for both offenses. The County Court considered only the single complaint containing both charges and reduced the fine to $10.
R.R. 3:4-7 permits two or more offenses relating to "the same or similar character or are based on the same act or
transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan" to be charged in the same indictment "in a separate count for each offense." Our rule is a modification of Federal Criminal Rule 8(a). The rationale for this requirement is obvious. Criminal proceedings demand clarity. State v. LaFera , 35 N.J. 75, 81 (1961). As this court noted in State v. Torrance , 41 N.J. Super. 445, 452 (App. Div.), certif. denied 23 N.J. 59 (1956), "[i]t is settled that an indictment [or complaint] containing a single count cannot be utilized for the purpose of joining separate and distinct offenses, even of a like nature." Similarly, a trial court should specify the sentence for each offense charged in an indictment or complaint. State v. Cianci , 18 N.J. 191, 194 (1955), cert. denied 350 U.S. 1000, 76 S. Ct. 555, 100 L. Ed. 864 (1956); State v. Quarto , 44 N.J. Super. 120, 125 (App. Div. 1957), cert. denied 355 U.S. 850, 78 S. Ct. 73, 2 L. Ed. 2 d 60 (1957). In the present case, defendant has not been prejudiced by these irregularities. He failed to object below to the defective complaint or to the manner in which the fine was imposed. He does not argue these irregularities on appeal. However, we take this opportunity to emphasize that, where two or more separate offenses are incorporated in an indictment or complaint, there should be separate counts for each offense. Where there are separate offenses, the trial judge is required to impose a precise sentence for each offense.
The essential facts of the case are as follows. Defendant described his trade as "a memorialist. We deal in monuments for the deceased families." He is the owner of the property at 1200 North Broad Street, Hillside, where he displays monuments. The property of the complaining witness Herbert F. Jacobi, a retail florist, is adjacent, at 1202-14 North Broad Street. On or near the boundary between these properties, defendant had erected granite posts connected with iron bars or pipes that served as a fence between the two properties.
At approximately 9 A.M. on November 1, 1960 Jacobi and two assistants were removing the granite posts by "breaking
them down with a hand crane" and "a sledge hammer." When defendant arrived at his place of business, he saw Jacobi destroying the fence and demanded that the destruction be halted. Jacobi refused, claiming that the granite posts were on his property. Defendant continued to protest that he owned the property upon which the posts were resting. He asked a passing patrolman, Arthur Issler of the Hillside police force, to intervene. Issler testified that he "told him [defendant] that he wouldn't stop him [Jacobi], because the fence posts to me looked like they were well in his [Jacobi's] property, and that he [defendant] consult his lawyer." Defendant rejected this advice to settle his differences peacefully and continued to argue with Jacobi, saying that "he was going to stop Mr. Jacobi himself."
Patrolman Issler testified that in the course of this argument defendant walked onto Jacobi's property, "grabbed his [Jacobi's] clothing and reached down to a bar, and lifted it from the ground." Karl Kohl, one of the workmen assisting Jacobi, testified that defendant "put his hand around the pipe, and the pipe wouldn't move. He let it go. He came up and pushed Mr. Jacobi." Jacobi testified that defendant "struck me on the upper part of the arm" and "with his right hand he [defendant] grabbed me, and then with his left hand he started to pick up an iron post, an iron railing." Jacobi feared that defendant would strike him with the pipe. Consequently, Jacobi "started backing up" and eventually "got away from him." All three witnesses on behalf of the State testified that defendant called Jacobi "a son of a bitch."
Defendant testified that he did not strike Jacobi: "and that's on the law of God, my mother's grave, I did not touch him." In addition, defendant denied describing Jacobi in the vile and indecent language attributed to him by the other three witnesses, although he testified that "I said 'leave them damn posts alone,' and I keep raging at him."
Defendant's statements to the contrary notwithstanding, the County Court judge was clearly within the discretion permitted a trier of fact in accepting, as he did, the version
of the facts presented by the State's three witnesses -- including the testimony of the impartial witness, patrolman Issler. The testimony raised a question of disputed facts for resolution by the trial judge. R.R. 1:5-4(b), 2:5. Cf. Greenfield v. Dusseault , 60 N.J. Super. 436, 444 (App. Div.), affirmed 33 N.J. 78 (1960).
Indeed, defendant does not seriously challenge the credibility of the State's witnesses on this appeal. He instead seeks to minimize the effect of his use of force by commenting that "the testimony reveals nothing more than a very moderate, almost accidental application of force." Defendant admits that "a battery is defined as the slightest corporal touching," as indeed he must. State v. Maier , 13 N.J. 235, 241-42 (1953); cf. Clayton v. New Dreamland Roller Skating Rink, Inc. , 14 N.J. Super. 390, 398 (App. Div. 1951), certif. denied 13 N.J. 527 (1953). In addition, the three State's witnesses testified that defendant threatened to strike Jacobi with an iron pipe. The trial judge could find that Jacobi was placed in fear of bodily injury. However, defendant argues that this use of force was privileged because it was employed in the protection of his property.
Preliminarily, in determining the merits of this defense, we note that defendant claims the monuments were personalty and within his possession. We cannot agree with this characterization. "At any particular instant of time every piece of property in the world is either real or personal." 1 Reeves, Real Property , § 9, p. 10 (1909). Certain types of property, other than fixtures, are sometimes realty and sometimes personalty, depending upon the circumstances in which they are found. Thus, fences are "ordinarily a part of the real property to which they are attached." Reeves, supra , § 45, p. 53. See Leo Co. v. Jersey City Bill Printing Co. , 78 N.J.L. 150, 151 (Sup. Ct. 1909). "Rails made up into a fence on the land become a part of the realty." 73 C.J.S. Property § 11, p. 180 (1951). As the court commented in Ruckman v. Outwater , 28 N.J.L. 581, 583 (E. & A. 1860), posts or rails
"are personal property as long as they remained in piles or otherwise unappropriated; but as soon as they are converted into fence they become a part of the freehold affixed to it, so as to lose the character of personalty."
Applying these principles to the present case, we find that the granite posts and rails forming a fence were attached to the soil with every indication that their annexation was of a permanent character. The posts were, consequently, part of the disputed realty.
During the trial before the County Court, defendant repeatedly attempted to demonstrate his ownership of the disputed land and the fence. Although the trial judge took some evidence concerning the boundary in order to determine the nature of the dispute and to ascertain the proper penalty, he expressly declined to decide the question of ...