Goldmann, Kilkenny and Collester. The opinion of the court was delivered by Kilkenny, J.A.D.
Defendant was found guilty in the municipal court of Newark of assault and battery, in violation of N.J.S. 2A:170-26. He was there given a 30 days' suspended jail sentence and fined $250. On his appeal to the Essex County Court there was a plenary trial de novo and he was again found guilty, the jail sentence was again suspended and the fine of $250 paid in the municipal court was ordered to be remitted. This is defendant's appeal from the judgment of conviction of the county court.
Defendant contends: (1) there was prejudicial error in the trial court's admission of an alleged oral statement made by him to a police officer in which he stated that he had
slapped the complaining witness; and (2) the evidence does not support a finding of guilt beyond a reasonable doubt. In order to put these issues in proper focus, it becomes necessary for us to summarize the evidence at the trial.
On April 14, 1963, about 10:30 P.M., James Mleziva was driving an automobile owned by a friend, Richard Smith, in a westerly direction along Raymond Boulevard in Newark. Riding with him in the front seat of this car were two other friends, David Hopler in the middle, and Robert Zatorski at the far right. Mleziva stopped his car because of a red traffic light at Pine Street. Defendant, who had been driving a Public Service bus immediately behind the car driven by Mleziva and in the same direction, also stopped for the light, left the bus with its passengers and appeared on the street on the driver's side of Mleziva's car. The incident which immediately followed was in dispute, Mleziva and his two passengers giving one version and defendant giving a contradictory version.
According to Mleziva, defendant pulled on the handle of his car and when he rolled down the window defendant yelled at him, "What, are you crazy kid, where did you get your license." Thereupon, in Mleziva's words, "all of a sudden one arm came in the car and grabbed me by the collar of the coat and the guy was hitting me across the face with the other hand." Following this, according to Mleziva, defendant then walked back to his bus and drove off. Mleziva noted the number of the bus and the license plate number. He then went to the Public Service building, ascertained the bus driver's identity and drove to the Third Precinct police headquarters, where he reported the incident and registered an oral complaint there with a police officer, named Leonardis.
The passengers, Hopler and Zatorski, testified to the same version as had been related by Mleziva.
Prior to the alleged assault and battery, there had been two near collisions between the Mleziva car and the bus. Mleziva claimed that he had been driving his car in the left lane while the bus was behind him in the right lane and that the bus
driver had attempted to pass him in order to get into the left lane ahead of him.
Defendant testified that Mleziva had been driving his car in a reckless manner, cutting in front of the bus and causing him to apply his brakes suddenly to avoid a collision. He was apprehensive for the safety of his passengers, and when both the car and the bus were halted by the red traffic light, he got out of the bus and went to the side of Mleziva's car. He denied that he tried to open the car door and that he had made the remark testified to by Mleziva and his passengers, but on the contrary stated that he called the occupants "stupid fools." He also denied touching or striking Mleziva in any way.
Defendant and Mleziva met on two occasions subsequent to the incident on the street referred to above. The first meeting was in the Public Service building and the second was at police headquarters. The purpose of both meetings was to come to some mutually agreeable settlement and to dissuade Mleziva from filing a formal complaint of assault and battery, which up to that time had not yet been filed. Defendant was apparently anxious to avoid any such proceeding ...