This is an appeal de novo of two convictions under the Disorderly Persons Act, N.J.S. 2A:170-3 and 2A:170-26.
The allegations in the complaints indicate that on February 21, 1964 defendant assaulted and battered a member of the Edison Township Police Department who was in uniform, and that defendant had in his possession a steel link chain. The arresting officer charged the defendant with simple assault and battery under N.J.S. 2A:170-26, which provides that "Any person who commits an assault or an assault and battery is a disorderly person." He also charged the defendant with violating N.J.S. 2A:170-3, which provides that "Any person who * * * has upon him any offensive or dangerous weapon, with intent to assault any person, * * * is a disorderly person."
At the municipal court hearing defendant objected to being tried under the Disorderly Persons Act. He contended that assaulting a police officer was an indictable offense under N.J.S. 2A:90-4, L. 1962, c. 39, § 1, on which charge he had a right to insist upon an indictment by a grand jury and a trial by a petit jury. N.J. Const. Art. I, pars. 8, 9 and 10. Furthermore, he contended that the possession of a dangerous weapon being a related event, he had a similar constitutional right to indictment and trial by jury.
Defendant argued that the subsequent enactment of N.J.S. 2A:90-4 implicitly removed assaults upon uniformed police officers from the scope of the Disorderly Persons Act. Thus, he suggested to the municipal magistrate that he was without jurisdiction, and moved that the complaints be dismissed or, alternatively, amended to charge high misdemeanors and submitted for grand jury action. The magistrate denied both motions, proceeded to try the case summarily, found defendant guilty of both charges, and imposed sentence. On this appeal defendant has renewed these motions.
The State argues that N.J.S. 2A:90-4 does not contain any express repealer of N.J.S. 2A:170-26; therefore, the courts will not construe a later statute to repeal by implication
an earlier statute, unless the former is plainly repugnant to the latter and demonstrates a legislative intent to be a complete substitute -- citing Swede v. Clifton , 22 N.J. 303 (1956); State v. Drake , 79 N.J. Super. 458 (App. Div. 1963). The fallacy in the State's argument is that it attempts to resolve the problem sub judice by the mere use of a rule of statutory construction without any logical basis in reasoning. N.J.S. 2A:90-4 provides:
"Any person who commits an assault and battery upon any State, county or municipal police officer, or other law enforcement officer, acting in the performance of his duties while in uniform or exhibiting evidence of his authority, is guilty of a high misdemeanor."
The Legislature, by enacting N.J.S. 2A:170-26, manifestly did not intend to make all assaults and batteries mere disorderly conduct; rather it created gradations of the offense. State v. Maier , 13 N.J. 235 (1953). In sustaining the constitutional right of the Legislature to downgrade an offense formerly requiring a jury trial to that of a disorderly persons violation, the late Chief Justice Vanderbilt, in Maier , advanced the thought that busy grand juries, preoccupied with more serious crimes too often would fail to indict for relatively unaggravated assaults. In order to remedy this maladministration of criminal law, the Legislature created gradations of assaults and assaults and batteries unknown to the common law.
The issue is whether an assault and battery upon a policeman in uniform can be downgraded by the police officer and magistrate to the level of a simple assault and battery. I am of the opinion that such cannot be done.
As pointed out in Maier , the Legislature might have interposed between simple assaults and batteries as disorderly conduct and those kinds of high misdemeanors contained in N.J.S. 2A:90-1, 2, and 3, the intermediate offense of assaults and batteries of the general scope as misdemeanors; but the Legislature failed to do so, except in the ...