Goldmann, Sullivan and Labrecque. The opinion of the court was delivered by Goldmann, S.j.a.d.
Defendant was charged in the Jersey City Municipal Court on the complaints of two police officers, with assault and battery (N.J.S. 2A:170-26) and with fighting (N.J.S. 2A:170-27). He was found guilty after a hearing and convicted. He thereupon took an appeal to the County Court, which conducted a trial de novo. At the close of the State's case the trial judge stated that he would entertain a motion to dismiss the assault and battery charge. Such a motion was made and the charge dismissed. After the defense had presented its witnesses, the trial judge concluded that defendant's guilt had been established beyond a reasonable doubt and imposed a sentence of 30 days in the county penitentiary. He suspended sentence and left defendant off with a warning, stating that he was not being placed on probation. Defendant appeals.
The charges originally brought against defendant stem from a street fight late on the evening of February 27, 1964, involving a large group of boys. Some 15 police were called out to quell the melee. Defendant and one Dean were taken
into custody; the other boys escaped. A radio car policeman testified Dean was in the midst of the fight; he and others were throwing punches, swinging their arms, grabbing at each other, and rolling on the ground. The other radio car officer saw Dean "swinging his arms and it looked like he was in a fight." This witness testified that defendant was also swinging his arms, but he could not identify the youths at whom he aimed his blows. None of the three officers who testified were able to identify anyone except Dean and defendant. Some six boys who had been with defendant that evening said he did not fight.
R.R. 1:5-4(b) provides that on a review of any criminal cause involving issues of fact not determined by a jury verdict, new or amended findings of fact may be made, "but due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses." However, we exercise that power only where we are well satisfied that the trial court's finding was a mistaken one and offends the interests of justice. State v. Moretti, 50 N.J. Super. 223, 237 (App. Div. 1958); State v. Catalano, 30 N.J. Super. 343, 348 (App. Div. 1954). Due regard must be given to the opportunity of the trial court -- here the County Court -- to judge of the credibility of the witnesses.
Meagre though the record is, we are unwilling to overrule the trial judge on this phase of the case, recognizing that he saw and heard the witnesses. In his oral conclusions he made specific reference to the fact that after weighing the testimony and judging the credibility of the witnesses, he was satisfied that the State had established guilt beyond a reasonable doubt, not only in defendant's case, but in that of Dean, who also received a 30-day suspended sentence.
Defendant's second and final ground of appeal involves an interpretation of N.J.S. 2A:170-27, which reads:
"Any 2 or more persons who fight together, or commit or attempt to commit assaults and batteries upon each other, either in public or in a private place, or are present, aiding, assisting or abetting same, are jointly disorderly persons."
Defendant contends that under the statute he and the person with whom he was fighting should have been jointly charged and tried for the offense, and in such case there would have to be a joint verdict of guilt.
The specific offense of fighting appeared in our statute books for the first time in 1875. At common law fighting was considered a species of affray. Blackstone, in 4 Commentaries, c. 9 (1769), dealing with offenses against the public peace said:
"Affrays (from affraier, to terrify) are the fighting of two or more persons in some public place, to the terror of his majesty's subjects: for, if the fighting be in private, it is no affray but an assault. * * * The punishment of common affrays is by fine and imprisonment; the measure of which must be regulated by the circumstances of the case; for, where there is any material aggravation, the ...