For reversal and remandment -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For affirmance -- None. The opinion of the court was delivered by Francis, J.
Two complaints were filed against defendant John T. States in the Edison Municipal Court. One charged him with assault and battery in violation of the Disorderly Persons Act, N.J.S. 2A:170-26, in that "he placed his left hand on the chest of said complainant [Patrolman Garrett Voorhees, Edison Police Department] and shoved said complainant back * * *." The other charged that defendant "did unlawfully possess a dangerous weapon, to wit: a steel link chain with a steel pipe handle, contrary to" the Disorderly Persons Act, N.J.S. 2A:170-3.
At the hearing in the municipal court States moved to dismiss the assault and battery complaint because the proper charge against him should have been assault and battery upon a police officer, a high misdemeanor under N.J.S. 2A:90-4. In the alternative he moved that the complaint be ordered amended to allege a violation of N.J.S. 2A:90-4. Since that offense is a crime over which the magistrate had no jurisdiction, and prosecution for which entitled the accused to indictment by the grand jury and trial by petit jury, States contended the complaint should be dismissed. He contended further that if the complaint were amended to allege the proper offense, the magistrate's authority (in absence of a waiver under R.R. 8:3-3(b), (c)) was limited to the conduct of a preliminary examination, and, on a finding of probable cause, to an order holding him for action by the grand jury. In making the motion defendant recognized that the complaint under N.J.S. 2A:170-3 for possession of a dangerous weapon as a disorderly persons offense was within the jurisdiction of the municipal court. (In passing it may be
noted that the State did not claim defendant used the so-called dangerous chain in committing the assault and battery. In fact the complaint simply charged unlawful possession of the chain, without even adding the crucial words of N.J.S. 2A:170-3, the disorderly persons offense, namely possession "with intent to assault.") He argued, however, that by virtue of an administrative directive dealing with matters of procedure, the magistrate was required to refrain from handling either case pending action by the prosecutor. The purport of the directive is that if two or more complaints against a defendant arising out of a single transaction are filed in the municipal court, and the court lacks jurisdiction of one of them because a crime is charged, to avoid possible double jeopardy problems both complaints should be referred to the county prosecutor for consideration. Municipal Court Bulletin Letter No. 88 (May 1963); Municipal Court Bulletin Letter No. 96 (Feb. 1964). In view of our disposition of the case, it is not necessary to consider the effect of the directive. The magistrate denied the motion and proceeded with the trial. At its conclusion he found defendant guilty on both charges and fined him $250 for each offense.
An appeal was taken to the county court. No stenographic record having been made in the municipal court, ordinarily the appeal would have resulted in a full trial de novo. Prior to trial, however, defendant moved to dismiss the complaints and to set aside the judgments of conviction on the jurisdictional grounds urged in the municipal court.
The county court granted the motion addressed to the complaint for the assault and battery offense under N.J.S. 2A:170-26, reversed the conviction and dismissed the complaint. State v. States, 84 N.J. Super. 404 (Cty. Ct. 1964). He took the view that the complaint should have charged the high misdemeanor covered by N.J.S. 2A:90-4, and since the magistrate had no jurisdiction to hear such an offense, the trial and judgment of guilt were a nullity. The disorderly persons complaint arising out of alleged possession of a dangerous weapon was dismissed also and the conviction vacated
on renewal of the motion presented below, because of violation of the administrative directive to which reference has been made. We cannot agree with either ruling.
Prior to January 1, 1952 ordinary assault and battery was a crime, designated in our Crimes Act as a misdemeanor, and punishable by imprisonment for a term not exceeding three years or a fine not exceeding $1,000, or both. R.S. 2:103-1, 6. At that time the statute said "assaults, batteries, * * *, and all other offenses of an indictable nature at common law, and not expressly provided for by statute, shall be misdemeanors."
In 1951 the Crimes Act was revised, to be effective January 1, 1952, and assault and battery was downgraded to a disorderly persons offense. L. 1951, c. 344; N.J.S. 2A:170-26. The original language of R.S. 2:103-1 relating to assaults and batteries "not otherwise expressly provided for by statute" was also carried into the revision. N.J.S. 2A:85-1. Express provisions were made for certain more serious types of assaults and batteries, and many of them were designated as high misdemeanors, for example, atrocious assault and battery, N.J.S. 2A:90-1, assault with intent to kill, to commit burglary, kidnapping, rape, robbery or sodomy or carnal abuse of a female under 16 years of age, N.J.S. 2A:90-2, assault with a dangerous weapon, N.J.S. 2A:90-3, etc. The result of the revision was elimination of the formerly indictable crime of assault and battery, and substitution therefor of the disorderly persons offense triable before a municipal magistrate sitting without a jury. State v. Fary, 16 N.J. 317, 322 (1954); State v. Maier, 13 N.J. 235 (1953).
In 1962 the Legislature "expressly provided" for another grade of assault and battery, i.e., assault and battery upon a law enforcement officer. L. 1962, c. 39; N.J.S. 2A:90-4. This statute made such an assault a high misdemeanor under certain circumstances. It provided:
"Any person who commits an assault and battery upon any * * * municipal police officer * * *, acting in the ...