Conford, Kilkenny and Lewis. The opinion of the court was delivered by Conford, S.j.a.d.
Certain charges against the defendants arising out of an arrest of defendant Kurt Koonce ("Kurt," hereinafter) by Newark police officers for selling liquor to a minor were tried before the Municipal Court of the City of Newark. The charge against Kurt of unlawful sale to a minor was, according to the docket record, "dismissed for lack of evidence." A complaint against Kurt for assault and battery on Police Officer Costanzo resulted in a conviction and a 90-day jail term in the county penitentiary. Both Kurt and Florence Koonce ("Florence," hereinafter) were convicted on a complaint of assault and battery on Police Captain Zizza; Kurt was sentenced to time spent in jail and Florence to a $25 fine.
On appeal to the Essex County Court, and after a trial de novo, Kurt was found guilty of the assault on Costanzo but acquitted of the charge as to Zizza. He was sentenced to a 90-day jail term. Florence was found guilty of the assault on Zizza and fined $25. They appeal their convictions to this court; additionally, Kurt complains his sentence was excessive.
There were other charges and dispositions, including one against Washington Koonce for interfering with an officer in the performance of his duty, but these are not involved in the present appeals of Kurt and Florence.
The events which here concern us occurred in the early morning of May 30, 1964 at a tavern on Springfield Avenue in Newark known as the Glitter Club. Washington Koonce was president of the corporate alcoholic beverage control licensee. He was father of Kurt and husband of Florence. At approximately 1:30 A.M. uniformed patrolmen of the Newark Police Department arrived in response to a call from the club that a patron was brandishing a knife. By the time, shortly thereafter, that Captain Zizza and other officers arrived, the police were in process of removing the offender. However, they noticed that some of the patrons present seemed to be minors, whereas R.S. 33:1-77 makes the sale of any
alcoholic beverage to a minor a misdemeanor (subject to certain provisos). Testimony offered at the trial de novo fairly permitted the following findings of fact as to the events thereafter. Zizza had observed an apparent patron, one Carol Gray, standing at the bar with a glass of amber-colored fluid in her hand. He questioned her about her age and she told him it was 24 and that she was born in 1942. She then corrected the birth year to 1940. At that point he turned the interrogation over to Detective Thomas to whom she admitted she was 17. Zizza asked her who had served her, and her response was, "I can't tell you nothing." Zizza noticed a strong smell of alcohol on her breath. Behind the bar were three men and a woman. Zizza asked them who served the girl, whereupon Kurt handed Zizza a slip of paper containing Miss Gray's signature to a statement that she was over 21, which he said she had given him three weeks previously. But he said no one had served her liquor.
In addition to the Koonces there was another bartender on duty at the time. There was defense testimony that Kurt was not then on bartending duty, having completed that stint at 6 P.M. the previous evening, but that he was washing glasses and cleaning tables just before the incident in question. Zizza testified that when he entered the premises Kurt was "the bartender working" the end of the bar where Miss Gray was. Another officer, however, testified Kurt had been "outside the bar," "fixing something."
Zizza told Kurt that he was under arrest for serving a minor. Kurt at first came from behind the bar, "apparently resigned to the fact that he was coming with us" (Zizza's testimony). However, he then returned to a position behind the bar, ostensibly to get his cigarettes, but ultimately refused to go with the officers. Zizza then ordered Costanzo to "go and take Kurt Koonce." Zizza's testimony was to the effect that as Costanzo reached out to take Koonce "he was met with a flailing of arms, punching." Zizza jumped over the bar to assist Costanzo who was being punched by Kurt. But Zizza was punched from the rear by Florence. He was struck repeatedly
"all around my body." The defendants were then subdued and removed. Zizza's testimony was corroborated by that of Costanzo, who added the detail that he was hit by Kurt when he put a handcuff on his right wrist. There was also corroboration of Zizza's account of the events by the testimony of Officers Thomas and McParland.
For the defense, Carol Gray testified that she had gone into the bar to make a phone call. Although she had been drinking before she went to the bar, she did not order anything or have anything to drink while she was there. She was stopped by the policemen as she was on her way out, after having made the call. She lied about her age because she was scared. Washington Koonce testified that at the time in question he was tending bar with another man other than Kurt. He denied that anyone had served Miss Gray and he had orally protested to the police the arrest of his son. At the time, his wife had been working at the cash register. Washington stated that the officers shoved his wife aside and seized his son. At no time did either of them physically resist or strike the officers. The officers also forcibly seized his wife. This version was substantiated by the testimony of Florence and Kurt. Kurt added that prior to the incident he had been clearing tables in the bar. He denied serving Miss Gray. Jimmy Weems, a patron of the bar, corroborated the stories of the three defendants.
The trial judge in the Essex County Court found the testimony of the police witnesses basically credible and that of the defense witnesses not, in relation to the respective factual versions as to the assaults charged against the defendants, with the dispositions stated hereinabove.
The first appellate contention -- that the factual basis for the State's claim of assault was not established at the trial beyond a reasonable doubt -- may be dismissed summarily. The case was tried by a judge without a jury. He could have properly
believed the police witnesses and disbelieved the defendants and their supporting witnesses as to the physical, objective events relevant to the complaint of assault and battery of Kurt on the person of Officer Costanzo and that against Florence for the same offense against Captain Zizza. We will not disturb the findings in these respects made by the trial court. See State v. Johnson, 42 N.J. 146 (1964). They were supported by "sufficient credible evidence present in the record." Id., at p. 162.
Defendants' second appellate point is that "defendants' alleged conduct, in repelling an unlawful arrest, was legally justified." Here defendants invoke the common-law rule that a citizen may use such force as may be reasonably necessary to repel or prevent an illegal arrest. 1 Wharton, Criminal Law (12 th ed. 1932), §§ 851-854, pp. 1148-1153; 6 C.J.S., Assault and Battery, § 92(d), p. 949; see State v. Ronnie, 41 N.J. Super. 339, 343 (Law Div. 1956). They contend that since the statutory offense of selling liquor to a minor, though denominated a "misdemeanor," is punishable by imprisonment for not more than 90 days, R.S. 33:1-51; Jucker v. Recorder's Court of Irvington, 133 N.J.L. 12, 13 (Sup. Ct. 1945), it is in the category of common-law misdemeanor rather than felony, State v. Doyle, 42 N.J. 334, 349 (1964); State v. Hutchins, 43 N.J. 85, 100 (1964), for purposes of applying the general common-law rule that a peace officer may arrest without a warrant (there was no warrant here) for a misdemeanor only if the offense was committed in his presence, see State v. Smith, 37 N.J. 481, 494 (1962), certiorari denied 374 U.S. 835, 83 S. Ct. 1879, 10 L. Ed. 2 d 1055 (1963).
Defendants face a preliminary hurdle in that this contention was not raised before the trial court, and ordinarily, of course, a ground of appeal will not be heard on appeal which was not made to the trial court. Defendants point out, however, that they did at the conclusion of the State's case
make a motion to dismiss the interference charges on the ground of the illegality of the arrest. As to the presently appealing defendants, the motion was denied. But the motion, unaccountably, did not encompass the assault charges, and we would ordinarily, for that reason, reject consideration of the point. However, if the defendants' position has merit it goes to the essence of their guilt or innocence and would warrant consideration on principles of substantial justice. Moreover, the point involves, in its resolution, a subject of urgent public concern in the law-enforcement field. For these reasons we will entertain the argument on its merits.
We turn, then, to the first premise of the thesis advanced: Kurt Koonce did not violate R.S. 33:1-77 in the presence of the arresting police; therefore, his arrest for that offense was unlawful. We have little difficulty in agreeing with defendants to this extent, i.e., that assuming a violation of the statutory proscription of sale to a minor by some person connected with the operation of the Glitter Club on the occasion in question in the presence of the officers, the officers had insufficient basis for a determination that Kurt was the offender to justify his arrest.
Certain interesting and fairly debatable questions are subordinately implicated in the assumption postulated in the foregoing paragraph. We shall not here resolve them definitively.
(1) Is the offense of "sale" of liquor to a minor over and concluded with the payment by the customer and placement of the beverage on the bar, or does it continue while the liquor is being consumed on the premises? Compare Utah Liquor Control Commission v. Mandeles, 99 Utah 507, 108 P. 2 d 512 (Sup. Ct. 1940); People v. Foster, 10 N.Y. 2 d 99, 176 N.E. 2 d 397, 217 N.Y.S. 2 d 596 (Ct. App. 1961) (decided by a 4-3 vote), on the one hand, with Davids v. State, 208 Md. 377, 118 A. 2 d 636 (Ct. App. 1955), on the other; and see Annotation, 76 A.L.R. 2 d 1432, 1441 (1961). ...