Goldmann, Kilkenny and Carton.
Defendant Ulysses Montague and co-defendant Clarence Lollie were indicted for assault and battery upon Newark police officer James Nance, in violation of N.J.S. 2 A:90-4. Montague was also indicted for threatening the life of Officer Nance by pointing a revolver at him contrary to N.J.S. 2 A:113-8. The jury found defendant guilty of both offenses and acquitted Lollie. Defendant received consecutive State Prison sentences of 1-2 years on the threat to life charge and 2-3 years on the assault and battery charge. He appeals.
Officer Nance testified that while on duty on May 23, 1966, at about 2:53 P.M., he observed a Ford Mustang traveling south on Johnson Avenue in Newark without a valid motor vehicle inspection sticker. At that time he was on a police motorcycle, in uniform and wearing a police helmet. He stopped the vehicle and Lollie, the driver, got out and proceeded to discuss the matter with him. Defendant and his niece and nephew, Lilliteen and Cornell Rochelle, remained in the car.
While Lollie and Nance were talking, 16-year-old Cornell began blowing the horn of the vehicle to attract the attention of a pedestrian named Charles Jones. Nance said he went over to the car and told the boy to stop blowing the horn as it was a violation of the law. Returning to his discussion with Lollie, Nance observed that Lilliteen began sounding the horn loudly. When he told her to stop, Lilliteen said, according to Nance, "You don't tell me nothing. I'm not driving this car." Nance replied that it was against the law. Lilliteen then began to curse and, despite Lollie's attempt to calm her, got out of the Mustang and approached Nance. He placed her under arrest and tried to call a patrol car on his radio.
At this point Lilliteen started to walk away and as the officer attempted to restrain her, she began to resist physically. Lollie grabbed Nance's arm when the officer tried to handcuff Lilliteen and Nance knocked him to the ground. Defendant, who had been in the car up to this time, got out
and tackled Officer Nance. Nance testified that while he and defendant were struggling, Lollie was holding his arms, Lilliteen was kicking him and defendant was shouting to Lollie to "hold his arm while I get his gun." Defendant succeeded in pulling the pistol from its holster, pointed it at Nance and said: "I will shoot you. Keep coming. You don't think I will shoot you?" Nance lunged for the gun and defendant hit him on the side of the head with it.
Nance managed to call for help on his motorcycle radio. When the other officers arrived, Nance instructed them to pursue Lollie who had fled and he went after defendant. Asked to surrender the revolver, defendant refused and was subsequently subdued by several officers.
James Barrett and Alvin Picker, members of the faculty at nearby South Side High School, testified for the State. They were witnesses to the entire altercation and substantially corroborated Nance's testimony. Officer Kneipher, one of the policemen who answered the call for help, confirmed Nance's account as to taking the gun from defendant and subduing him.
Defendant's version of the incident is considerably at odds with that of Officer Nance. He said he did not hear the discussion between Nance and Lollie but he did hear Nance's warning to Lilliteen about blowing the horn. According to defendant, however, Nance had said to her, "Stop blowing the damn horn or I'll give Clarence another ticket." Lilliteen then got out of the car, went around to the rear where Nance and Lollie were standing and called Nance "a Nigger cop in uniform." Defendant said he heard Nance reply, "Don't call me no Nigger cop or I'll smack you" and Lilliteen retort, "I'll smack you back," but he did not hear Nance tell Littiteen she was under arrest. The next thing he knew, the officer was hitting Lilliteen and had her by the throat. When Lollie tried to intervene, he was knocked away. Defendant stated that he stepped out of the car and attempted to pull the officer away from his niece but when Nance reached for his gun, he jumped on him and they struggled on the ground.
Defendant got the gun and refused to return it for fear Nance would shoot him. He denied hitting the officer with the gun but admitted that he struck him on the head when Nance lunged at him. He also denied threatening Nance with the gun or pointing it at him. After the other officers arrived at the scene, defendant said, he surrendered the gun voluntarily and was thereafter beaten by one of the policemen, handcuffed and taken away.
Four other witnesses testified for the defense: Lollie, Lilliteen, Cornell and Charles Jones, the pedestrian whose attention Cornell and Lilliteen were trying to attract by blowing the horn. Their testimony ...