For affirmance -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall and Schettino. For reversal -- None. The opinion of the court was delivered by Schettino, J.
This is an appeal from a conviction of atrocious assault and battery.
On June 17, 1966, at approximately 12:30 P.M., an Elizabeth policeman found the deceased, John Schlagenhaft, lying beaten and helpless alongside a brook in a city park. The victim, covered with "crusty blood" and clothed only in a ripped T-shirt and a pair of socks, was removed to a hospital where he died at 8:05 A.M. on June 20.
A Union County Grand Jury subsequently indicted Kenneth Zelichowski and three other men for the murder of John Schlagenhaft.
At the joint trial of Zelichowski and one co-defendant, it developed that the four men, while walking in the park on the evening of June 16, had come across Schlagenhaft sleeping in the grass. Without any apparent reason or provocation, the four had commenced beating and stomping the victim. The attack lasted approximately two minutes and ceased
only when the sight of a passing police car frightened the assailants away.
The victim was not found until approximately 15 hours later. In the interim, the victim had somehow moved or been moved approximately 100 feet from the spot of the initial beating. And though the body was found virtually nude, there was no evidence that the four attackers had stripped their victim.
Zelichowski and the co-defendant tried with him were convicted by a jury of atrocious assault and battery.*fn1 Zelichowski appeals under former R.R. 1:2-1(c) from his conviction and a sentence of 6-7 years and a $1,000 fine.
Defendant's primary contention is that the trial court erred in instructing the jury that it could return a verdict of guilty of atrocious assault and battery. Although the indictment was the customary short-form murder indictment, the trial court listed four possible verdicts: not guilty; first degree murder with a recommendation of life imprisonment; second degree murder; and atrocious assault and battery. The court properly felt that a homicide conviction could not be sustained without proof beyond a reasonable doubt of a proximate relationship between the beating administered by the defendants and the death of the victim.*fn2 The court decided
to charge on atrocious assault and battery because it also felt that, upon the evidence submitted, the jury might entertain a ...