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State v. Owens

Decided: June 4, 1969.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
RICHARD OWENS, JR., DEFENDANT-APPELLANT



For modification -- Chief Justice Weintraub and Justices Francis, Proctor, Hall, Schettino and Haneman. Opposed -- None. The opinion of the court was delivered by Weintraub, C.J.

Weintraub

[54 NJ Page 155] Defendant was convicted in the Municipal Court of Newark on three charges of assault and battery in violation of the disorderly persons statute and of a

further charge of resisting arrest in violation of a local ordinance. He appealed to the County Court where upon a trial de novo, R.R. 3:10-10(a), he was again convicted on all charges. Both courts imposed the same sentences: six months imprisonment on three of the convictions and three months on the fourth, execution suspended, with defendant placed on probation for nine months on each conviction. The sentences were consecutive, so that the total of the suspended jail sentences was 21 months and the total probation period was 36 months. Defendant was ordered to pay $1.00 per week for an 18-month period. The Appellate Division affirmed, 102 N.J. Super. 187 (1968), and we granted defendant's petition for certification, limited to the issue of the right to trial by jury.*fn1 52 N.J. 533 (1968).

The four charges emerged from a single setting. The State's version, accepted by the courts below, may be described very briefly. Defendant lived without matrimony with a woman by whom he had a child. Two police officers, responding to a call, found the woman somewhat hysterical, pleading for help to enter her apartment to obtain her child and her clothing. The officers sought to talk with defendant, but a fracas ensued with defendant committing a simple assault and battery upon both officers and upon the infant, who was but three weeks old, and resisting arrest.

The charges were tried together. As to the charge of assault and battery, which is a disorderly persons offense, N.J.S. 2 A:170-26, the maximum authorized punishment at the time defendant was tried was one year in jail and a $1,000 fine. N.J.S. 2 A:169-4. Since then the authorized maximum has been reduced to six months and a fine of $500. L. 1968, c. 113. The authorized maximum for resisting arrest in violation of the ordinance was three months in jail and a fine of $500.

Under our practice, trial by jury is not accorded one charged with a disorderly persons offense or with a violation

of a municipal ordinance. A disorderly persons offense (and so too an ordinance violation) is deemed to be a "petty offense" rather than a "crime" within the provisions of our State Constitution relating to indictment (Art. I, para. 8) and trial by jury (Art I, para. 9). The maximum punishment authorized for a petty offense is below that authorized for crime, and a conviction for a petty offense carries none of the consequential civil disabilities which follow upon a conviction for crime. We repeat from In re Buehrer, 50 N.J. 501, 517-519 (1967):

"In our State 'crimes' are called 'misdemeanors' or 'high misdemeanors.' Unless otherwise provided, a misdemeanor is punishable by a maximum fine of $1,000 or by imprisonment for not more than three years, or both, N.J.S.A. 2 A:85-7, and a high misdemeanor is punishable by a maximum fine of $2,000, or by imprisonment for not more than seven years, or both, N.J.S.A. 2 A:85-6. These offenses are within our constitutional guarantees of indictment and trial by jury.

Below the grade of crime are lesser offenses, none of which carries the stigma or the disabilities which follow upon a conviction of crime, State v. Maier, 13 N.J. 235, pp. 250-251 (1953); State v. Block, 119 N.J.L. 277, 282 (Sup. Ct. 1938), affirmed, 121 N.J.L. 73 (E. & A. 1938); Huff v. C. W. Goddard Coal, etc., Co., 106 N.J.L. 19, 21 (Sup. Ct. 1930), or authorized maximum penalties as severe as those which may be imposed upon a conviction for crime. Among the lesser offenses are 'disorderly person' offenses which cover a wide gamut of misbehavior, see N.J.S.A. 2 A:170-1 et seq., and which, unless otherwise provided, carry a maximum of one year in jail or a $1,000 fine or both, N.J.S.A. 2 A:169-4. In addition there are other statutes providing for lesser offenses with still lower limits on punishment, such as the Motor Vehicle Act, and of course there are municipal ordinances as well.

All of the offenses below the grade of crime come within the generic category of 'petty offenses,' not to suggest thereby that the authorized punishments are trivial but rather to say that because the consequences of a conviction are limited, these offenses are beyond the concept of 'crime' within the intent of our State Constitution's provisions for indictment and trial by jury. That offenses below the grade of crime may thus be tried without indictment and petit jury has long been the law of our State. See the comprehensive discussion in State v. Maier, supra, 13 N.J., at p. 260, et seq. The United States Supreme Court takes the same view of the Federal Constitution, finding petty federal offenses to be beyond its guaranty of jury trial. Cheff v. Schnackenberg, supra, 384 U.S. 373, 86 S. Ct. 1523, 16 L. Ed. 2 d 629; District of Columbia v. Clawans, 300 U.S. 617, 57 S. Ct. 660, 81 L. Ed. 843 (1937). So generally do other

jurisdictions. Annotation, 75 L. Ed. 177 (1931); Frankfurter and Corcoran, 'Petty Federal Offenses and the Constitutional Guaranty of Trial by Jury,' 39 Harv. L. Rev. 917 (1926); 31 Am. Jur., Jury, ยงยง 34, 36, pp. 40-41 (1958). However incongruous the results may be, the constitutional provisions have been read only to continue the right to jury trial in situations in which the right was established when the constitutions were adopted, and ...


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