Kilkenny, Labrecque and Lane. The opinion of the court was delivered by Kilkenny, P.J.A.D.
Defendant Ulious Green was found guilty by a jury of assault and battery on a police officer (N.J.S.A. 2A:90-4), carrying a dangerous knife (N.J.S.A. 2A:151-41(c)), and threatening life (N.J.S.A. 2A:113-8). Defendant Jesse Green, who was tried at the same time, was found guilty of the first two charges and not guilty of the last. On February 25, 1970 Ulious was sentenced to New Jersey State Prison for terms of three to five years on each charge, all terms to run concurrently. Jesse was sentenced to Yardville Reformatory for two concurrent indeterminate terms.
In their appeal from the judgments of conviction, defendants contend:
(1) The trial judge's instruction to the jury with regard to the charge of carrying a dangerous knife was erroneous (not raised below).
(2) The trial judge erred in not allowing defendants to testify as to whether or not the knives were a necessary tool in their employment.
(3) Defendant Jesse Green was unlawfully convicted of assault and battery on a police officer, under indictment 54-69. The verdict on that charge was improperly rendered and, therefore, all other verdicts rendered at the trial were thereby tainted.
(4) The judge's charge on threatening to kill was erroneous (not raised below).
(5) Defendant Ulious Green's sentence was illegal in that the judge considered prior arrests not followed by convictions in determining the sentence.
There was testimony and other evidence at the trial from which the jury could make the following findings:
On June 6, 1969 James Butler, a plain clothes security detective for Bamberger's, observed defendants enter the department store and purchase two shopping bags Butler and another detective, Smith, watched from the balcony as defendants put merchandise into their bags. When the two men left the store without paying, the detective pursued them.
Outside the store Butler flagged down an "unmarked" Newark police car. There were three officers in the car. Officer Hagel was driving, Engler was in the front seat and Reid was in the back. The two store detectives got in the car and they quickly overtook the two defendants who were standing on the corner waiting for a light to change.
Officer Engler -- in plain clothes -- got out of the car with his badge drawn. He approached defendants and said, "Stop. I'm a police officer, I want to talk to you." Defendants immediately fled in opposite directions.
Engler, along with Detective Smith, pursued Jesse. As Engler reached him, that defendant turned and struck the officer in the mouth. Engler than took out his "slapper" (blackjack) and struck Jesse once or twice. He wrestled him to the ground but the handcuffs jammed and the officer needed assistance to get Jesse back to the car.
Officer Hagel apprehended defendant Ulious Green and had him handcuffed and in the car. Hagel was driving with
Engler in the middle of the front seat and Butler next to him. Reid was in the rear with the two prisoners. Jesse was bleeding. When Ulious saw this, he became enraged at Officer Engler. He spat at the officer. When Engler turned around in his seat, Ulious leaned back, raised his feet and kicked him in the chest. The officers grabbed Ulious's feet and attempted to subdue him. According to Engler, Ulious shouted that "he was going to kill me. He said that no matter how long he spent in jail when he gets out he's going to kill me * * *." Engler also testified that Jesse said he was going to kill him.
At police headquarters defendants were searched and pocket knives were found in their possession. Defendant continued to threaten Engler while they were at the precinct. The knives were identified and received in evidence.
Both defendants testified. Jesse stated that he never struck Engler, but that when the officer caught him the officer immediately began to strike him with the "slapper." He denied ever threatening Engler. Ulious also denied making the threats. He testified that when he saw Jesse he told him to press charges against Engler. Engler told him to "shut up" or he would "give him some." Ulious challenged Engler saying that if he hit him, he would spit on the officer. Engler struck him with the "slapper" and Ulious spat. Engler then hit him a number of times. Ulious, handcuffed, put up his feet to ward off the blows.
After the usual summations, charge and submission to the jury, the jury returned its verdict. Defendants requested a poll. During the poll of the verdict of guilty as to Jesse Green for assault and battery on a police officer -- the second poll -- juror No. 8 made no response. The following colloquy took place:
THE COURT: What is your response?
THE COURT: No what? That's not your verdict?
JUROR NO. 8: No, it was not. Are we talking ...