State v. Cybulski
| Decision Date | 15 June 1954 |
| Docket Number | No. A--317,A--317 |
| Citation | 31 N.J.Super. 164,106 A.2d 25 |
| Parties | STATE v. CYBULSKI. . Appellate Division |
| Court | New Jersey Superior Court — Appellate Division |
W. Thomas McGann, Moorestown, argued the cause for appellant.
Harold T. Parker, County Prosecutor, Mt. Holly, argued the cause for respondent.
Before Judges JAYNE, STANTON and HALL.
The opinion of the court was delivered by
JAYNE, S.J.A.D.
The Legislature, Laws of 1951, First Special Session, enacted a complete revision of Title 2 of the Revised Statutes of 1937, as amended and supplemented, with a provision that the former Title 2 be repealed and that the substitutionary legislation designated Title 2A should become effective January 1, 1952.
Subsequent to the effective date of Title 2A this defendant was indicted by the Grand Jury of the County of Burlington Court for the commission on June 21, 1953 of the offense of simple assault and battery 'contrary to the provisions of R.S. 2A:85--1.' At the trial on October 19, 1953 a verdict of guilty eventuated, and on November 6, 1953 the defendant was sentenced to pay a fine of $500 and released on probation for the term of three years.
In the prosecution of the present appeal from the judgment of conviction errors are assigned on behalf of the defendant relating to certain specified rulings of the trial judge during the progress of the trial, and it is additionally contended that the verdict of guilty was manifestly discordant with the weight of the evidence.
In scrutinizing the record before us, a consideration more fundamental has infiltrated our attention. Obviously this defendant was indicted, tried, convicted, and sentenced for the commission of a misdemeanor violative of the terms of N.J.S. 2A:85--1, N.J.S.A. This section of the statute declares that:
'Assaults, batteries, * * * and all other offenses of an indictable nature at common law, and Not otherwise expressly provided for by statute, are misdemeanors.'
The italicized diction employed in the composition of this section of the statute is supremely significant in that the offenses of simple assaults and batteries and ordinary fist fights were 'otherwise expressly provided for by statute.' Turn the pages to N.J.S. 2A:170--26, N.J.S.A., which reads:
'Any person who commits an assault or an assault and battery is a disorderly person.'
And then to N.J.S. 2A:170--27, N.J.S.A.:
'Any 2 or more persons who fight together, or commit or attempt to commit assaults and batteries upon each other, either in public or in a private place, or are present, aiding, assisting or abetting the same, are jointly disorderly persons.'
The development of the sections to which we have referred and the reason for the presence of the qualifying phrase in 2A:85--1 were elucidatively explained...
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State v. Hernandez
...expressly provided for by statute. Compare: State v. Maier, 13 N.J. 235, 238, 99 A.2d 21 (1953), and State v. Cybulski, 31 N.J.Super. 164, 166, 106 A.2d 25 (App.Div. 1954). In this State conspiracy to commit a crime is expressly prohibited by N.J.S.A. 2A:98-1. State v. Carbone, 10 N.J. 329,......
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...by fine of not more than $1,000, or imprisonment up to a year, or both. N.J.S. 2A:169--4, N.J.S.A. See State v. Cybulski, 31 N.J.Super. 164, 106 A.2d 25 (App.Div.1954). In regard to the issue at hand, the distinction between simple and aggravated assault and battery is more than one of degr......
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