State v. Maier, A--46
| Decision Date | 25 June 1953 |
| Docket Number | No. A--46,A--46 |
| Citation | 13 N.J. 235,99 A.2d 21 |
| Parties | STATE v. MAIER. |
| Court | New Jersey Supreme Court |
Walter R. Gottschalk, Hoboken, argued the cause for the appellant.
Horace K. Roberson, County Prosecutor, Bayonne, argued the cause for the respondent.
Anthony P. La Porta, Hoboken, argued the cause for the intervenor complaining witness.
Eugene T. Urbaniak, Deputy Atty. Gen., argued the cause for the Attorney General, Amicus curiae.
Joseph Weintraub, Newark, argued the cause for the Sub-Committee on the Revision of the Criminal Laws to the Advisory Committee on the Revision of Statutes, Amicus curiae.
The opinion of the court was delivered by
A complaint was made in the Municipal Court of Hoboken against the defendant Maier charging that 'he did wilfully commit an assault and battery upon Frances Gianno by spitting upon the face and body of said Frances Gianno, all in violation of the Disorderly Persons Law, N.J.S. 2A:170--26 (N.J.S.A.)', which is a new section, enacted December 5, 1951, reading as follows:
'Any person who commits an assault or an assault and battery is a disorderly person.'
This section of the New Jersey Statutes must be considered in the light of N.J.S. 2A:85--1, N.J.S.A., which provides:
'Assaults, batteries, false imprisonments, affrays, riots, routs, unlawful assemblies, nuisances, cheats, deceits, and all otehr offenses of an indictable nature at common law, and not Otherwise expressly provided for by statute, are misdemeanors.' (Emphasis supplied.)
It is important to note that this section reads exactly like its predecessor R.S. 2:103--1, except for the insertion in N.J.S. 2A:85--1, N.J.S.A., of the word 'otherwise,' which obviously refers to N.J.S. 2A:170--26, N.J.S.A., which does 'otherwise expressly provide by statute' for assaults and assaults and batteries.
The defendant moved to dismiss the complaint on the ground that N.J.S. 2A:170--26, N.J.S.A., was unconstitutional in that it violated three paragraphs of our Bill of Rights 'No person shall be held to answer for a criminal offense, unless on the presentment or indictment of a grand jury, except * * * in cases now prosecuted without indictment * * *.' Const., Art. I, par. 8.
'The right of trial by jury shall remain inviolate * * *.' Const., Art. I, par. 9.
'In all criminal prosecutions the accused shall have the right to a speedy and public trial by an impartial jury * * *.' Const., Art. I, par. 10.
The municipal court denied the motion to dismiss the complaint.
Because of the public importance of the matter we granted defendant's petition for certification 10 N.J. 311, 91 A. 228. Procedural objections have been raised as to whether the case is ripe for appeal, but because of the number of cases in the several counties involving the same question, we deem it essential to proceed at once to the meritorious question, especially as the case has been extensively argued three times.
The intent of the Legislature in enacting N.J.S. 2A:170--26 and 2A:85--1, N.J.S.A., is known to all, for the matter was canvassed in a comprehensive report submitted to the Judicial Conference by its Committee on Improving the Administration of Criminal Justice and was debated in the Judicial Conference, of which the legislative leaders as well as the judges and representatives of the bar are members, Rule 1:7--3. Thereafter it was again the subject of a study by the Subcommittee on the Revision of Criminal Laws which reported to the Advisory Committee on the Revision of Statutes created by L.1950, c. 171, N.J.S.A. 1:11--1 et seq., which in turn made the report to the Legislature on which is based the revision of Title 2 of the Revised Statutes, of which the statutes in question, N.J.S. 2A:170--26 and 2A:85--1, N.J.S.A., are parts. Together, these two sections purport to make the conduct that theretofore constituted the crimes of simple assault and of simple assault and battery, R.S. 2:103--1, disorderly conduct instead of misdemeanors. It is apparent that N.J.S. 2A:85--1, N.J.S.A., was cast in this form in order that the State might not be without a general statute relating to assaults and batteries in the event that N.J.S. 2A:170--26, N.J.S.A., should be declared unconstitutional.
But the Legislature, by enacting N.J.S. 2A:170--26 and 2A:85--1, N.J.S.A., manifestly did not intend to make all assaults and batteries mere disorderly conduct, for it carried over into Title 2A three sections from Title 2 of the Revised Statutes relating to assaults and batteries:
'Any person who commits an atrocious assault and battery by maiming or wounding another is guilty of a high misdemeanor.' N.J.S. 2A:90--1, N.J.S.A., formerly R.S. 2:110--1.
'Any person who commits an assault with intent to kill, or to commit burglary, kidnapping, rape, robbery or sodomy, or to carnally abuse a female under the age of 16, with or without her consent, is guilty of a high misdemeanor * * *.' N.J.S. 2A:90--2, N.J.S.A., derived from R.S. 2:110--2.
'Any person who willfully or maliciously assaults another with an offensive weapon or instrument, or by menaces, force or violence demands of another any money or personal goods and chattels, with intent to rob such other person, is guilty of a high misdemeanor.' N.J.S. 2A:90--3, N.J.S.A., derived from R.S. 2:110--3.
These three kinds of assaults and batteries constituting high misdemeanors are differentiated from each other, N.J.S. 2A:90--1, N.J.S.A., by the vicious act, N.J.S. 2A:90--2, N.J.S.A., by the evil purpose of the defendant, and N.J.S. 2A:90--3, N.J.S.A., by the use of offensive weapons or threats of violence. Taken together they present a comprehensive legislative scheme for assaults and assaults and batteries of a more grievious sort clearly distinguishable from simple assaults and batteries. The very substantial sanctions attached to these three high misdemeanors (in the case of N.J.S. 2A: 90--1, N.J.S.A., and N.J.S. 2A:90--3, N.J.S.A., a fine of not more than $2,000 or imprisonment for not more then 7 years, or both, N.J.S. 2A:85--6, N.J.S.A.; in the case of N.J.S. 2A:90--2, N.J.S.A., a fine of not more than $3,000 or imprisonment for not more than 12 years, or both), are to be contrasted to the punishment formerly attached to the crime of simple assault and battery of a fine not exceeding $1,000 or by imprisonment not exceeding 3 years, or both, R.S. 2:103--6, and to that which is now imposed on assault and battery as disorderly conduct of not more than one year's imprisonment in a county workhouse, penitentiary or jail, or a fine of $1,000 or both, N.J.S. 2A:169--4, N.J.S.A.Clearly the Legislature, when it provided that 'Any person who commits an assault or an assault and battery is a disorderly person,' N.J.S. 2A:170--26, N.J.S.A., was providing for simple assaults and batteries as distinguished from the serious crimes provided for in the three sections of the statutes which we have just discussed. The Legislature might have interposed between simple assault and simple assault and battery as disorderly conduct and the three kinds of high misdemeanors above referred to, the intermediate offense of assault and assault and battery of general scope as misdemeanors distinguished by definition on the one hand from disorderly conduct and the three kinds of high misdemeanors on the other, and there is much that might be said for such a gradation in an offense of such a wide range as assault and battery, but the Legislature has not yet done so except in the limited instances of assaults on public officers in the service of process, N.J.S. 2A:99--1, N.J.S.A., and of assaults on news photographers and news reporters, N.J.S. 2A:129--1, N.J.S.A., and accordingly this problem is not now before us.
These gradations of assault and of assault and battery were unknown to the common law, Rell v. State, 136 Me. 322, 9 A.2d 129, 125 A.L.R. 602 (Sup.Jud.Ct.1939), 2 Burdick, The Law of Crime (1946), sec. 345, although by statute some assaults and assaults and batteries were punished more severely than others by reason of the victim being a cleric or a member of the royal household or because the crime was committed in a church or a church yard, a court of justice or a royal palace, 5 and 6 Edw. VI, c. 4. But aside from the position of the aggrieved person or the place where the crime was committed, there was at common law no differentiation in degrees of these crimes. Not only were there no degrees of assault or of assault and battery at common law, but they were crimes of very extensive scope and application designed to protect the individual from every kind of bodily harm or the fear thereof short of death. Assault covered every 'attempt or offer with force and violence, to do a corporal hurt to another,' 1 Hawkins, Pleas of the Crown, 113. Blackstone defines it as 'an attempt or offer to beat another, without touching him', 3 Commentaries 120, while according to Wharton it is 'an apparent attempt by violence to do corporal hurt to another,' 1 Criminal Law (10th ed.), sec. 603. On the other hand a battery is a 'consummated or completed assault,' 2 Burdick, The Law of Crime, sec. 350. It necessarily includes an assault. The offense is usually referred to as an assault and battery and at common law meant any unlawful bodily harm done to another person. 'It seems that any injury whatsoever, be it never so small, being actually done to the person of a man, in an angry, or revengeful, or rude, or insolent manner, as by spitting in his face, or any way touching him in anger, or violently justling him out of the way, are batteries in the eye of the law.' 1 Hawkins, Pleas of the Crown, 134. 'The law cannot draw the line between different degrees of violence, and therefore totally prohibits the first and lowest stage of it; every man's person being sacred, and no other having right to meddle with it, in even the slightest manner.' 3...
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