State v. Newman

• Citation: 128 N.J.L. 82,24 A.2d 206
• Decision Date: 04 February 1942
• Docket Number: No. 3.,3.
• Parties: STATE v. NEWMAN.
• Court: New Jersey Supreme Court

24 A.2d 206

128 N.J.L. 82

STATE

v. NEWMAN.

No. 3.

Supreme Court of New Jersey.

Feb. 4, 1942.

Error to Court of Quarter Sessions, Atlantic County.

Moe Newman was convicted of assault and battery, and he brings error.

Affirmed.

October term, 1941, before BROGAN, C J., and CASE and HEHER, JJ.

Emerson Richards, of Atlantic City, for plaintiff in error.

Harry R. Coulomb, Pros, of the Pleas, of Atlantic City (Robert N. McAllister, of Atlantic City, of counsel), for defendant in error.

HEHER, Justice.

Plaintiff in error was convicted of assault and battery upon an indictment charging atrocious assault and battery upon one Dorothy Lee, and sentenced to imprisonment for an indeterminate term of two to three years. He has caused the entire record of the proceedings had upon the trial to be returned with the bill of exceptions, pursuant to R.S.1937, 2:195-16, N.J. S.A. 2:195-16.

The first point made is that the trial judge erred in permitting "the count for atrocious assault and battery to go to the jury, since it indicated to the minds of the jury that the court felt that this affair was much more serious than it actually was" and "left the jury in a position to compromise by rejecting the charge of atrocious assault for that of simple assault." The indictment contained but one count; and there was a motion at the close of the case for the direction of "a verdict of not guilty on the charge of atrocious assault and battery." The motion was properly denied.

Inasmuch as the verdict exonerated the accused of this particular accusation, he suffered no prejudice by the ruling, even though the evidence would not sustain a conviction of that offense. Compare State v. Jayson, 94 N.J.L. 467, 111 A. 7. It is to be presumed that the jury understandingly adhered to the court's instructions and convicted the accused of assault and battery only because the evidence satisfied them of his guilt of that transgression beyond a reasonable doubt. The adoption of the view thus advanced would tend substantially to modify the well-established rule that the accused may be convicted of any crime of a lesser grade or degree, provided it is an ingredient of the greater offense alleged and is therefore included therein. State v. Johnson, 30 N.J.L. 185; State v. Jackson, 65 N.J.L. 105, 46 A. 764; State v. McDonald, 89 N.J.L. 421, 99 A. 128, affirmed 91 N.J.L. 233, 103 A. 165.

But it is also maintained that there was error in the denial of the accused's further motion, at the close of the case, for the direction of a verdict of not guilty as to "the lesser offense," i. e. "assault and battery, and/or assault," since the prosecutrix "was the aggressor, and * * * merely received in return, as she was in the act of committing an assault and battery upon" the accused, "a slap, or blow, to repel that attack." We find that the evidence presented a jury question as to, this issue.

The fracas occurred at a restaurant bar as guests invited to a birthday party were assembling. There was some horseplay. It was fairly inferable from the evidence that the prosecutrix "slapped" the accused in resentment at liberties she thought (and not altogether without reason) he had taken with her person, and that thereupon he struck her with sufficient force to cause her to fall to the floor, and later again felled her by a violent blow to the head with his fist, thereby causing physical injury. He explained that he merely "pushed her off" when she struck him with her handbag, the while using what his counsel characterizes as "vile language and profanity of a kind that was calculated to produce a physical response." It is not dispositive of the issue that there was "no evidence that the defendant had provoked the assault upon him." It was for the jury to determine whether, in repelling the alleged assault, he had used more force than reasonably seemed to be necessary for his own protection, and thus had committed an assault and battery.

And if the prosecutrix had directed opprobrious epithets to the accused, such did not constitute justification for the commission of an assault and battery. Even where physically attacked, the actor may use such force only as is, or he reasonably believes to be, necessary for his own protection. Self-defense may not be carried beyond the bounds of necessity. State v. Jayson, supra; State v. Len, 108 N.J.L. 439, 158 A. 749; Brown v. State, 62 N.J.L. 666, 42 A. 811.

Next, it is maintained that the trial judge erred in refusing to direct the Prosecutor of the Pleas to produce, for the use of the accused, a stenographic statement made by the prosecutrix respecting the altercation, believed to contain admissions at variance with her denial on cross-examination that she had applied certain abusive epithets to the accused just prior to the assault. The insistence is that such self-contradictory statements were admissible as tending to show that the prosecutrix was the aggressor, and also to affect her credibility.

As stated, name-calling would not constitute aggression serving to excuse or justify the assault allegedly perpetrated by the accused, since the element of self-protection would be wholly lacking. And prosecutrix admitted that, prior to the assault, she "slapped" the accused "in the face." Thus it is that the subject of the asserted self-contradiction was collateral and irrelevant to the issue framed, and in this regard the witness's answer was therefore conclusive. And this is likewise the general rule where the witness is cross-examined as to collateral matters for the purpose of affecting his credibility. State v. Mor, 85 N.J.L. 558, 89 A. 755; Moloney v. Public Service Railway Co., 92 N.J.L. 539, 106 A. 376; State v. Conner, 97 N.J.L. 423, 118 A. 211; Materka v. Erie R. R. Co., 88 N.J.L. 372, 95 A. 612; State v....