State v. Owens

Citation254 A.2d 97,54 N.J. 153
PartiesSTATE of New Jersey, Plaintiff-Respondent, v. Richard OWENS, Jr., Defendant-Appellant.
Decision Date04 June 1969
CourtUnited States State Supreme Court (New Jersey)

Morton Stavis, Newark, for appellant (Daniel Crystal, Paterson, on the brief. Irvin L. Solondz, Newark, attorney).

Donald S. Coburn, Asst. Prosecutor, for respondent (Joseph P. Lordi, Essex County Prosecutor, attorney).

The opinion of the court was delivered by

WEINTRAUB, C.J.

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, 245 A.2d 736 (1968), and we granted defendant's petition for certification, limited to the issue of the right to trial by jury. 1 52 N.J. 533, 247 A.2d 15 (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. 2A:170--26, N.J.S.A., the maximum authorized punishment at the time defendant was tried was one year in jail and a $1,000 fine. N.J.S. 2A:169--4, N.J.S.A. 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, 8) and trial by jury (Art. I, 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, 236 A.2d 592, 601 (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. 2A: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. 2A: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, 99 A.2d 21 (1953); State v. Block, 119 N.J.L. 277, 282, 196 A. 225 (Sup.Ct.1938), affirmed, 121 N.J.L. 73, 1 A.2d 408 (E. & A. 1938); Huff v. C. W. Goddard Coal, etc., Co., 106 N.J.L. 19, 21, 148 A. 175 (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. 2A: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. 2A: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., 99 A.2d 21. 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.2d 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, §§ 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 therefore to be inapplicable to 'petty offenses' since offenses so classifiable were tried summarily at that time.'

Defendant nonetheless contends a jury trial must be afforded, for reasons to which we turn.

I.

First, defendant asks that we reconsider State v. Maier, 13 N.J. 235, 99 A.2d 21 (1953). That case involved the same disorderly persons statute with which we are here concerned. Prior to the adoption of that statute, a simple assault and battery had been denounced as a 'misdemeanor,' I.e., a crime, with a maximum penalty of three years in jail and a $1,000 fine, and of course a conviction entailed the civil disabilities which other statutes visited upon a conviction for crime. By 'downgrading' the wrong to a disorderly persons offense, the Legislature decided such misconduct should carry no punishment beyond that authorized for petty offenses and should not result in the civil disabilities theretofore consequent upon a conviction of assault and battery as a crime.

In Maier, by a vote of 4 to 3, this Court sustained the constitutionality of this statute. Defendant in the case before us asks that we accept the view of the dissent in Maier. The dissent, as we understand it, rested upon two propositions: (1) that assault and battery was a crime at common law rather than a petty offense; and (2) that our State Constitution assured indictment and trial by jury with respect to each and every act of misconduct which at common law was denounced as a crime. From those propositions, it was argued that the Legislature could not lower the grade of such misconduct by treating it as a disorderly persons offense (or perhaps that, no matter how petty the new level of authorized punishment, the procedural rights which attended a common-law prosecution for the specific misdeed remained inseparable from it).

The majority opinion in Maier disputed the first proposition, I.e., that a simple assault and battery could not be prosecuted as a petty offense at common law. In any event, the majority declined to accept the second proposition, that the Legislature could not downgrade what was a crime at common law to an offense below the grade of crime and refuse a trial by jury. With this we fully agree.

Our Constitution was not intended to consecrate the common law's treatment of any specific misconduct and thus to bar legislative revaluation of it in the light of changing conditions and mores. Rather the Constitution abstracted from the common law the concept that whether a prosecution must be by indictment and jury trial depends upon the consequences which ensue from a conviction. Thus succeeding generations remained free to decide what is worthy of the pain and stigma of a conviction for crime but obliged to provide for indictment and trial by jury whenever that pain and stigma are authorized. It would hardly do to require the State to continue to lay a heavy hand upon conduct now unworthy of it, for no better reason than an appraisal of it made centuries ago in another clime. Nor would it make sense to permit the Legislature to deny the rights of indictment and jury trial for an act it punishes as a misdemeanor or even a high misdemeanor simply because the forbidden act was not a crime at common law.

The rational course, as we have said, is to attribute to the Constitution the principle that these procedural rights must be afforded or not, depending upon whether the offense is treated as a crime or as a petty wrong. The surest index is the consequences which may flow from a conviction. In Frank v. United States, 395 U.S. 147, 89 S.Ct. 1503, 1505, 23 L.Ed.2d 162 (May 19, 1969), the Supreme Court said 'In determining whether a particular offense can be classified as 'petty,' this Court has sought objective indications of the seriousness with which society regards the offense. District of Columbia v. Clawans, Supra (300 U.S. 617, at 628, 57 S.Ct. 660, 81 L.Ed. 843 (1937)). The most relevant indication of the seriousness of an...

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