State v. Zelichowski, No. A--151

• Court: United States State Supreme Court (New Jersey)
• Writing for the Court: SCHETTINO
• Citation: 245 A.2d 351,52 N.J. 377
• Docket Number: No. A--151
• Decision Date: 15 July 1968
• Parties: The STATE of New Jersey, Plaintiff-Respondent, v. Kenneth ZELICHOWSKI, Defendant-Appellant.

Page 377

52 N.J. 377 245 A.2d 351 The STATE of New Jersey, Plaintiff-Respondent,
v.
Kenneth ZELICHOWSKI, Defendant-Appellant. No. A--151. Supreme Court of New Jersey. Argued May 21, 1968.
Decided July 15, 1968.

Page 379

[245 A.2d 352] Paul R. Williams, Jr., Westfield, for appellant.

Arthur J. Timins, Asst. Prosecutor of Union County, for respondent (Leo Kaplowitz, Prosecutor of Union County, attorney, Arthur J. Timins, on the brief).

The opinion of the court was delivered by

[245 A.2d 353] SCHETTINO, J.

This is an appeal from a conviction of atrocious assault and battery.

On June 17, 1966, at approximately 12:30 P.M., an Elizabeth policeman found the deceased, John Schlagenhaft, lying beaten and helpless alongside a brook in a city park. The victim, covered with 'crusty blood' and clothed only in a ripped T-shirt and a pair of socks, was removed to a hospital where he died at 8:05 A.M. on June 20.

A Union County Grand Jury subsequently indicted Kenneth Zelichowski and three other men for the murder of John Schlagenhaft.

At the joint trial of Zelichowski and one co-defendant, it developed that the four men, while walking in the park on the evening of June 16, had come across Schlagenhaft sleeping in the grass. Without any apparent reason or provocation, the four had commenced beating and stomping the victim. The attack lasted approximately two minutes and ceased

Page 380

only when the sight of a passing police car frightened the assailants away.

The victim was not found until approximately 15 hours later. In the interim, the victim had somehow moved or been moved approximately 100 feet from the spot of the initial beating. And though the body was found virtually nude, there was no evidence that the four attackers had stripped their victim.

Zelichowski and the co-defendant tried with him were convicted by a jury of atrocious assault and battery. ¹ Zelichowski appeals under former R.R. 1:2--1(c) from his conviction and a sentence of 6--7 years and a $1,000 fine.

Defendant's primary contention is that the trial court erred in instructing the jury that it could return a verdict of guilty of atrocious assault and battery. Although the indictment was the customary short-form murder indictment, the trial court listed four possible verdicts: not guilty; first degree murder with a recommendation of life imprisonment; second degree murder; and atrocious assault and battery. The court properly felt that a homicide conviction could not be sustained without proof beyond a reasonable doubt of a proximate relationship between the beating administered by the defendants and the death of the victim. ² The court decided

Page 381

to charge on atrocious assault and battery because it also felt that, upon the evidence submitted, the jury might entertain a reasonable doubt as to cause of death.

I.

Although defendant made no criticism of the court's theory at trial, he now submits that there was no evidentiary basis for a charge on atrocious assault and battery. Defendant asserts that under the evidence submitted the possible verdicts should have been not guilty or guilty of some degree of murder, and that a conviction of [245 A.2d 354] atrocious assault and battery must represent a compromise verdict. However, examination of the record discloses several factors which obviously impelled the court's concern on the question of cause of death. The attack took place about 9:30 P.M. on June 16, yet the victim was not found until 12:30 P.M. on June 17, approximately 15 hours after the initial attack. Moreover, the victim's body was found approximately 100 feet away from the spot of the beating, though there was no evidence that the four defendants had moved the victim. And, while no evidence indicated that the four defendants had removed the victim's clothing, the body was found nude except for a ripped T-shirt and a pair of socks.

We cannot say that the trial court's determination that the jury might legitimately entertain a reasonable doubt about cause of death was irrational or unsupportable. The long interval before the body was found, and the circumstantial evidence indicating it had been moved and tampered with, gave the trial court legitimate pause and might have instilled a reasonable doubt in the minds of the jury concerning cause of death. As a legitimate basis for doubt about cause of death did exist, we are satisfied that there is no substance to defendant's claim that a conviction of atrocious assault and battery represented a compromise verdict.

Page 382

II.

Defendant argues that even if the evidence left a legitimate doubt as to cause of death, a conviction for atrocious assault and battery is impermissible under a murder indictment. Specifically, he urges that atrocious assault and battery is not an offense 'necessarily included' within murder (see R.R. 3:7--9(c)), and that a conviction of assault on a murder indictment therefore deprives him of his right to be informed of the nature and cause of the accusation against him. N.J.Const., Art. I, § 10.

Although the State objected to the listing of atrocious assault and battery in the charge, neither...