STATE OF NEW JERSEY. PLAINTIFF-RESPONDENT, v. LEONARD EDWARDS, DEFENDANT-APPELLANT.
Supreme Court of New Jersey
Argued October 21, 1958-Decided November 17, 1958.
28 N.J. 292
Mr. Williаm J. Arnold argued the cause for the State (Mr. Guy W. Calissi, Bergen County Prosecutor, attorney; Mr. William C. Brudnick, Special Assistant Prosecutor, on the brief).
The opinion of the court was delivered by
WACHENFELD, J. The defendant waived trial by jury and was convicted by a judge of the Bergen County Court of the crime of atrocious assault and battery.
The only ground urged for reversal is that the injuries sustained by the victim were not sufficiently severe to warrant a conviction of atrocious assault and battery.
The defendant admits striking the victim in the face with his fist and pushing her into some bushes, but claims his actions amounted to only simple assault and battery. Formerly a crime, simple assault and battery has now been downgraded to a disorderly persons offense which is triable only in the municipal court. State v. Maier, 13 N.J. 235 (1953). Thus, if the defendant‘s contention is correct, the Bergen County Court had no jurisdiction over his offense.
On September 1, 1957 the defendant and one Mary Harbochuk had been making the rounds of various taverns in Passaic, Carlstadt and East Rutherford. She claimed the altercation ensued when the defendant tried to kiss her on the public street and she resisted his advances. He contended he had attacked Mary because she refused to return $40 he had entrusted to her. In any event, the girl was found by the police “moaning in a pitiful manner” and in
Mary testified: “I had a bruised lip and I had black and blue marks under my chin, on my chin, under my eye, on my forehead, my neck and inside my thighs and scratches all over.” She testified the scratches had been bleeding. Two photographs showing her physical condition were offered in evidence. The marks on her neck were apparent for “two or three weeks” later; they “gradually went away.”
Police Officer Meyers testified she was “quite bruised and her left eye was bruised and her neck had a few scratches on. Her lip was bruised, had a bruise.” He also stated one of her eyes was discolored.
Police Lieutenant Shevak saw the victim after she had been discharged from the hospital: “* * * she had a badly swollen eye, а lot of scratches around her neck, a split lip and bad bruises on the back of her left ear.”
Dr. Coenca, an interne at the Hackensack Hospital who had treated the victim in the emergency room, stated: “She had scratches on her face and neck and scratches on her legs and thighs and some bruises too. * * * I think she had some very superficial lacerations around the eyes on one side and the cheek, I think but very superficial-merely scratches more than lacerations.” Her left eye had “a very small laceration but it was not deep enough to be sutured.” The victim remained at the hospital two or three hours.
When asked by the court, “Could you characterize the injuries as showing a savage or brutal beating?“, the doctor replied: “It might be, but-I cannot be sure.”
As to the attack itself, Mary testified: “He grabbеd me by the throat. He dragged me a little ways into a lot and
The defendant‘s version of the attack appears in his voluntary statement, in which he said: “I struck her with my fist in her face, then I pushed her into the bushes near the sidewalk, then she fell down and I took my money and I left.”
The inquiry thus arises whether the attack and the results of it were sufficient to bring the crime within
“Any person who commits an atrocious assault and battery by maiming or wounding аnother is guilty of a high misdemeanor.”
The trial judge, in the course of his oral opinion, said:
“The law says that where a maiming or wounding is done by assault and battery that is savagely brutal or outrageously, or inhumanly cruel or violent, it amounts to atrocious assault and battery within the meaning of the statute.”
He defined “wounding” as meaning “injuring or hurting of a body such as bruising, contusing, lacerating, fracturing, dislocating, puncturing or cutting.” He concluded:
“In my opinion this was an outrageous, wanton, wilful attack upon this girl. She was dragged into a field, beaten with fists, scratched.”
The question presented by this appeal was only tangentially considered in the very recent case of State v. Riley, 28 N.J. 188 (1958). There, the decision turned upon whether a “wounding,” as the word is used in
In the Riley case we pointed out that atrocious assault and battery was defined in State v. Capawanna, 118 N.J.L. 429, 432 (Sup. Ct. 1937), affirmed p. c. 119 N.J.L. 337 (E. & A. 1938), as “an assault and battery that is savagely brutal or outrageously or inhumanly cruel or violent,” and that similarly in State v. Maier, supra, this court distinguished atrocious assault and battery from other types of aggravated assault and battery on the ground that
Again, in State v. McGrath, 17 N.J. 41, 49 (1954), in discussing the difference between simple assault and battery and atrocious assault and battery, this court stressed the nature, or brutal quality, of the defendant‘s act as an important element.
These cases make it quite clear that to constitute an atrocious assault and battery the assault must be savagely brutal or outrageously or inhumanly cruel or violent and that the nature of the attack is of paramount importance in determining whether the crime has been committed. The kind and severity of the injuries inflicted is another factor to be taken into consideration.
Although we decided in the Riley case, supra, that it would be impractical to endeavor to spell out a precise rule which would, in futuro, automatically decipher the differenсe on all occasions between simple assault and battery and atrocious assault and battery no matter what the facts might be, we definitely concluded that we would not accept the highly arbitrary rule that a “wounding” must necessarily entail a breaking of the skin.
The victim was “grabbed” by the throat and “dragged” into the lot. She was thrown to the ground. Her assailant had his knee in her stomach and was choking her. She was on the verge of “unconsciousness.” She “thought he was going to kill [her] right there.” The next thing she remembered was “the emergency crew camе and I saw lights and a stretcher.” It seemed to her that she had struggled for an “awful long time.”
The defendant‘s attack was savagely brutal within the meaning of the statute in question, but, having thus decided, the inquiry still remains as to whether or not the injuries inflicted were sufficiently severe or substantial to satisfy the statutory definition of atrocious assault and battery.
Although, generally speaking, penal statutes are to be strictly construed, State v. Meinken, 10 N.J. 348 (1952), the rule of strict cоnstruction does not mean that the manifestations of the Legislature‘s intention should be disregarded. State v. Friedman, 135 N.J.L. 419 (Sup. Ct. 1947), affirmed p. c. 136 N.J.L. 634 (E. & A. 1948). Thus, the word “wounding,” under these circumstances, should not be given a strained or technical meaning but should be interpreted according to its plain, obvious import, as the word is commonly employed.
In Gatlin v. State, 18 Ga. App. 9, 89 S.E. 345 (Ga. App. Ct. 1916), the court construed “wound” to include “injuries of every kind which affect the body, whether they are cuts, lacerations, fractures, or bruises,” while Bouvier‘s Law Dictionary (Baldwin‘s Cent. Ed. 1940), defines the word as:
“WOUND. Any lesion of the body. In this it differs from the meaning of the word when used in surgery. The latter only refers to a solution of continuity; while
the former comprises not only these, but also every other kind of accident, such as bruises, contusions, fractures, dislocations, and the like.”
To warrant a conviction of atrocious assault and battery, the injuries inflicted need not be permanent but they must nevertheless be substantial rather than superficial and should be considered in conjunction with the character of the assault made.
The defendant complains that “[t]he court did not follow and apply the rules of construction applicable to this highly penal statute and did not make a finding of fact in accordance with the evidence and the law applicable thereto.”
We find to the contrary. In summary, the injuries inflicted upon the victim consisted of a badly swollen eye, a laceration beneath the eye, bad bruises on the back of her left ear, black and blue marks under and on her chin, on her forehead, neck and inside her thighs, and scratches all over which bled. She was given hospital treatment, although released after two hours, and the marks of her injuries werе apparent for two or three weeks.
True, the doctor testified that the scratches were superficial, but whether, in legal contemplation, they were or not was a question for the court to decide, taking into account the evidence of all of the other witnesses who seemed to think otherwise.
Under these circumstances, it became a question of fact to be decided by the trial judge, sitting without a jury, as to whether or not the injuries sustained were sufficiently substantial to come within the definition of the statute. He found against the defendant in this respect, and we are in accord.
The judgment below is affirmed.
For affirmance-Chief Justice WEINTRAUB, and Justices WACHENFELD, BURLING, JACOBS, FRANCIS and PROCTOR-6.
For reversal-Justice HEHER-1.
There is no occasion to recount the evidence adduced as proof of the charge laid to the defendant. The indictment alleges an atrocious assault and battery, also a high misdemeanor under
“Maim” in its common acceptation means (a) to “deprive of the use of a limb or member, so as to render a person
“Mayhem” is defined by statute,
An assault with intent to kill, commit burglary, kidnapping, rape, robbery, sodomy or carnal abuse is classified as a high misdemeanor,
“Assaults, batteries” and certain other enumerated offenses, and all other offеnses of an indictable nature at common law, “and not otherwise expressly provided for by statute,” are denominated misdemeanors, punishable by a fine of not more than $1,000, or by imprisonment for not more than three years, or both, unless otherwise specifically provided.
And now, all such assaults and batteries of lesser gravity and degree, formerly termed misdemeanors, are classified as disorderly conduct. One whо commits “an assault or
The evidence here does not establish the charge of atrocious assault and battery “by maiming or wounding,” under
Dr. Sylvia Coenca testified that her examination of the prosecuting witness at the Hackensack Hospital revealed “some very superficial lacerations around the eyes on one side and the cheek, I think but very superficial-merely scratches more than lacerations“; there was a need only to “clean up the scratches and that‘s all; there was no more treatment than that.” The doctor was then shown a photograph of the prosecuting witness, “to refresh [her] memory“; and she reiterated: “It was just scratches-I remember her very well. It was only scratches.” And the doctor was unable to say whether the bruises were inflicted by blows. A police officer told of “weeds and brushes” at the locus. The prosecuting witness said that defendant made no mention of sexual relations; there was no “discussion about loving“; and she did not know why the defendant “attacked” her. Another police officer said that he did not notice any scratсhes on the prosecuting witness when he first saw her. And she admitted that the photographs of her taken not long after the occurrence showed “no scratches” of the face, but she insisted “they were there.” Alcoholic excesses may account for other incidents cited by the State, not involving maiming or wounding; and there is the element of exaggeration.
The “down-grading” to “disorderly conduct” of the lesser degree of assault and battery theretofore classified as a misdemeanor, has not altered the essential character and quality of the aggravated offense denounced by
And it goes without saying that the courts cannot do what the Legislature has failed to do.
At common law an assault is an attempt to do unlawful bodily harm or injury to another, that is to say, an attempt to commit a battery; and a battery is a consummated or completed assault. Under the common law there is no classification of assaults as to the degree of the offense, all assaults being misdemeanors. Yet some assaults are there regarded as more serious than common assaults, since in addition to the general intent to commit an assault there was a specific intent to do some other act also criminal, as an assault with intent to murder, to rob, or to commit some other felony, often described as “aggravated assaults,” and for that reason punishable with more severity than simple assaults. There are no legal or technical differences
There was here no “maiming or wounding” within the intendment of
If the disorderly person provision,
In State v. Riley, 28 N.J. 188 (1958), a club was the instrument of the assault and battery committed by the defendants, “an offensive weapon or instrument.”
The interpretation of the statute concerns not alone the basic rights of the particular defendant, but the future enforcement of the law as well.
I would reverse the judgment.