*1 complete an investigation satisfy themselves upon vital question which is the essence of the inquiry, namely, of what credibility appears confession.
The of this holding case gives majority’s protestation that “In this State our courts are mindful always of the accused” a rights hollow ring. assurance seems hollow in doubly light emphasis upon formalism in this case while it has been our boast in all other causes that we have subordinated the niceties procedural to decisions on the merits. me
To this decision is a retreat regrettable from the advanced we won in the position Gicenia case. I would affirm Judge Speakman’s order its entirety. Jacobs, JJ.,
I-Ieher in this join dissent. For reversal—Chief Justice and Justices Vanderbilt, Burling—4. Oliphant, Wacheneeld For Jacobs and Brennan—3. Heher, affirmance—-Justices JERSEY, PLAINTIFF-RESPONDENT, STATE OF NEW MAIER, ALBERT DEFENDANT-APPELLANT.
Argued 1, 1952—Reargued. January 26, December 1953 and March Decided June1953. *3 for the Mr. Walter R. Gottschallc cause argued appel- lant. Roberson, Prosecutor, County argued
Mr. Horace K. for the respondent. cause
Mr. P. Porta the cause for the inter- Anthony La argued venor witness. complaining Urbanialc, Attorney-General, Eugene argued
Mr. T. Deputy amicus curiae. the cause for the Attorney-General, the cause for the Mr. Sub-Corn.-: Joseph argued Weintr.aub Advisory. the Criminal Laws to on the Revision mitt.ee Statutes, curiae. the Revision amicus Committee on delivered by of the court was opinion in the Munici- made A complaint C. J. Vanderbilt, Maier charging the defendant Court of Hoboken pal against battery upon- that “he did an assault commit wilfully of said body face and upon Frances Gianno spitting Disorderly all in violation of the Gianno, Frances Persons. enacted section, Law, 2A:170-26,” is a new which N. J. S. follows: 5, 1951, reading December “Any person battery an assault or an who commits assault disorderly person.” is a
This section of the New Statutes must considered Jersey :85-1, 2A of N. J. S. which provides: light “Assaults, batteries, imprisonments, affrays, riots, routs, false cheats, deceits, assemblies, nuisances, unlawful and all other offenses- law, expressly of an otherwise indictable nature at common and not provided by statute, (Emphasis supplied.) are misdemeanors.” It this section reads to note that like important exactly *4 2:103—1, R. for the except its S. insertion predecessor N, “otherwise,” J. 2A :85-1 the word which obviously S. :170-26, refers J. 2A which does “otherwise ex to N. S. statute” for assaults assaults and by pressly provide batteries. on the complaint
The defendant moved to dismiss in that J. 2A :170-26 unconstitutional N. S. ground Bill Rights: of our it violated three paragraphs person- offense, “No shall be held to answer for a criminal unless * * * presentment grand jury, except on the or indictment of a * * prosecuted Const., in cases now indictment I, par. Art. 8. * * *." right by jury “The of trial shall remain inviolate Const., I, par. Art. 9. prosecutions “In all criminal the accused have shall * * speedy public impartial *." Const., I, par. Art. 10. court denied the motion to municipal dismiss the complaint. ' Because of the the matter we public importance granted defendant’s petition for certification-. Procedural objections have been raised as whether the case ripe appeal, because of the in the several but number of cases counties the same we deem it essential to involving question, proceed at once the meritorious as the case question, especially to- has been three extensively times. argued
The intent of the J.N. S. Legislature enacting 2A :170-26 2A all, is known the matter was :§5-1 canvassed in a submitted to the Judicial comprehensive report Conference by its Committee the Administra Improving on tion of Criminal Justice and was debated Judicial Conference, of which the leaders as well as the legislative judges are representatives members, bar Rule 1:7-3. Thereafter it was of a again subject study the Subcommittee on the Revision of Criminal Laws which reported to the Committee the Revision Advisory Statutes created c. in turn which made the report to the on which is based the Legislature revision of Title Statutes, Revised of which the statutes in N. 2A question, :85-1, J. S. :170-26 and 2A are parts. these two sections Together, to make the purport conduct that theretofore constituted the crimes assault and simple assault and simple 2:103-1, R. battery; S. con disorderly duct instead of misdemeanors. It is that N. J. -apparent S. 2A :85-1 was east in this form in order that the State might not be without a statute general to assaults and relating *5 should be :170—26 2A N. J. S. in the event
batteries unconstitutional. declared and 2A :170-26 N. J. S. by enacting
But the Legislature, and assaults make all not intend to :85—1, did manifestly 2A into over conduct, it carried for disorderly mere batteries Revised Statutes Title from three sections Title 2A and batteries: to assaults relating by battery “Any person assault an atrocious commits who high guilty misdemeanor.” maiming wounding of a is another or formerly :90-1, R. S. 2:110-1. N. 2A J. S. kill, “Any person intent or to an assault with who commits sodomy, carnally robbery kidnapping, rape, burglary, or or commit consent, age or without her with a under abuse female * * 2A:90-2, high guilty *." N.J. S. a misdemeanor from R. S. 2 :110-2. derived maliciously “Any person willfully another with assaults or who menaces, instrument, by weapon violence force or or offensive or chattels, money goods personal demands or of another high guilty person, misdemeanor.” intent rob such other :90-3, R. S. 2:110-3. N. J. S. 2A derived from These three kinds assaults and batteries constituting other, differentiated each N. J. misdemeanors are from S. high act, 2A :90-1 N. J. 2A evil vicious S. :90-2 pur defendant, 2A the use of J. S. :90-3 pose N. offensive or threats of violence. Taken weapons together they scheme for assaults present comprehensive legislative and assaults and batteries clearly of more sort grievous and batteries. The distinguishable simple very assaults substantial sanctions attached to these three misde high 2A meanors the case of N. J. S. :90-1 and N. J. S. (in $2,000 2A :90-3 a fine of not more than or imprisonment both, :85-6; more than 7 J. 2A years, not or N. S. :90-2, $3,000 the case N. J. 2A a fine of not more than S. not more than 12 or are to years, both), or imprisonment to the attached to the punishment formerly be contrasted assault and a fine not simple battery crime exceeding $1,000 both, 3 years, by imprisonment exceeding 2:103-6, R. and to that which is now on assault imposed S. more than conduct of not one battery disorderly year’s imprisonment *6 in workhouse, a county jail, or penitentiary or a fine $1,000, of both, or J. 2A :169-4. Clearly N. S. the Legislature, when it who provided “Any person commits an assault or an assault is a disorderly and battery person,” N. J. :170-26, S. 2A providing simple assaults and batteries as from the serious distinguished crimes provided for in the three' sections of the statutes which we just have discussed. The have Legislature might interposed between assault and assault and simple simple battery as conduct and the disorderly three kinds of high misdemeanors to, above referred the intermediate offense of assault and assault and of as mis battery scope general demeanors by definition on the one hand from distinguished conduct disorderly and the three kinds of misdemeanors high on the other, and there is much that be said such might a in an gradation offense of such a wide assault and as range battery, but the has not done so Legislature yet except the limited instances of public assaults officers service :99-1, of N. 2A process, J. and of assaults on news S. :129—1, and N. 2A photographers news J. reporters, S. this is problem not now before us. accordingly
These assault and bat gradations assault were unknown tery law, State, to the common Rell 136 Me. 9 322, A. 2d 125 A. L. R. 602 Jud. Ct. 2 1939), (Sup. Burdick, Law Grime sec. (1946), although statute some assaults and assaults and batteries were punished more than others severely by reason victim a cleric being or a member of the or royal household because crime was committed in church a yard, a or church a court of justice VI, royal or a 5 and Edw. c. 4. But aside from palace, or the position place where aggrieved person committed, law crime was there was at common differ no entiation in of these crimes. Not were there no degrees law, at of assault or of assault and battery common degrees but were crimes extensive they very scope application the individual from kind every designed protect bodily harm or the fear thereof short death. Assault covered every “attempt violence, or offer force to do a Crown, Hawkins, Pleas another,” lrurt
corporal to beat or offer 113. Blackstone defines it “an attempt as 120, while another, him,” 3 Commentaries touching violence attempt to Wharton it is “an apparent according ed.), Law another,” (10th 1 Criminal to do hurt to corporal or sec. “consummated battery 603. On other hand Crime, sec. 350. assault,” Burdick, The Law completed usually The offense It includes an assault. necessarily law and at common referred to an assault and battery person. to another meant unlawful harm done bodily small, it never so whatsoever, “It seems that any injury or in an man, angry, done to the actually person being his rude, manner, as by spitting or or insolent revengeful, face, violently justling him any way anger, touching *7 the law.” eye him of the batteries way, out are draw law cannot 134. “The Hawkins, Crown, Pleas violence, and therefore different degrees the line between it; man’s every the first and lowest stage totally prohibits meddle to sacred, and no other having right person being Com manner.” 3 Blackstone’s it, in even the slightest law ranged 120. Assault and at common battery mentaries the law cannot nevertheless offenses, these minor which from man short overlook, just afford to to violence falling or murder. slaughter as assault and battery law of assault and' of
The common and and assaults of assaults statutory system well as men heretofore were well known to the committees batteries which the tioned, legislative Conference of to Judicial debated, it was and to where leaders were members of the problem itself. All realized gravity Legislature before enactment To state it succinctly, presented. assault and it thought every 2A :170-26 was N. J. S. only proceeded against could be battery assault every a trial aby petit jury an of grand indictment most crimes known same manner as the serious exactly fit, saw where course, the defendant law, unless, of our to it, waive his constitutional right the statute permitted But there R. S. :219-33. jury, and trial by indictment are many assaults and many which, assaults and batteries they though constitute inexcusable invasion of the rights of the individual citizen have seemed thereby, aggrieved long to the members of busy to be unim- grand juries relatively portant in comparison with murder, such as robbery crimes rape, come before them for in all attention too numerous complaints. There has therefore been perfectly natural for tendency assaults and relatively unaggravated assaults and batteries to go unredressed in instances many the failure of the through offenders, to indict the grand jury reason of largely by its with more preoccupation serious offenses, there be although can no doubt that the unwilling- ness of jurors to grand their fellow stigmatize citizens as criminals for a offense is slight also factor. resulting- failure to indict is not unfair to the individual citizen whose personal security molestation physical and fear has been invaded without the redress that the law contemplated would him; makes, be accorded it also one hand, for on the continuing lawlessness part unpunished offenders and witness their many who flaunting and, of the law on the other hand, it makes fear as to their safety well personal as for a lack respect law on the part victims of this failure of the judicial process and of other members of the community. peaceloving This maladministration of criminal law cannot fail detrimental highly occurs, which it neighborhood seem although may relatively in com- unimportant *8 parison the lurid crimes that find their into way the headlines the of there can be newspapers, little reason to doubt that these collectively minor infractions of seemingly law, the because of the of their occurrence and the frequency their accumulative effect of unpunished, a going present major in the problem administration of criminal if justice, objectives the fundamental of the law for the maintenance and are peace of order to be achieved.
There little can be doubt of the desirability of N. J. S. 2A :170-26. The only before us is whether question or not 8, 9 it contravenes and 10 of Article I paragraphs of our and aby Constitution to indictment grand relating requires: resolve this question To impartial jury. of the justice of the of jurisdiction (1) study summary tres law, with respect the at peace especially common enlarging legislation of of the passes; (3) study growth and of the peace of the jurisdiction justices especially in summary proceedings, municipal magistrates :170-1 et Act, seq., N. 3A J. S. under the Persons Disorderly three quoted of the scope an examination of (3) constitutional provisions. Summary of the Justice
I. The Jurisdiction Law.
the Peace at Common limited to us is not The general problem confronting in the administration New universal Jersey; problem it to provide justice. necessary In every jurisdiction summary for the machinery punishment effective that fall peace and breaches of fashion minor offenses treat more formal require far short of crimes which being justice of the ment. At common law this was province was one of the king’s peace peace. keeping pre as well as one of responsibilities great the chief it was exercised the crown. Prior to 1327 rogatives Lambard, Eirenarcha, constables, sheriffs, coroners judges, 3-4. The Burns, ed.), pp. 3-22 Justice (1793 pp. (1607), year had in that its justice origin office of peace, by in the establishment of local conservators 16, “in 3, every county, enacted that virtue 1 Edw. c. which evil, lawful, which shall be no maintainers men and good keep country, shall assigned or barretors ministerial, purely their authority At first peace.” however, Gradually, that of the local constables. paralleling Lambard, were judicial powers, according they granted 3, 1, they of 33 Edw. c. became 23, Id. after the passage c. were they In 34 Edw. as justices. known “hear and determine at suit king’s authority given same county.” done trespass manner of felonies all
245 Crown, 2 Hawkins, 38; Pleas 1 p. Stephens, History of the Criminal Law 113 But England (1883). clear that their primary was to and that duty keep peace the powers accorded them were in addition gradually merely to their conservators, basic as powers Burns, 3 (1793 Justice ed.), 10. The p. authority Edw. c. granted hear and determine trespasses included a wide variety offenses. Sergeant Hawkins that the word says “is trespass a word extent, of very general and in a sense not large only all comprehends offenses, inferior which are properly directly as assaults against peace, and batteries and such like, also all but others which are so only by construction; as all breaches law in are be.”, said to general Pleas the Crown 40. He (Emphasis supplied) on to goes say that all of these arise out of and were directly connected with the justices’ duty to preserve the peace: * “* * inasmuch as the chief end the institution of the justices, preservation peace against office of these was for the of the personal wrongs, open violence; trespass and the word in its proper sense, injuries, most and natural is taken for such kind of only it shall be understood sense in the said statute commission, only or at the most to extend to such other offences tendency as have direct and immediate to cause such breaches * * peace; of the 2 Id. 40. in Bacon’s Similarly Abridgement, which Sir Maine Henry has termed “our classic English digest,” distinguished author in of “inferior speaking offenses” says: therefore, held, “And it hath been that not assaults batteries, libels, barretry, nightwalking, but and common and haunt ing bawdy-houses offences, tendency and such like which have a direct peace, cognizable by justices to cause breaches of the are of the peace, trespasses proper meaning within the and natural * * *” Bacon, Abridgement word. (4th A Neto the Law 1778), (Emphasis supplied.) ed. 292. significance jurisdiction justice of the over all forms of trespass, including assault and batterj?, Holdsworth, in 2 explained History English Law 364 : (1923) *10 [trespass] reign quasi-criminal “This action in Edward I’s was a proceeding, e., though proceeding begun i. it awas at the suit of injured individual, the it was aimed at serious and forcible breaches peace, punishment of the and it ended in the of the defendant as * * * compensation plaintiff. well as in to the trespass, then, reign A in Edward I’s is a tort insofar as it is begun by injured an action of the individual—but it of a criminal punished trespasses by nature. A man can be for his the court * * which tries the action *. It is to the mixed character of penal reparatory this action—to its and its sides—that we must growth side, and, look for the of the misdemeanor on the one on other, supplement the for a form of civil action which will the ** * early general deficiencies of our law of tort when the (he eyre justices mainly declined and itinerant confined themselves legal business, justices peace when the of the took over the business, ‘trespasses’ smaller criminal is felonies and which will presented trial; trespasses presented to them for and it is the so which will become the misdemeanors our later law.” It is important to in mind the dual keep nature of trespasses, batteries, assaults and including when we especially come to examine the entries in the Hunt, of William diary justice thej of the peace for County of Wilts (1744-1748).
By 11 Hen. c. 3, the justices of the were em peace powered to “hear and determine all offenses and contempts” except felonies on information. Under this statute trials were indictment, had without presentment or jury, Coke Inst. 41. This particular statute provoked so much discontent that it was on the death of repealed VII, Henry Hen. c. 6. But- the jurisdiction the though justices over all peace offenses felonies contempts except was repealed, steady growth number and variety summary penal proceedings indictment or trial by before one or more justices of the hereinbefore peace continued noted the 18th throughout Century. Writing the 18th Holdsworth Century, says: statutes, gave “We have seen that the stream of which to the justices position importance their of decisive in (low government boroughs, begun of the counties and the had period. in the Tudor That stream increased in volume down century. nineteenth It not added to and elaborated imposed many the duties of the minor officials of the local government, constables, overseers, surveyors high- such as ways. Throughout eighteenth century, working and inter- pretation by single justices pairs justices, of these statutes or supervision quarter under law, sessions and courts of common creating many elaborating new law old law on much topics, closely different which were more or less related to the topic government. of local justices primary duty keep peace. The was to That always permanent duty must be the earliest and most of officials powers government, entrusted with the local central. There- was, first, there fore close connection between local government law; and the criminal and that connection was main- long government tained after the had other undertaken tasks be- primary keeping peace. many its sides task of statutes regulated citizens, imposed obliga- which the activities of which pecuniary upon them, organized personal public tions which *11 services, poor maintenance, necessarily pro- such as or road relief punishment disobeyed Therefore, for vided the those who them. of enlarging governmental powers justices, they, whilst the of at the e'nlarged jurisdiction. continually the same time their criminal adjective, law, criminal Since the both substantive and had come very body law, a of to be the enforcement both of the technical law, easy of the old common law rules and new statute was no justice done; must matter. Substantial justice but if that substantial conformity very was not done in the rules of a technical justices system, might easily expose personal the themselves to liability. catalogue jurisdiction enlarged A which the statutes of otherwise, justices, very large pro- the criminal or would a include portion during century. passed eighteenth of the statutes the Such catalogue, arranged, useless, a would be since it however would omit rules, adjective, which the common .law substantive and those interpretation upon presuppose, put statutes and the these com- History statutory English mon law and rules 10 courts.” (1938). Laxo 159-160 in their
Sidney English Beatrice Webb Local Govern- ment, vol. 1 Parish (The County), give an even more account of the work of the specific justice of outside of the quarter sessions: peace jurisdiction ranged criminal “Their from the smallest misdemeanor fine, penalized shilling a such as the of an oath utterance or statutory up nuisance, grave of a the commission trivial incorrigible vagabondage, rick-burning, killing or offenses game, corporal punishment, long for which severe term of im- case, prisonment, years transportation or even in one seven could * * * be inflicted. provision there was for or Yet no for the publicity open prosecutions Even in of an under such drastic court. penal relating vagrancy preservation statutes those and the game, ‘Single Justice’ the ‘Double or Justice’ heard the case - chose, necessarily public, admitting whenever he even the defendant’s attorney; took whatever evidence he deemed necessary, both and himself decided law and fact.”
In Hunt, to the of William diary justice referring 1743-1748, of Wilts for the County years state: they doing something every days, granting him “We see two or three summonses, swearing signing parish accounts, persons warrants and to disposing affidavits, another, issuing passes certificates and sort or one petty bastardy, assault, ‘hedge-pulling’ cases of and non- * *
payment wages (Emphasis supplied.) Id., An examination of the entries this diary dealing with assault and assault and battery very reveals clearly dual nature of these offenses which has Holdsworth appropri Id., 364, crimes, termed both torts and In ately supra. many instances with the parties agreed damages consent either before after justice’s Occasionally, hearing. however, we find an entry summary showing punishment: Oct., against Benjamin 1744. Granted warrant Lewis of violently Lavington, Ivey assaulting Markett of Edward parish baylief, Burbidge, complainant. Upon hearing sherieffs Bishop the evidence of William and William was so clear Bell against him *12 I him committed to the Bridewell at Devizes.” In is a term “bridewell” to “a England applied house correction; loosely jail prison.” Webster’s New Inter national Another is: Dictionary. example May, complaint Mary “21 1745. Granted a warrant on the Draper Easterton, upon by Plank, assault her Elizabeth Mary Draper, junior Draper, Mary Draper Sarah and Elizabeth Jarvis, Easterton; upon hearing complaint all of the said their correction, mittimus made to but the house of afterwards were by parties, paying charges.” released of the consent A “mittimus” in criminal “awas English practice precept from a court directed writing, to the issuing magistrate, sheriff or other officer him to commanding to the convey prison named person therein, and to the jailer, command him to receive and ing safely such keep until he person should be delivered due course of law.” Black’s Law 1153. Dictionary
Occasionally we find instances where the justice of the held the peace defendant for the quarter session: July, complaint “6 1745. Granted a warrant at of Richard Lavington, butcher, against Kyle Smith of Market John of Easter- ton, labourer, assaulting him in the execution of his office tithingman. I bound him over to the Quarter at Marl- Session borough and indicted.” July, complaint “29 1746. Granted a warrant on the of Thomas against same, Hutchins of Earl Stoke .Edmund Matthews labourer, assault; upon appearing for an his I bound him over Marlborough.” Quarter to the Sessions at Nov., complaint “17 1746. Granted a warrant at of Jane (wife Bulkington, yeoman) against Naish of James Naish of her assaulting, beating said husband James Naish on oath for abuseing wife, any giveing Jane Naish his said him sort of provocation, for which she desired the said James Naish to find peace, any malice, hatred, sureties of the not out of evil will or revenge, purely preservation person danger but for the of her harm; upon hearing thereof the said James Naish was bound appear with sureties at the next General Quarter Sessions premisses answer aforesaid.” Nor were these the only methods used justice of of assault and disposing complaints battery. In addition to dismissals where the evidence did not warrant action, judicial we find that cases of assault were disposed defendant’s “promise of his behavior in the good future,” to receive “promising his wife her again using future,” better for the “a into bond entering penalty one hundred never pounds, to molest John and his Biggs more,” wife “upon appearing parties they entered into bonds each side never to offend each other of one hundred penalty “the pounds,” defendant hand note of not to strike the giving complainant any more.” the justice Sometimes civil adjudged damages waived criminal prosecution:
250 March, complaint “4 a warrant the Granted 1745/6. against Henry Esqr. parish Franklyn Robert Worton assaulting beating upon Lavington, Market for and him Jones of great, King’s highway. Upon hearing abuse the it I his so found adjudged Franklyn pounds pay four I Mr. said Jones the shillings charges prosecution, did which he accord- all ingly, Franklyn forgave Mr. him.” and assaults assaults handling English practice the more grievous and batteries the cases to simplest from Hunt was codified ones illustrated of Justice by diary for dealing the first time in Geo. c. (1828), 27 authorized Section various offenses against person. justices peace before two summary proceedings fine not exceed of a penalty common assaults and batteries on on default of five two imprisonment months ing pounds justice payment. such Section gave' if “from other controversy not to right adjudicate him to “a fit subject appeared circumstance” There can be no doubt but by indictment.” prosecution what assaults and was meant “common batteries” by batteries,” we assaults and in this State have called “simple set misdemeanors forth as from' distinguished high met the :90-1, 2, 3, N. 2A England problem S. supra. J. and batteries of the broad of assaults and assaults range of the peace to the determination of justice leaving one without indictment summary whether the suit should be he should to the and trial or one that submit by jury grand found, and if were to be for indictment indictment jury met same Jersey New has jury. followed trial by the acts conduct treating disorderly basic problem by have the crime of assault which heretofore would constituted and trial for indictment battery, leaving assault and battery comprehended kinds of assault special to, referred just kinds of misdemeanors high within three in the cases treated as disorderly the defendant thus sparing aof criminal record and from the disgrace conduct personal which all the social and business flow disadvantages his conviction, the loss of including criminal he then N. J. S. occupied, hold office any public continue to
251 :135-9, 2A or to for a civil R. qualify position, service S. 11:9—6, 11:23-2, R. S. or the to a juror, serve as N. event, J. 2A :69—1. S. In any there can be no doubt of the power justice of the of the at common law before 1776 punish or common assaults and assaults and simple batteries summarily or indictment and presentment without trial by jury. Summary Especially
II. The Proceedings, Growth or Disorderly Under Persons Act Broad of though jurisdiction justice of the peace was at law common before and both after it never theless was no more of extensive than that his modern successor, the as it does the municipal magistrate, embracing many laws, violations of the motor vehicle traffic fish and laws, game of ordinances of each municipality, law, disorderly of 1 and 4 of persons chapters S., Poor Law 9 (R. 44), Title 6 and 17 chapters of of Title children, of article relating chapter of Title 30 to institutions relating “Offenses of agencies, lesser than or a misdemeanor grade degree or to which no indictment J. N. 2A grand jury required,” 8. :8-21. Each of these sources the municipal juris magistrate’s diction relates to offenses far too numerous to catalog. Persons
Disorderly alone, Act with which we are especially concerned, N. sections, J. S. 2A:170-1 et of 96 consists seq., many of which deal with offenses far more in nature serious than simple assault and battery. The at the magnitude local level over jurisdiction disorderly can best persons comprehended by the titles of the offenses enumerating pro scribed act, successive sections of the but before listing them mind, two observations both of which are spring to our pertinent present how could inquiry:. (1) our courts criminal general jurisdiction possibly function effectively in our urban complicated civilization if today had they exclusive jurisdiction over all of these offenses either with or without a how jury; these (2) many offenses smack elements of them are or involve crimes common-law wide crimes? The instances of more general
specialized from its table of contents: the act appears sweep PERSONS I. CERTAIN DISORDERLY “ARTICLE ENUMERATED. Sec. give good account themselves Persons unable A: 170-1. engaged illegal and in stale for unlawful occupation, consorting with criminals. purpose ; burglars thieves, pickpockets. Common 2A 170-2. burglar Carrying with intent break *15 or tools to weapons 2A 170-3. buildings or or near assault; presence and enter or steal. other with intent to places beggars : and idlers. Paupers, 2A 170-4. soliciting acts. unlawful sexual or indecent Prostitution; : 2A 170-5. having sexual intercourse. person 2A 170-0. Diseased 2A 170-7. Fortune tellers. drugs. 2A Use of narcotic 170-8. Giving alarm. 2A :170-9. false , Spitting. : 2A 3.70-3.0 , to remain. shelter; permit refusal to admit or 2A : Ail-raid 170-11 2A 170-12. Alien not to act as detective. Driving 170-13, intoxicated. horse while 2A 170-14, livery vehicles hired from stables. animals or 2A Abuse of conducting performing advertising, or Marathons, etc., 2A 170-15 in; exceptions. treating 170-36, fur, hatters’ etc. Mercury; use 2A possessing 170-17, missiles, 2A ammunition, explosive Persons inspection. etc., police; presentation to fuses, notify numbers 2A 170-18. Possession lottery slips. or representing 170-19, be members of armed themselves to 2A Persons wearing insignia to belief induce auxiliaries; forces or therein. membership of former organizations; Soliciting funds law enforcement 2A .-170-20. offense. venue of injuring Removing 170-21, or notices advertisements. or 2A 170-22, manufactories. of chemical A Deposit of refuse neglect matter. bury offensive 2A 170-23. Refusal or dying contagious 170-24, diseases. or animals 2A Burial poultry 170-25, diseases; infection certain Exposure of others 2A exceptions. grow allowing growing one’s on or Marihuana; 2A170-25.: land. BATTERY; AND PUBLIC xVSSAULT ARTICLE 2. DISTURBANCES. battery. Assault; assault 2A:170-26. Fighting. 2A:170-27. Sec. Disturbing assemblies. 2A :170-28. per- interfering molesting language; or Offensive 2A:170-29. sons. Loitering creating under a disturbance while or 2A:170-30. liquor. intoxicating influence TRESPASSING; REAL AND TO INJURY 3. ARTICLE PROPERTY. PERSONAL penalty. Trespassing; 2A:170-31. 2A against trespassing. Removing defacing posted notices :170-32. junk private property. dumping of Unlawful Trespassing 2A:170-33. hounds. with horses and 2A :170-34. removing Cutting, destroying land timber on trees or 2A:170-35. consent; exception. another without owner’s of Malicious injury property. 2A:170-36. Malicious mischief. 2A:170-37. taking of motor vehicle. 2A:170-38. Unlawful Poisoning domestic animals. 2A:170-39. Temporary taking of horses. 2A :170 :40. operas. plays and use of 2A:170-41. Unauthorized AND MISREPRESENTATIONS. 4. FRAUDS ARTICLE 2A:17(M:2. misleading advertisements. Untrue municipality, state, thing Obtaining valuable 2A:170-43. organization false state- or association charitable ment. misrepresentation. hospital Obtaining free treatment 2A:170-44. defraud; Renting evidence intent to vehicle with motor 2A :170-45. of intent. mileage registering Damaging in- rental motor vehicle 2A :170-46. ; intent to defraud. evidence of strument Defrauding *16 hospital; keeper' evi- or or restaurant hotel 2A: 170-47. intent. dence of houses, lodging concerning hotels or 2A False statements :170-48. fraudulently operating- Obtaining property or service 2A :170-49. receptacles.- coin wagons Hiring deceit. horses or 2A:170-50. MINORS. ARTICLE 5. cigarette papers cigarettes, minors. or tobacco 2A:170-51. Sale Permitting minors theaters. 2A:170-52. Permitting- in dance halls. minors 2A :170-53. permitting pool Permitting them to rooms or minors 2A:170-54. gamble therein. TO PUBLIC RELATING ACTS 6. DISORDERLY ARTICLE ROADS, CONVEYANCES, UTILITIES, AND PROPERTY. PUBLIC OTHER conveyance. public pay Failure to fare on 2A:170-55. 2A:170-56. pertaining 2A:170-S7. to section Definitions Sec. ¡170-57. Sale, etc., procurement, passage ticket, 2A reservation passenger or charge. accommodation above established tariff ¡170-58. Jumping 2A on or off trains. ¡170-59. Trespassing property; penalty. 2A railroad on trains or ¡170-00. objects Shooting throwing vehicles; placing 2A or ob- at jects tracks; taking on coal from cars or tracks. ¡170-61. running 2A Unauthorized interference with of trains. ¡170-62. Displaying light grade crossing; exceptions. 2A near red ¡170-63. Fraudulently wires, tapping gas 2A electric or or water pipes; presumptive or meters Tampering evidence. ¡170-64. meters; connecting pre- 2A or electric sumptive evidence. ¡170-65. trolley Smoking 2A in bus or car. ¡170-66. Using highway road; warning sig- 2A closed or removal of ; violating highway regulations. nals ¡170-67. Erecting signs highways 2A or encroachments without permission. ¡170-68. Defacing bridges public laying pipes 2A or wires or thereon itermission. ¡170-69. Destroying apparatus 2A of the United States volunteer lifesaving corps; interfering deceiving with or life- savers. SALES, PURCHASES, 7. ARTICLE AND UN- DISPLAYS AUTHORIZED ADVERTISEMENTS. ¡170-70. Selling price. 2A tickets in excess of established ¡170-71. Sale, etc., bearing 2A of containers name or trade-mark of lotion, nationally or advertised standard advertised face etc. ¡170-72. Preparation, sale, etc., lotions, etc., 2A of substitute face trade-marked, under name or in containers of advertised nationally products. or standard advertised ¡170-73. goods 2A Purchase or sale ‘not be sold.’ ¡170-74. paper 2A Sale or use of inflammable balloons. ¡170-75. Soliciting wreaths, 2A sale of funeral etc. ¡170-76. Uttering exposing medicines, instruments, 2A or to view etc., prevent conception procure or abortion. ¡170-77. placing 2A Unauthorized of circulars or advertisements newspapers periodicals. or ¡170-77. Sale, offering possession hypodermic 2A 1. sale drugs. for narcotic needle LAW; ARTICLE 8. PRACTICE OF ACTIONS SOLICITING CLAIMS; AND SIMULATING COURT PAPERS. ¡170-78. attorneys 2A Practice of law limited to licensed coun- selors law. at ¡170-79. persons appear attorney 2A Unlicensed or solicit *17 law business. Sec. ¡170-80. preparation 2A ‘Practice’ includes of wills and deeds. ¡170-81. practices excepted. 2A Business and ¡170-82. exceptions. 2A Further ¡170-83. persons soliciting contingent 2A Unlicensed suits on fee basis. ¡170-84. agencies upon Soliciting annual 2A business for collection basis, or for definite time. ¡170-85. Soliciting injuries 2A or commencement of actions negligence. ¡170-86. Papers process; simulating summons, complaint, 2A writ or printing circulating. or ¡170-87. process. Imitating 2A court ARTICLE 9. CORRUPTION OF EMPLOYEES. ¡170-88. Corruption agents, employees servants; corporate 2A or individually. agents punishable ¡170-89. ¡170-88. Immunity prosecution under 2A 2A section ¡170-90. Employment by 2A ‘kickback.’ ARTICLE 10. RENTALS OF AND PROPERTY INJURIES THERETO. ¡170-91. property 2A Bonus in connection with rental of under rent control. ¡170-92. against renting 2A Discrimination children in houses. ¡170-93. Injuries property by 2A to or destruction of tenant. ARTICLE 11. IDENTIFICATION CARDS AND BADGES. ¡170-94. badge employees visitors; 2A Identification card or or required. failure to surrender when ¡170-95. badge; surrendering 2A Finder of identification card or police required; to nearest station failure to do so. ¡170-96. badge’ 2A ‘Identification card’ and ‘identification defined.”
The Disorderly Persons Act has had a history, long though its 1799, for 65 It growth years slow. originated c. Paterson's Laws section thereof that: providing paupers, unlawfully city township, “All who shall return to the or they legally removed, from which were without a from the certificate city township, they belong, or to which or who shall leave then- places settlement; legal persons, go and all who shall about door, place streets, highways from door to or themselves in or passages, beg, charity, alms, crave or collect who shall lodge taverns, inns, houses, houses, wander abroad and beer out entertainment, houses, places, houses market barns or other open air, give good themselves, and not account of or who *18 charity, pretence abroad, beg under shall wander or solicit being' having soldiers, mariners, seafaring men, or of or been or loss, by Indians, fire, casualty, or or or other loss leave, war, pretence thing; persons, who or other or and all shall city, or township families maintained threaten to leave their to be thereto, who, county, chargeable or or or to become support, having property means for their subsistence or sufficient or engage employment, idle, honest or not shall provide live or not in some use, families; persons, and all who shall for themselves or pretend use, any physiognomy, palmistry, or to have skill in or or fortunes; crafty pretend science, like tell destinies or or who shall to runaway slaves, vagrants vagabonds, all and all or or servants prostitutes, drunkards, night walkers, common and common common disorderly adjudged persons.” shall be be deemed and to related Section dealt with a group problems: appre- disposed persons frequently ill “And Whereas divers are hended, upon implements breaking, having offensive them for house or houses, houses, stables, weapons, upon or are found in or ware houses, houses, houses, houses, smoke barns or out areas of coach houses, yards, gardens belonging intent to inclosed or theft, offences; although their commit misdemeanors or other justices thereby purposes manifested, power evil are good peace hath to demand of them sureties for their behavior carrying prevent their not been of sufficient effect to them enacted, any purposes execution; if Be it That evil into further any picklock person apprehended, having upon him shall or her be key, crow, jack, bit, implement, to break or with an intent other house, house, stable, barn, any dwelling coach into ware enter house; upon house, him her smoke or out or shall have or house any cutlass, bludgeon, weapon, pistol, hanger, other offensive or 'upon any person; with intent or shall be found or assault any house, stable, barn, house, dwelling house, coach smoke ware yard house, any garden, inclosed or or area house or out belonging or any any goods house, or with an to steal intent chattels, adjudged a dis- or she shall be deemed and to be then he orderly person.” be disorderly appre- Section 3 provided persons might a justice without a warrant conviction before hended and on the work house of the committed “to peace might be there at hard labor for any or to be eitjr, county, kept town 4 made calendar time not three months.” Section exceeding information, “on it the duty every justice peace dis- issue his warrant to apprehend any his view” to own person. Section two orderly any empowered justices any beggar, vagrant, vagabond, “to bind out the child of common drunkard, any prostitute, person, or common or of other who provide child, apprentice shall not for such as a servant or person, may willing child, age who to take such till twenty years, male, eighteen years, female, one aif if a or for a less time.” *19 This short act stood until unsupplemented unchanged 1864 the last 45 of through years the Constitution 1776 of and the first years of the It Constitution 1844. of important note that, to of provision notwithstanding Article XXII of the Constitution “that declaring of the inestimable of trial confirmed, shall remain right by jury as a of the part law of colony, forever,” this without repeal, the act makes no at all provision for trial by jury, but it was never successfully therefor. 1776 Consti- challenged tution had no provisions to relating presentment indict- ment, so that phase of our was not until problem present 1844. Without at this anticipating point constitutional under problems 1844, the Constitution we must also note of that the act of 1799 and the amended, numerous acts which supplemented revised it after 1864 all also were never in successfully challenged I, 7, of Article spite paragraphs 8 and of Constitution 1844, pertinent parts which read as follows: * * right by jury “7. The of trial shall remain inviolate *. prosecutions “8. In all criminal the accused have shall * * speedy public by impartial a *. person offense, “9. No shall be held to for a answer criminal presentment grand jury, except unless on the or indictment of a * * * * * by justices cognizable in cases In it is passing to be that these observed three provisions the 1844 Constitution are carried forward in the 1947 Constitution, quoted the first in supra, two identical words and the third in substance and In the third meaning. pro- vision, for the words “cases cognizable justices of the “in cases in the new there is substituted Constitution
peace” in indictment,” language now the change prosecuted the earlier Constitu the deletion from necessitated being VI, Art. see justices peace; tion of references any 7, of the Consti VII, 2, 7, 1, Sec. Art. Sec. par. par. 1844. tution of 1799, 3, supple- c. was effected by
The first L. change husbands or ment, 1864, runaway c. directed at families. From their fathers who neglected provide dis- succession of acts relating date follows long of the Consti- conduct, period orderly 103-year covering the Constitution years tution 1844 and the first five under 96 sections 1947, most of which are still reflected J. :170-1 Act, N. 2A of our Persons S. present Disorderly et seq. Persons provisions present Disorderly
None of Act for indictment or for trial jury, though provides acts, few earlier with L. c. commencing know of instance did for a trial Yet we no provide by jury. it has been that a successfully provision which contended Persons Act unconstitutional Disorderly *20 accord defendant the to an indictment for failure to the right Mills, v. by jury. contrary, or trial On Griffin 587, 590 Mr. N. J. L. Ct. Justice Van 1877), Syekel (Sup. the court stated: speaking justice try may concerning' cases act “That under dis- jury, jury orderly persons, right where no expressly given by act, practice too well settled the' why disturbed, appears this state to be and no reason the defendant may the act it.” not waive the to a trial where confers Moreover, many of offenses which have been long considered conduct and which have been con- disorderly tinued in the serious than act involve more conduct present does assault and In the simple or assault simple battery. field we such as find offenses malicious trespass injury mischief, malicious and unlawful propei^r, taking In motor vehicle. of frauds and category misrepresenta- tions are acts of fraud and deceit. many reprehensible it that such offenses Certainly cannot be contended seriously or the use assault simple of narcotic are as drugs petty and assault never suc simple Yet has been battery. cessfully of a the defendant accused violation argued of any one of these Act sections of the Persons Disorderly rvas entitled is true to indictment or trial And this by jury. regardless of fact that contained offenses many in the Disorderly Persons Act either rvere indictable crimes at common law or at least are akin to such indictable crimes. we hounds, Thus ñnd with horses and trespass cutting, or trees destroying or timber on lands of removing another, malicious injury malicious mischief property, listed as conduct, N. 2A disorderly J. S. :170-34 to All 37. of these law, were indictable crimes at Blades tone’s common Commentaries 243-247. Article 4 of the Persons Disorderly Act, N. J. 2A S. :170-42 to sets forth various kinds of fraud, which were indictable at crimes common law although at times could they also 4 Blade- prosecuted summarily, stone’s Commentaries 158. Then there are such offenses as or with intent carrying weapons tools an to break burglar enter, as well as in or near being present buildings places steal, other intent N. J. 2A :170-3. S. These are offenses out common-law indictable arising crimes of Then there is the larceny. offense of burglary thief common N. J. 2A being :170-2, S. as in burglar, Mills, case of 39 N. supra, J. involving Griffin three common thieves. theft and Clearly, were burglary at indictable crimes common law. These are mere illustra tions of the close between relationship disorderly conduct and crimes. This has existed relationship throughout Act, life the Disorderly yet Persons our courts have never held the defendant with such charged con disorderly duct was entitled to indictment or trial by jury. we review the
As growth Disorderly Persons Act under our three successive Constitutions, it is manifest be- *21 a shadow of a yond doubt that three clauses 1844 and the Constitution three corresponding clauses of the Constitution 1947 heretofore quoted exclude from their matter of L. merely subject not the limited operation related petty c. Paterson's Laws all of the supra, but Persons Disorderly that are now in incorporated offenses in and which N. J. :170-1 Act of S. 2A et today, seqsupra, books without one form another have stood the statute on that if there a hundred It is unthinkable challenge years. any phase were respect unconstitutional with anything or the method disorderly over jurisdiction persons growing that have trial or the mode it would not of punishment, test some one of the hundreds subjected judicial been in tried under one section of cases that have of thousands been the bench and another The truth plain act. from the very the bar and the alike have public recognized did before New State, this as common law beginning state, a summary not Jersey necessity became offenses, but also that list of over jurisdiction petty in to the expand response changing offenses must inevitably dis needs of the time and that some of these offenses of seen, have are more related to conduct, we' even orderly battery. crimes assault and Nor simple common-law than the defendant society; are the all with advantages spared a criminal with all of its polit being adjudged brand of ical, meted implications, punishment social business than that imposed him is less severe on corresponding out to de crimes, he is to a novo speedy given :3-6, 2A Rule Court, N. J. S. 2:11. the County Scope Constitutional Provisions III. of Our Tt-ie Relating Jury and Trial Indictment uniform however, solely acqui- have rely, We do not has escence, such though acquiescence even continued dis- charges than a to demonstrate century, more are in New to indictment subject Jersey conduct orderly decisions, and the though by jury. legislation and trial number, related are two fields few the decisions and of justice jurisdiction summary our con- successor, the confirm municipal magistrate, his clusions. *22 A. Jurisdiction the Vice and Summary Immorality Under ' This in “An Act for jurisdiction
Act. found its beginning 1704, in Acts Immorality” Allinson’s Suppressing passed 3, which of the over gave justice peace summary power any person drunkenness, or guilty swearing, cursing, , the Lord’s and “Breaking Day,” over house- any “public who shall keeper” suffer or in his any tippling drinking house on the Lord’s a fine of day, punishable by six shillings and costs. There is no mention in the act of trial by jury. It was 1798, not until however, that New Jersey enacted its version of the Blue Laws which had been from a prevalent much earlier date most of colonies, the American Encyclopedia the Social Sciences 600 in “An Act (1930), and suppressing vice immorality,” Paterson’s Laws 329. It prohibited in much detail a wide variety offenses such as work, diversions, selling goods on the travelling Sabbath; drunkenness; swearing; cursing; exhibiting plays shows, unless licensed three justices, and the like. The jurisdiction justice of the given was exer- peace cised in fashion summary indictment and the punishment authorized fine, was a specified in default of payment thereof the defendant was publicly placed stocks or in some instances committed to jail. The act was frequently as new supplemented developments in the mode of living 1854, e. required, g./L. 160, 398, c. p. prohibited transportation milk, freight, except on Sunday and authorized the justice stop detain canal boat or railroad car transporting freight on Sunday violation act; of the c. 1873, 563, L. 138, p. authorized each railroad to run one company train passenger each over its way roads on Sunday “for the accommodation State”; citizens this 1927, and L. c. 116, 218, p. (cid:127) prohibited operation barbershops Sunday. Many provisions of Vice and Immorality Act had long fallen disuse into and it was not reenacted in the revision of 2, Title 1951, 344, L. c. although certain provisions thereof carried forward, were J. 2A N. S. :171-1 to supra. Acts supra,
As in the case of the act of Allinson’s disorderly in the ease of the various acts relating A no for trial claim by jury. there was persons, provision Barclay, case, was raised one Johnson such to reverse 1837), J. Ct. which was brought N. 1 (Sup. *23 the act for for under sup a conviction profane swearing the To the that immorality. objection vice and pressing a trial by jury of the refused the defendant justice peace replied, succinctly: Hornblower Chief Justice justice justice, doing so, right. a “In was Convictions before state, practice long was in this before the Constitution in were twenty-second formed—by instrument, trial article of that part, by jury a law of this was ‘remain confirmed’ as to trial, colony; (then) a mode of it introduced as new but was continued, adopted, rather it was then in was or as all cases—it time, colony, England at that and in this and was not used in summary proceedings here, to in cases of either there resorted petty p. 6. offences.” convictions It until 1839 provided was not that Legislature demand a trial aby first time that a defendant might Act, Immorality of six for offense under the Vice and any the case where the of the tried except justice peace “upon 1839-40, 4. his view pamph. own L. personal knowledge,” 2:311-9, carried forward into R. S. but This provision of N. J. 2A. for the Except not into the revision S. present has made in Barclay, supra, vain Johnson argument any never that there is indictment or urged been summary justice trial before by jury proceedings Act either the Yice and or the Immorality under peace in the Persons Act absence of authoriza Disorderly statutory tion therefor. dielion Ordinances. If
B. Juris Under Summary and of violations disorderly conduct Yice varieties of offenses Act seem number created Immorality large, to passed pursuant power ordinances to by municipal granted statutes is beyond for no cataloguing, municipalities made them has ever been to collate on a statewide attempt and, indeed, it difficult locate all is often that have basis been of ordi- passed Violations given municipality. nances offenses a justice before relating petty cognizable or a differ peace municipal disorderly magistrate conduct offenses the Vice and Act Immorality against in the source of their authorization. All are tried summarily before the same local indictment or judge result, all jury, event of conviction, the same kind of limited punishment without branding defendant as a criminal. The same principles of constitu- tional law reference to indictment and trial by jury n are to all three classes of applicable cases.
There are three decisions under offenses petty relating municipal ordinances have a direct on our bearing State v. 32 N. J. In Zeigler, Ct. problem. (Sup. a case a violation 1867), ordinance involving regulating cellars and oyster beer Mr. Justice Elmer shops, by way dictum expressed doubt to the of a justice power impose penalty $16, exceeding being sum that could tried largest justice without a jury before the Constitution *24 1776: “Many municipal corporations of the charters of in this state by-laws by pro- authorize the enforcement of their and ordinances ceedings summary, questions aof nature more or less so that the argued by case, great so well general the counsel in this have become of importance. proper provisions construction of those constitution, require right by jury our which that the of trial inviolate, person shall remain and that no shall be held to answer offense, presentment for a criminal unless on the or indictment of grand jury, Speaking a deserves the most careful consideration. myself, strong pecuniary penalty I
for entertain whether doubts a exceeding being largest sixteen dollars—that the sum which could by justice jury be tried a a without before the constitution of 1776— by jury, can now be enforced otherwise than the verdict of a if by defendant; necessary demanded the but it is not to decide this question now, opinion expressed regard and no intended in Johnson, Barclay, to it. Since the decision in the case 1 Harr. v. legislature jury arising the authorized has trials in cases under immorality bastardy acts, probably the vice and expedient, and will find constitutionally necessary, privi- if not to allow the same lege ordinances, minutely in the enforcement of the numerous so every regulating boroughs.” business, incorporated in man’s our cities and
If his views above had been expressed accepted, right of trial by suit at law jury every more than involving $16 would have perforce been triable with the aid of a unless jury, waived defendant trial. The same jury line would argument have the jurisdiction restricted of the justice of to the peace kinds of precise controversies that were him before cognizable prior to Constitution of 1776, and would have effectually precluded expansion of the jurisdiction of the justice of which peace has char- conduct, acterized offenses disorderly vice and involving immorality, under proceedings ordinances. municipal Fortunately, the narrow view of the pro- constitutional visions forward him did put by not Whatever prevail. doubts were raised the dictum in the Zeigler case as to of Johnson authority v. Barclay, supra, so as to here, of the constitutional scope under review provisions were to rest put by Mr. Justice Depue’s opinion McGear v. 33 N. J. L. Woodruff, 213, 215-217 Ct. (Sup. 1868). That case by certiorari the brought up conviction of McGear under a municipal ordinance for providing imprisonment not seven or a fine not exceeding days $20. The exceeding of the defendant a below to trial by jury was denied and the of Johnson authority Barclay, supra, upheld the following language: is, mayor, “The next reason relied on before whom the brought, action was refused to issue a venire to summon a for cause, although applied the trial of the the defendant by jury; proceeded try complaint jury. In right. incorporating this he was The tenth section of the act city Bridgeton, 1864, p. (Acts 538) gives mayor justice city magistrate, cognizance try as a complaints city. urged for violations of the ordinances of the It was charter, authorizing then the tenth section of the the common provide council the enforcement of its ordinances im- prisonment, exceeding days, exceeding seven not fine *25 twenty dollars, providing by jury, without for trial is unconsti- tutional. language The of the seventh of section article first of the con- 1844, right jury by stitution inviolate,’ of that of a trial ‘the shall remain substantially twenty- is not different of that the 1776,
second article
the constitution
of
of
‘that
the inestimable
by
right
jury,
part
of trial
remain
the
shall
confirmed as
law
of
colony,
repeal,
By
of this
without
forever.’
section
'was not
that
it
by jury
intended to introduce trial
in cases where it
not
did
exist
before,
merely
preserve
but
it inviolate in cases
existed
where it
adoption
at
the time of the
of the constitution. Prior
1776,
to the
adoption
magistrates
of the constitution of
convictions before
petty
offences,
police regulations
for
criminal
and violations of
frequent occurrence,
recognized
part
of
were
and were
England.
adoption
constitution,
of
laws
Since the
of that
adoption
prior
11344,
practice
to the
of the constitution of
that
was
pursued
objection.
intended, by
state
It
this
without
was not
the
1844,
of
seventh section
the
act of
of
first
the constitution
to intro
jury
by
by
by
practice
long
trial
duce
cases where
law and
these
previously
Zeigler,
C.,
the
did not
exist.
In State v.
S.
June
Term,
262],
expressed
[32
N. J. L.
Mr.
Elmer
Justice
a
pecuniary penalty exceeding
dollars,
a
doubt whether
being
sixteen
that
justice
largest
by a
the
sum which could be tried
a'
without
jury,
enforced,
before the constitution of
can now be
other
by
by
jury,
if
than
the verdict of a
wise
demanded
the defendant.
Barclay,
In Johnson v.
1 Harr.
court held in
this
a case where
'
conviction,
suppression
a
under
act for
and im
the
the
vice
morality
penalties
dollars,
was had for
the sum of
above
Sixteen
by jury.
the
a
that
defendant was not entitled to
trial
And that
twenty-second
force,
the
extend to
article
the constitution then in
did not
magistrates
proceedings
Indeed,
before
under that act.
summary
powers
police
constantly
extensive and
are
exercised in
regression
the
the
all
states
Union
breaches
petty offences,
supposed
and these
are not
statutes
to conflict
securing
provisions
by
zoith the constitutional
to the
citizen a
jury. Sedg.
548;
Prac.,
Stat. Constr.
see also 1
Cr.
Bish.
note 7
provision
This
and eases
cited.
constitutional
§
there
does
by-laws
prevent
municipal corpora
not
the enforcement
of a
509;
Augusta,
Floyd
v.
tion
trial. Williams
Ga.
Eatontown,
v.
(Sup. 1874) not importance for its approval v. Woodruff, of McGear supra, its statement of cogent the sound rests, on which that grounds decision but also for its relation between analysis an offense against ordinance and a municipal misdemeanor State, against a distinction which becomes important in the consideration cases which we shall next have deal: to being strictly city ‘'The ordinances within the terms of the charter, judgment ground stated, if we reverse the below on the necessarily charter, particular we must hold that in the under consideration, do, because, is void. This we are asked to alleged, provision constitution, it inis violation of that of our state right which that ordains of trial remain inviolate. shall Woodruff, It was held in the case McGear v. [33 Vroom 213], provision that the constitutional N. J. L. above referred substantially upon subject was in the Constitution of tend the viously the same as that the same contained and that neither was intended to ex- right by jury pre- of trial to cases to it which did case, Byers attach. In that in as well as the case clearly Commonwealth, prior 42 Pa. it is shown that legality magistrates petty of convictions before offences and police regulations by jury, for violations of without unquestioned. case, Strong, delivering In the latter Justice opinion court, says: right, was, ‘It is the old whatever it enjoyed previously that we that must remain inviolate alike in its enjoyment What, then, right in mode of its extent. was this perpetuated? inquii’e thus cherished and thus We not now after in the mode present which such trial was conducted. Our at business right by jury to ascertain far how to a trial ex- applicable. right— what tended—to controversies it was It was a upon usage—and the title to which was founded its measure is sought usage prevailed therefore to which time at England any usage, when it was asserted. But never in was there and, consequently, any right subject every was there litigated question jury. of fact should be submitted to a In all large cognizable equity, which class of cases are courts of right jury, right there never was of trial nor did the extend many proceedings. Summary other civil and criminal convic- always petty against sustained, tions for offences statutes were they were never suffered to be in conflict with the common by jury. law to a trial The ancient as well as the modern large, authorizing British such against at full of statutes are acts Parliament convictions, referring passed to those which have been upon public worship non-attendance the established church, against allegiance, against pro- to take oaths of refusal embezzlement, provided faneness and all of which for conviction and punishment jury, may of offenders without the intervention of a vagrant proceedings suffice to notice the acts and the under them.’ Bridgeton, The charter of which was under consideration Woodruff, case of McGear v. provide authorized the common council *27 by imprisonment for the enforcement of its ordinances not exceeding days, exceeding $20, seven or a fine not made the and cognizable justice peace mayor offense city; before a of the or of the authority conferred, and the thus was held to be within the power legislature. distinguish constitutional I of the cannot that case, principle, present, may upon in from the unless it the be ground urged, that the case before us is one of an conviction for selling intoxicating by offence of drinks less measure than one quart license, purpose obtained, for that first had and by general law, not, which is an offence indictable state and city as in ordinance, Woodruff, the case of by doing for violation of a McGear by an act not indictable the I state law. do not think consideration, that this feature of the case now it under takes adjudicated principle without the in the case of McGear v. Wood harmony I am aware that there is a want in the laws ruff. power relating pality legislature delegate to the of the to a munici right by law, punish against an the as offence the laws municipality, which, by state, an law the act the of the is a crime argued, force, punish or misdemeanor. It with some that such guaranty ment is in violation not of the constitutional by jury, provisions but of those other of the constitution person which ordain that no offence, shall be held to answer for a criminal presentment grand jury; or of a on the indictment unless that, prosecutions, and in criminal the accused shall have the all speedy by impartial jury. public trial an It could to a and many purpose refer to and comment on the no useful serve to. question presented adjudged in which the now to us is dis cases Judge Cooley, cussed. in his Treatise Limita Constitutional may tions, p. doctrine that the same act consti advances the municipal corpora offence, against and tute an both the state the punish tion, may both without violation of constitu and that abundantly supported, prin principle; in tional and I think he is authority. so, urged ciple arguments If in well this be as as by defendant, position counsel of lose their of the taken the behalf force. Dillon, test, Judge I as in his work on do not think hold, Municipal Corporations, § inclines to is whether the act by by prohibited in and ordinance is embraced made indictable may state, rather it not be criminal of the but whether code dignity state, only against and but also not act peace, good order, safety of, dangerous to the subversive prohibited may municipality. If the act have this health of the double injurious consequences juris aspect prove in its to both and why may prohibited punished dictions, it be I see do not municipal against state law. The offence well ordinance as the state, against municipality one a different from that though proceed In case both from the same act. offences 306], People Illinois, [14 14 How. L. Ed. Moore v. State may against a act an offence state was held that the same be it appears against In it that one the United States. that case Illinois, for under the statute of Eels was indicted unlawfully convicted owing negro slave, secreting to a a certain service (he brought Missouri. A writ of error was state of citizen legality Supreme and the to the Court of the United States questioned, ground that statute of Illinois on the conviction void, subjected punishment offender to a double because it (cid:127) argument urged was, single inasmuch as offence. court was defendant stood indicted state for which the act Congress, proceedings punishable if act of for which he was one stand, punishment were allowed to double under both statutes fact assumed in the denied both the inflicted. The would be proposition court sought from to be drawn it. Justice and the inference admitting court, says: delivering opinion Grier, ‘But may plaintiff an action under the act be liable to error harboring preventing Congress the owner same act of slave, retaking not follow that he would be twice his does offence, legal signification, punished An offence. its for the same (he may compelled transgresoiou A man of a law. means injured party, damages reparation and be liable to the make *28 consequence public peace punishment breach of the in for a also to said, parlance, act; may twice be in common to be and of the same punished Every (cid:127) of States offence. citizen the United for the same territory. may He be said to owe of a slate or also a citizen may punishment sovereigns, allegiance and be liable to two may act laws of The same be offence an infraction of the either. transgression the laws of views of the learned of both.’ These clearly expressed, judge, to me to embrace and seem settle so subject matter under consideration. whole us, summarily prose has been in the case The defendant before convicted, against state, a criminal not for offence cuted city, against in its violation of for an offence committed but legal adjudicated principles police regulations. same The internal Woodruff, Byers Commonwealth, v. v. in case of McGear (he to, judgment sustain under underlie and review. above referred many offences, undoubtedly prohibition and criminal are There punishment constitutionally delegated by which, cannot of cognizable by legislature municipality as offences it under the a to police, retailing intoxicating powers I do not think the of but tippling houses, drinks, keeping is included within that or the jury.” category. not a below was entitled to The defendant 147-151) (at. never cases, which have been establish questioned, These two of local over summary jurisdiction of the judges the scope ordinances, and all that is said in offenses covered petty
269 to disorderly persons these is equally applicable cases act. immorality under the vice and offenses the Right Anderson C. The Doctrine State v. Anderson, v. Proceedings. State Summary Indictment attention N. J. L. Ct. 1878), (Sup. requires particular that the unusual scheme statutory only becausé the reliance with, placed had deal but because court us analysis—in it seems to decision—improperly on the understood cases, for the Anderson case cannot be subsequent State, Meyer read in the but must be light alone 42 N. J. L. 145 (E. J. L. Ct. affirmed 1879), (Sup. N. on it. & A. which followed 1880), closely case, Rev. in this Anderson under review The statute earlier statute: the clauses provided (1877) spirits “making a sell ardent without indictable offense to it an apply license, committed thereafter to offences shall not state, incorporated of which cities of this the ordinances of the spiritous punishment provide the unlicensed sale for the shall Sunda'y. punishment liquors, of the same on and for enacts, that where the ordinances the same statute second section of keeping punishment provide offense of for the of such cities prosecute, disorderly house, be lawful to thereafter shall not keeping disorderly by indictment, any person house in accused alleged city, of the continuous offence consists such where provisions frequent of the laws above mentioned violation persons.” (at unqualified spirits inhibiting of ardent the sale 225) court, one for the There were two indictments before a license and the other for ardent spirits sale of ardent were spirits wherein house disorderly keeping thus Chief Justice Beasley to law. contrary sold habitually for adjudication: the issues stated case, the indictments in this “As it is manifest the two *29 being spirits, other unlicensed sale of ardent and the one for for the offence, contravene, perfect repetitions with direct- of the same statute, only questions
ness, prohibitions of last cited the the this force; and, such act is in Second. be solved are—First. Whether to Whether it constitutional.” the first he the act was effect On concluded question the he then constitutionality to consider proceeded act of the indictments. As to the first indictment the court held: selling liquor purely “The offence of without a is a license statu-
tory Independently prohibition by legislature, offence. of a illegal, law-maker, such a sale is neither immoral nor and the therefore, put may thought can it under such control as be best. being offence, pun- Not in its nature an indictable can be made penalty, (at 228) ishable a without indictment.” On the indictment, other however, the Chief ruled Justice otherwise: keeping disorderly “The of a house is a crime at com- indictable law, punishable by imprison- mon this state it is fine and prison. Therefore, ment in the state it is clear that if this offence can, purpose crimination, punishment, put for trial and municipal authorities, into the hands of these it follows that all grade bo, manner, common law offences of the same can in like so deposited. This, think, arrangement I cannot be conceded. an Such would, very plain way, infringe important provision in a I., constitution of this state. Article section of that instrument person declares that offence, except ‘No shall be held to answer for a criminal presentment grand jury, unless on the or indictment of a impeachment, cognizable justices in cases of or in cases peace,’ purpose prevent etc. The of this clause was to bringing reproach being arraigned citizen under public, unless, by previous crime before the examination private, grand inquest taken in had certified that there existed * * * ground making charge. reputa- some solid tion of body. The every put single specified man was thus under the care of a (he language very compre- constitutional clause is hensive, specified exceptions conclusively and the show it was intended to cover the residue of the entire field of criminal accusa- presence prohibition In per- tion. of such how then is it put city court, charged missible to a man on trial before a offence, preliminary
this common law sanction of a jury? grand punishment fine, If it be said the the answer is, restraining question nothing clause has to do with the object trial, being result or effect of the of its to save from shame being brought court, except before the bar of a criminal inquisition. clearly authorized after an method antecedent I am opinion person that a trial of a for this offence before municipal utterly (at 227) (Em- court would be an act void.” phasis supplied) In contradistinction to the McGear and Howe cases, supra, which involved no of statutes intermingling ordinances, *30 the court was here confronted with a novel statutory attempt to the extent of the delegate of a punishment crime, which is an offense State, against to each municipality see fit might thereon. The offense legislate remained crime, but the punishment was to be ordi- regulated by nance—a kind of unique local as to the extent option which the crime would be punished tolerated. defendant, committed State, a crime would having against have a criminal record, even his was punishment though fixed by device, ordinance. Such a if extended to statutory crimes, all would have the end enforcement of spelt the criminal law of the State as a state and would system have resulted in the substitution therefor of prevailing mores of each One can well understand Chief community. Justice Beasley’s to such a novel and destructive repugnance method of criminal law enforcement. It important observe that throughout his he dealt with opinion offenses before him crimes, fact, as were they as disorderly conduct or an under offense Vice and Act or a Immorality violation of a ordinance municipal setting up some summary jurisdiction petty over offense. Nowhere in his opinion did he treat offenses or the petty constitutional thereof, to the trial requirements but relating he dealt with the him as a solely problem before crime.
The Anderson case did not the Court of Errors and togo case, but a Appeals, State, similar 41 N. J. Meyer Ct. came (Sup. 1879), before Court next Supreme There the defendant had year. been convicted of a dis keeping house wherein orderly sold liquor habitually Sundays on under the same scheme as in the Anderson legislative case. There was also ordinance in Newark awith prohibiting, the sale of on After penalty, liquor Sunday. referring case, his decision the Anderson Chief Justice Beasley sustained the conviction defendant and the validity of the ordinance for the crime for which fixing penalty the defendant had been indicted aon rationale entirely different from that set forth in the Anderson case: subject present presented aspect. “In the instance in a this new is, city The contention at this time ordinance forbidding liquor Sunday, superseded Newark provisions the sale of has *31 * * * prohibitive law of the state of such sale. certainly indisputable that, by law, It is force of the wherever municipal provides punishment sale, a the Sunday, against ordinance for the on liquors specified, punishment of of the kind the denounced by general applicable. act law is not such the For the act making single Sunday, of only forbidden sale the seller is amenable is, city; offence, dispunish- the law of he under the such an * * * is, law able under the a of the state. contention The that prohibited nothing more, worse, such is nor series of acts than multiplied municipal ordinance, of a violations that such continued, violations, however cannot numerous become an in- dictable at offence common law. argument assumj)tion, But is an . this founded on the truth of spirituous liquor which cannot be conceded. This traffic in sales of Sunday obviously something disregard on a is more than the of a general statutory It local ordinance. prohibits is the law of state the that everywhere, everywhere provides it is this law it that punishment. legislature The has
for its not fit to leave it seen to city question practice the be imperatively of Newark to decide whether the in shall permitted corporate bounds, or forbidden its within but it has required city shall be in it forbidden alike this large. statutory respect within state at The as is this: the situation in this generally punishable in the state the act offence makes the by indictment; punishment crime, in same cities the follows the prescribes pun- in in an unless those cases which ordinance the Thus, general law, provision ishment. traffic the is made that this penal city Newark; people bo of shall the the of dispense locality they penal consequence, for all cannot with such great penalty By can do is adjustment declare how such to shall be. this prohibits traffic, the state the the local ordinance fixes consequently, illegal punishment; the the extent when traffic of practiced, penalty is the state lato is violated and the the ordi- of nance is incurred. When rule of cessation universal of this Sundays altogether legislation, traffic on superficial is is established regards view of the matter that an habitual violation policy light infringement police; of such for infringed, a mere local policy legislative large such traffic the at of the state is becomes, general upon principles, and such series of acts 7-8) (at (Emphasis supplied) an indictable offence.” Here both state statute and the municipal ordinance local punishment as to a crime permitting option íor stand. On to the Court of Errors and 42 N. J. appeal Appeals, 145, Mr. Yan (1880), Syckel, Justice for a speaking court, said: unanimous “* * * that, pro- This defence assumes in those cities where exist, liquors intoxicating hibitive ordinances sale not does plainly contravene the state law. Such a construction is con- spirit general both flict with the letter law.' everywhere; It forbids the unlicensed sale it denounces the
penalty upon offender, except shall which fall in those localities punishment provided. where substituted shall be It is left municipality selling such determine whether be a punishable offence; legislature be, has declared that it should quantum punishment only being city to the ordinance. left city lawful, The Newark could not make the unlicensed sale dispense penal consequences, so is the because there reaching every offender, law state out its arm to strike unless city ordinance, punish Upon repeal shall otherwise him. such penalty operate city; no the legislation law at the state would once be needed law is manda- would to revive it. The state tory, and, sanctions, any locality escape before its it makes can necessity punishment provided. it a that some other form of shall Sunday merely infringement traffic therefore not state, statutory policy doing which but it is the an act * *” * says being punished. the state law shall not be done without *32 (Emphasis supplied) It that of the Court significant nowhere the opinion of Errors case and in the Anderson Appeals is the decision mentioned, the Attorney- it was though much relied General in 42 here brief, his N. L. are not J. 154. We concerned common-law crimes, with the of statutes interplay and ordinances with cases. Meyer dealt Anderson and We are Chief that Anderson case simply emphasizing Justice Beasley was with the defendant’s conviction dealing crime, demonstrates, a as his entire opinion emphatically and not with a offense under Persons Disorderly petty Act, the Vice and ordinance. Act or a Immorality municipal It would dis- be unreasonable to assume that a of his jurist tinction had overlooked the then v. recent cases McGear N. Woodruff, supra, 33 J. L. and Howe v. Treasurer of N. L. City Plainfield, supra, J. with dealing constitutional over aspects summary jurisdiction petty offenses, Persons Act or the scope Disorderly Yice Act or the thereunder with Immorality practice event, reference to offenses. In in the petty any he case in the Meyer departed his decision Anderson Meyer in the case case, and the Court of Errors Appeals silentio, sub in the Anderson case over his decision passed decided although, it had been although recently Attorney- seen, have it cited to the Court we Nevertheless, misunderstanding either General. through Chief Justice’s to the lustre of the case or due Meyer case the Anderson has the broad language reputation, to the opinions cited without reference been frequently which was a case, an offense Meyer in the as preventing treated in summary pro- crime from being common-law such proceedings the numerous examples ceeding, despite Act, Immorality Persons Vice Disorderly under the It cited herein. therefore Act, and ordinances municipal to trace Ander- for us the doctrine of necessary becomes son case later decisions. through to those decisions in which chiefly our attention
Confining resort, cited the court of last we the Anderson case was in which the reference mere dictum. find several cases J. L. Ct. Terry, 1905), N. 375 (Sup. Thus State A. 1906), 73 N. J. & involved a situation (E. affirmed L. cases, Meyer that the Anderson and that similar to except case there was no ordinance: Terry applicable ordinances introduced in evidence deals “Neither were disorderly house, keeping a nor has the at all with offense of punishment providing when consists effect of offense intoxicating liquor frequent sales of in the continuous or (at 379) license.” Green, Ct. 1921), Likewise in 96 N. J. 434 (Sup. State v. ordinance which the defendant was violating charged *33 held that “The houses. The court prohibited disorderly L. revised charter of the of Princeton (Pamph. borough no 1873, the council p. 567) borough express power gave any enact an Neither do we find statute such ordinance. Here, too, P. such 435. power municipality.” giving must deemed of the Anderson case dictum. the citation 6 479 (1951), In Montclair v. N. J. Stanoyevich, Again or trial by did not to indictment defendant claim and in Board Health court municipal of of
275 R., 10 J. 294 Weehawken New York Central R. N. v. Tp. acts did not prohibit the ordinance (1952), question 305- law nuisance at common constituting public (pp. case and the 306), so that the reference to the Anderson decisions it is in each instance. dictum following In Institutions Richardson v. Board Control State of 99 690 Ct. 1923),
& 98 N. J. L. Agencies, (Sup. L. was N. J. 516 & A. the defendant convicted 1924), (E. 1915, L. children,” under “An Act the welfare of concerning 2, 441, c. sec. in a p. summary charging proceeding The court defendant with assault and on a child. battery assault and described the defendant’s as most brutal act “a the statute It would not come within the battery.” scope review, assaults and here under limited as it is to simple 2A :90-1 batteries, assaults and under N. J. S. but simple misdemeanor. assault battery high atrocious making 97 J. L. was a 1921), Katz v. N. & A. Eldredge, (E. case Enforcement with Prohibition dealing validity Ness Act known as Van p. 171), commonly (L. inquiry Act. The are not to our opinions helpful present because there was not a court majority voting Millville, 3 N. J. one of them. v. any Everingham City of Misc. Ct. is a curiam decision 1925), per (Sup. Court,
former affirmed curiam on Supreme per opinion defend below, 1925). 101 N. J. & A. There the (E. ant ordinance charged violating providing of a from the habitual summary abatement nuisance arising and unlawful sale of The liquors. power intoxicating a nuisance at common law never vested in a justice abate was allowed after indictment for abatement peace, Co., & Essex Railroad and conviction. State v. Morris 1852), N. J. L. at 370 Ct. where Chief Justice (Sup. said, “The of an indictment for a principal object Green abated; is to compel part nuisance to be regularly conviction is that the nuisance be upon judgment abated”; but see and Council Mayor Borough Alpine J. 42 here Breivster, 7 N. act under review (1951). not, course, involve abatement in form. does
276 Anderson the doctrine of on analysis
Accordingly, Meyer case, the decisions when read in the light by accepted it was not case, reveals the fact that examination our the Court of Errors and but Appeals, it to follow resort purporting the cases in the court of last it are dicta or demonstrates either that references that are different that these cases dealt with facts case that in the Anderson instant case. There 'is nothing under on the century practice throws doubt slightest and vice the act Act, concerning Disorderly Persons providing or under ordinances immorality, municipal Johnson v. trial of offenses as summary petty approved v. 33 1, Woodruf, J. McGear L. Barclay, supra, N. Plainfield, 213, City L. Howe v. Treasurer N. J. supra, 587, Mills, N. J. L. v. 37 N. J. L. supra, Griffin Gratz, 86 that in v. It is to observe State supra. interesting reserved decision 1914), N. J. L. 483 Ct. the court (Sup. had been whether “if the ordinance on question it would have assault and battery, directed to the offense of that “the has been con constitutional,” point been saying Plainfield, 37 in relation to other offenses v. (Howe sidered v. 145; Anderson, 40 N. L. Meyer N. J. L. State v. J. 145; J. L. v. State, 6; Zeigler, 41 N. J. L. 42 N. State 375; L. 73 N. J. L. 307; L. 72 N. J. Terry, N. J. State v. Rollins, but, 554; v. N. J. City 254); Atlantic us, we no at is not before express the case bar it.” opinion Jury. D. The to Trial We have seen that Right Griffin Mills, 39 N. J. L. is the case our supra,
v. leading under jury with the to trial right State dealing and that it held that no such Persons Act Disorderly right statute. This case is con exists unless expressly given decisions on the trial by with other right jury, sonant time courts have held for our again is not absolute immutable. Thus in trial by L. 424 : 72 N. Ct. Eakeley, (Sup. 1905) J. Humphrey language respect “The of that instrument this mode inviolate, unalterable; trial is that it shall remain not that it shall be
27? *35 legislative so that the limits are not as action so circumscribed power jurisdiction preclude of some over and exercise ** procedure 425) (at of inferior courts meaning hurt, harm, “The essential ‘inviolate’ is freedom defilement, profanation connoting partial or such other idea destruc- impairment, imports tion or substantial and that it in im- no sense munity regulation.” (at 426) from all Likewise, a juvenile offender be tried in a may juvenile court, even the offense is an one at though indictable common law, Goldberg, State v. 124 N. J. L. 272 Ct. 1940), (Sup. affirmed curiam 125 N. J. 501 per 1940), & A. (E. wherein Mr. Justice Case stated court: demanding pro- “The defendant is here in his own behalf the prosecutor pleas contends, cedure which the somewhat anomalously, deprivation ais of the defendant’s constitutional safe- guards. may Whatever be about said elimination of indictment import, trial in and argument crimes of heinous think we that such an pertinent presently is not to the offenses with we which are carrying weapons concerned. The of concealed an offense by statutory may, therefore, adult, enactment. It even to an punishable by penalty made a without indictment. State Ander- son, J. L. 224. The offense of N. assault intent to kill is misdemeanor, a misdemeanor under our statute and awas not a felony, at common law. Even at common law it was not such an as, species punishment, offense either in or in character re- quired presence of the accused when the verdict was rendered.” (at 270) See also State v. 137 N. Smigelski, J. L. Ct. (Sup. 1948), affirmed 1 J. 31 N. (1948).
Under the Motor Vehicle Act a driver be convicted of may drunken in a summary driving before the proceeding magis- and trate receive a maximum sentence of six months. This section of the statute has been held valid when attacked as a of his depriving person constitutional to indictment right and trial by jury, State v. 91 N. J. Rodgers, L. 212 (E. & A. 1917). reference has been made
While for the sake of completeness I, to Article paragraph Constitution I, Article 10 of the Constitution “In paragraph all criminal accused shall prosecutions have to a sections trial these speedy public impartial jury,” sum- a cannot affect the statute here under review because a mary before proceeding municipal magistrate criminal prosecution.
IV. had jurisdiction the peace To recapitulate, justices at assaults common before punish simple law 1776 to indictment summarily assaults and batteries without simple juris summary In this State jury. justice municipal magistrate diction of or of has never Act under the Persons proceedings Disorderly been Constitutions under the seriously questioned *36 expanded has 1844, and 1947. This jurisdiction of of the the far beyond the exercise of State police power of variety 1799 to a great narrow of the act of limits original far offenses, being related of these offenses many of petty assault simple in nature than assault simple more serious either them being and a number of considerable battery In these akin thereto. offenses at common law or indictable disorderly persons over summary jurisdiction respects and the that the justice magistrate resembles of of where, offenses, petty under local ordinances governing of act be both violation may one and the same we have seen point The line of only authority and a crime. an ordinance Anderson, from direction stems State in the opposite ing v. Anderson case was fol 40 L. but the supra, N. J. 42 N. J. L. 41 N. J. L. affirmed v. Meyer, lowed in State v. 33 Woodruff, mention McGear nor does it 145, supra, City and Howe v. Treasurer 213, supra, J. L. N. which define the supra, power 37 N. J. Plainfield, sum ordinances respect creating municipalities This field is akin to over offenses. petty jurisdiction mary Act, under the Persons Disorderly summary jurisdiction with reference to principles constitutional the same control both fields. We and trial by indictment J. 2A :170-26 is N. constitutional. S. conclude therefore is is affirmed and case remanded below The judgment
279 further proceedings Court of Hoboken Municipal with this opinion. consistent not one of policy The J. (dissenting). question
Heher, have policy but of constitutional Considerations power. province the constitutional in an involving no place inquiry do- within the of the If the act is legislative Legislature. issue; if it main, the law.is not justiciable the wisdom of to be determined not, the measure is then policy reserve power of the the exercise people through amend the law. organic trial are by jury and the jury system right grand the Constitu- I, 8, 9 and 10 of Article
secured by paragraphs 10 guarantee tion 1947. Paragraphs for- and criminal cases. Paragraph civil by jury offense, “unless on the pre- a criminal prosecution bids in certain except” jury, or indictment of grand sentment “in cases now prosecuted not here pertinent cases specific without indictment.” that, the time of the adoption at can be no doubt
There offense was an battery assault and Constitution, This then indictment. subject prosecution no conception law. There was dissent settled long brothers of my much is conceded offense. So majority. Anderson, Ct. 1878), N. J. L. 224 (Sup.
In State void a statute Beasley authorizing held Chief Justice ordinance, as for keeping under a local prosecution *37 of ardent unlicensed sales house, of the frequent a disorderly the city of an of incorporated ordinance Where an spirits. the of punishment for in such circumstances State provided house, disorderly prosecution a keeping of the offense said, with such The Justice Chief was forbidden. indictment acceptance, general unquestioning as to elicit logic compelling a crime indictable house is a disorderly of keeping the that law, at common imprisonment punishable by fine and it in state “and this can, Therefore, for prison. that if this offence is clear it
state purpose crimination, punishment, put the of trial and be into the municipal authorities, hands of these it that all follows common grade be, manner, deposited. law offences of the in same can like so This, arrangement would, I think cannot an be conceded. Such very infringe plain way, provision important a an of consti- the I, (Con- tution this state. of Article section of that instrument 1844) person stitution declares that ‘No be shall held to answer of presentment offence, for a criminal unless on or the indictment grand jury, except impeachment, cog- a in cases of or in eases justices peace,’ purpose nizable was to being arraigned &c. The of this clause prevent bringing reproach the of citizen the of under public, unless, by previous for crime before a the private, grand inquest examination taken in the had certified ground making charge. there existed some solid took for the It state, attorney-general, from the law officer of the the one prerogatives office; filing established his that of his information against supposed offenders, putting on trial at his thus them every reputation put own The volition. man was thus under single specified body. language the care of a of the constitu- very comprehensive, specified exceptions tional clause and the conclusively show entire it was intended to cover the residue presence In field criminal accusation. a such prohibition, permissible put how then is it a man on trial before city court, charged offence, a law this common preliminary grand jury? punish- sanction a If said the fine, is, restraining question ment is a answer clause in nothing trial, object has to do with the result effect of its being being brought save the shame of bar of a before the court, except criminal in the authorized an method after antecedent inquisition. clearly opinion person I am that a trial of a utterly municipal this offence before court would be act void.” The Anderson case was not taken to the Court of Errors and Appeals, perhaps because of concurrence in the general of that validity on, But later case exposition. a the offense of assault and the court last involving battery, resort affirmed a unanimously judgment by Supreme Court statute voiding permitting summary prosecution under “An children,” Act the welfare concerning 441, of an offense to an p. assault and amounting battery under upon child the care and custody of defendant. Mr. Kaliseh Justice Court said: Supreme charged being by jury “The offences indictable and triable prosecutrix lawfully prosecuted could not be for those acts under statute, relating Rodgers, to the welfare of children. State v. In
281 212, Trenchard, speaking N. 91 J. L. Justice of the Court Appeals (at p. 214) legislature Errors and said: doubt ‘No power provide punishment has for the offence which n disorderly merely and conduct not an offence indictable at commo ” law, by summary jury.’ proceedings indictment and trial And the Court of Errors and declared: Appeals battery, “An assault and no matter under what circumstances may law, committed, it been have is a crime indictable at common punishable imprisonment person a fine or or both. Whether a has who tried, committed crime indictable common law can be at punished pro summary convicted in in this state ceeding open question. is not an It was considered decided Anderson, 224, adversely 227, the ease State J. 40 N. L. present appellant, the contention of the soundness of that judicial challenged any subsequent pro decision has never been nouncement.” Richardson v. State Board Institutions Control Agencies, (Sup. 1923), & 98 N. L. J. 690 Ct. 99 N. J. L. affirmed (E. 1924). 516 & A. verbatim the Eepeating Beasley, Chief Justice reasoning the court of last resort said: “The of this declaration logic is irresistible.”
Such was the law, no long established dissent evoking whatever, when the Constitution 1947 came into being. The nature of the offense assault and battery, respects these constitutional We guaranties, beyond controversy. have quite held it recently to be that fairly presumed in the 1947 incorporation Constitution of principle embodied in the 1844 predecessor Constitution constituted acquiescence judicial long-standing interpretation the prior McCutcheon v. provision. Building State Author N. J. This ity, (1953). is one of basic canons of constitutional construction. of the old provision is deemed Constitution to be as thus construed. The adopted rule was applied by Court of Errors and Appeals Lorenzo, v. De 81 N. J. State & A. (E. 1911), Garrison, J.: it “From this doctrine follows that the constitution of when adopted provision respect constitution of sheriffs, knowledge did so with of the construction that inter-
vening legislation placed upon provision, had such and with the prevail.” such intent construction should continue and *39 8 of I, The Article pertinent exception paragraph with- 1947 Constitution is confined to “cases now prosecuted settled constitu- battery, out indictment.” Assault and by indictment; construction, by tional could be prosecuted only and unless this of the revised Constitution principle construction assessed the unquestioned keeping Constitution, intent and the 1844 principle same I will, the new Constitution the framers of purpose submit, at be subverted set naught. to is immemorial. Introduced by jury
The of trial right colonists, it freeman’s by birthright. this country It as “the by glory was characterized Blackstone which any law” “the most transcendent privilege English 3 Commentaries 379. enjoy.” can Blackstone’s subject would have said that “the Constitution been Justice Story if it had objection obnoxious the most conclusive justly it in the solemn terms.” and confirmed most recognized Schiedt, Dimick v. 293 2 Const. sec. 1779. Vide Story, R. L. 95 A. L. 1150 474, 55 79 Ed. U. S. Ct. S. Jur. 552. There is as to controversy 31 Am. (1934); secured was established or whether the right by freeman shall be Carta that no by Magna the provision hurt, legale judicium in either his person per property (nisi the lawful by suorum “unless legem ierraej, vel parium per land.” Vide his the law of the peers, by judgment 620, 42 Ed. Utah, 170 U. 18 S. Ct. v. S. Thompson Review, by Mr. Justice 39 Harvard Law paper (1898), But cannot be Corcoran. Frankfurter Thomas G. has evolved from jury system denied that the modern been bulwark Magna great Carta principle this liberties. English 1774, the first adopted the Declaration of
In Rights, “the re resolved that Congress unanimously Continental law to the common of England, are entitled colonies spective and inestimable privilege .great and more especially peers vicinage, tried their according of being Co. Hof, Traction Capital law.” the course of 580, 582, 43 L. Ed. 1, 19 (1899). S. Ct. U. S. secured has been by jury of trial The common-law “effectuate Constitutions; change and to our several law, qua the common deal with is not rules these distinction alter the law, but to Constitution. common out by Judge clearly has been fundamental, pointed Dimick v. ed., 124.” Limitations, 8th in 1 Const. Cooley 474, 55 Ct. S. Schiedt, U. S. supra cited 301]. [293 has its Thus, jury system genesis the constitutional effected law; and the modifications common early of petty the prosecution summary proceedings use of at innovation that *40 in statute England—an came by offenses the of action subversive by arbitrary attended the was outset Charter, and of repeal the Great by guaranteed civil liberties the legislation. the that says
Paley by justice summary statute, upon a which a conviction “earliest books, precedent record, is that of a in the of which is found on daggs, against practice carrying 8, 6, short- of c. the Hen. 33 guns. upon given precedent of a conviction has a Jlr. Lambard statute; appears into have been one removed there to and this forty- early by certiorari, as as the Bench Queen’s Elizabeth, of the Court proof very year a case affords 1600: and this of third day, which, objection, of manners at that in the state of the jealousy law, relaxing against might the common of exist the well authority private arbitrary entrusting anything by in hands. like against going officer, appears a a execute writ that a sheriff’s It justice hand-gun, debt, taking him a a and with of the obeying justice, rescue, apprehension instead of a the of from the officer, convicted, imprisoned writ, apprehended, till the and the f, paid of the Act of Parliament.” under colour of 10 he a fine e,d.), (8th Summary Paley 10. Convictions maxim that it to be a settled writer'declares This implied proceeding authority and determine con hear naked “a e., only, i. mtfde of determination common law to the formable only, jury; by that of 17 Edw. c. is noticed instance one and Henry 7, appearance reign which carries the of than the earlier jurisdiction. But, discretionary arbitrary in the and more of a legislature king’s reign, year was induced to the of that eleventh trial, respect law mode of ancient common for the all down break preamble, betrays that, spite by fair its true of the in Act an rapacious policy monarch, viz., source of the 11 Hen. 3; which, pretending many c. executed, by not wholesome statutes were embracery corruption inquests, reason of the and of the ordained, justices assize, should be lawful for the and justices jxeaee, every county', upon (for the information the king), discretion, to hear and all short al their determine offences against felony any discretionary being. statute then This authority, by intentionally rules, fettered no absolved usage, justices the of law and observance enabled the to execute any penal presentment by jury. all statutes without or trial statute, replenishing real intention of was which that of the by Exchequer arbitrary prosecutions, terror vexatious penalties, upon penal statutes, under colour of all the most obsolete times, rigorously however obscure or inconsistent was by Empson activity Dudley, seconded by By whose was stimulated grant extraordinary of the office Clerks the Forfeitures. power, their means of a the mischiefs so liable hands to abuse, galling oppression, an became more instrument intolerable pretensions authority. legal Among from its first acts, therefore, of the Parliament which commenced with suc ceeding reign, dangerous power, by was abolition of that repeal statute, and the attainder of two obnoxious abuse; according atonement, of its instruments whose popular justice, iniquity, maxims of rather measured illegality, Ibid., page than the of their acts.” 9. The author that after "this continues short unfavorable experiment” adduced Sir Edward Coke as example danger law, the common "and which has altering never been imitated a like law the general nature, same time, been, some seems to have with- legislature, *41 reason, out of a summary jurisdiction, sanction sparing Ibid., even in offences.” 10. particular page An assault is an is a attempt battery. commit a It Hawkins, misdemeanor at common 1 law. Pleas 110; Crown, 120; 3 Blackstone’s 4 Commentaries, 216. Ibid. An essential is an element intent to do harm. bodily State v. 85 N. J. L. 104 Seifert, Gill, Ct. Rex (Sup. 1913); v. 190; 1 Com. v. Eyre, 347; 1 & R. Strange Serg. Tuberville Adams, 1 3; v. Mod. Com. v. 114 Savage, Mass. 323 (Sup. Jud. Ct. 1873). common law does classify assaults as to All assaults are guilt. misdemeanors; degree yet some are deemed more serious than assaults, common from intent to commit apart assault, an general there
285 was also a intent specific criminal accomplish another an purpose, as murder, assault intent to or other- rob wise to a perpetrate felony; these latter were referred to an assaults” and “aggravated had consequences greater punitive than simple assaults. But there are technical no legal differences at common law are between assaults which slight and assaults are and are not aggravated, they recognized as Crime, distinct and separate crimes. Burdick’s Law of sec. 345.
A or, called, and battery, an “assault usually battery,” is a consummated or assault. completed They are Hawkins, two separate distinct Pleas offenses. the Court, 110. To in a spit obviously man’s face at common law. 172. battery Cotesworth, v. 6 Mod. Regina And to cut with a penknife a man’s coat has been adjudged v. 1 battery. Regina Cox C. C. 207. But Day, battery from ranges to the hurts and slightest greatest bodily may consist of countless injuries. Burdick’s Law physical Crime, 351, 352, sections 354. An assault and battery may be committed of an on a automobile operation 87 public Schutte, State v. N. J. L. 15 Ct. highway. (Sup. N. 1915), affirmed 88 396 & A. J. L. (E. 1916).
Assault and
is an indictable
battery
offense at common
law.
Commonwealth,
Mountain
68
v.
Pa.
100
Super.
(1917);
In
9
Robinson,
re
In
nature
Mackey
very
its
(1892).
it is a crime as
offense
distinguished
petty
pun
ishable
v.
summarily.
Colts,
District
Columbia
Compare
52,
U. S.
51 S. Ct.
The statute J. 2A I :170-26) S. (N. infringe- and, ment of the cited constitutional accord- guaranties; I would reverse the the dismissal ingly, judgment direct of the complaint. Oliphant Burling, JJ., in this join opinion. Vanderbilt, For Justice and Justices affirmance—Chief Wacheneeld, and Brennan—4. Jacobs Oliphant Burling—3. For reversal—Justices Heher,