State v. Maier

Heher, J.

(dissenting). The question is not one of policy but of constitutional power. Considerations of policy have no place in an inquiry involving the constitutional province of the Legislature. If the act is within the legislative domain, the wisdom of the law.is not a justiciable issue; if it is not, then the policy of the measure is to be determined by the people through the exercise of the reserve power to amend the organic law.

The grand jury system and the right of trial by jury are secured by Article I, paragraphs 8, 9 and 10 of the Constitution of 1947. Paragraphs 9 and 10 guarantee the right of trial by jury in civil and criminal cases. Paragraph 8 forbids prosecution for a criminal offense, “unless on the presentment or indictment of a grand jury, except” in certain specific cases not here pertinent and “in cases now prosecuted without indictment.”

There can be no doubt that, at the time of the adoption of the 1947 Constitution, assault and battery was an offense subject to prosecution only by indictment. This was then long settled law. There was no dissent from that conception of the offense. So much is conceded by my brothers of the majority.

In State v. Anderson, 40 N. J. L. 224 (Sup. Ct. 1878), Chief Justice Beasley held void a statute authorizing the prosecution under a local ordinance, as for the keeping of a disorderly house, of the frequent unlicensed sales of ardent spirits. Where an ordinance of an incorporated city of the State provided in such circumstances for the punishment of the offense of keeping a disorderly house, prosecution by indictment was forbidden. The Chief Justice said, with such compelling logic as to elicit unquestioning general acceptance, that the keeping of a disorderly house is a crime indictable at common law,

“and in this state it is punishable by fine and imprisonment in the state prison. Therefore, it is clear that if this offence can, for *280 the purpose of crimination, trial and punishment, be put into the hands of these municipal authorities, it follows that all common law offences of the same grade can be, in like manner, so deposited. This, I think cannot be conceded. Such an arrangement would, in a very plain way, infringe an important provision of the constitution of this state. Article I, section 9, of that instrument (Constitution of 1844) declares that ‘No person shall be held to answer for a criminal offence, unless on the presentment or indictment or a grand jury, except in cases of impeachment, or in eases cognizable by justices of the peace,’ &c. The purpose of this clause was to prevent the bringing of any citizen under the reproach of being arraigned for crime before the public, unless, by a previous examination taken in private, the grand inquest had certified that there existed some solid ground for making the charge. It took from the law officer of the state, the attorney-general, one of the established prerogatives of his office; that of filing his information against supposed offenders, and thus putting them on trial at his own volition. The reputation of every man was thus put under the care of a single specified body. The language of the constitutional clause is very comprehensive, and the specified exceptions show conclusively that it was intended to cover the residue of the entire field of criminal accusation. In the presence of such a prohibition, how then is it permissible to put a man on trial before a city court, charged with this common law offence, without the preliminary sanction of a grand jury? If it be said the punishment is only a fine, the answer is, the restraining clause in question has nothing to do with the result or effect of the trial, its object being to save from the shame of being brought before the bar of a criminal court, except in the authorized method after an antecedent inquisition. I am clearly of opinion that a trial of a person for this offence before the municipal court would be an act utterly void.”

The Anderson case was not taken to the Court of Errors and Appeals, perhaps because of general concurrence in the validity of that exposition. But later on, in 1923, in a case involving the offense of assault and battery, the court of last resort unanimously affirmed a judgment by the Supreme Court voiding a statute permitting a summary prosecution under “An Act concerning the welfare of children,” L. 1915, p. 441, of an offense amounting to an assault and battery upon a child under the care and custody of the defendant. Mr. Justice Kaliseh for the Supreme Court said:

“The offences charged being indictable and triable by jury the prosecutrix could not be lawfully prosecuted for those acts under the statute, relating to the welfare of children. In State v. Rodgers, *281 91 N. J. L. 212, Justice Trenchard, speaking for the Court of Errors and Appeals (at p. 214) said: ‘No doubt the legislature has power to provide for the punishment of an offence which is disorderly conduct merely and not an offence indictable at common law, by summary proceedings without indictment and trial by jury.’ ”

And the Court of Errors and Appeals declared:

“An assault and battery, no matter under what circumstances it may have been committed, is a crime indictable at common law, punishable by a fine or imprisonment or both. Whether a person who has committed a crime indictable at common law can be tried, convicted and punished in this state in a summary proceeding is not an open question. It was considered and decided in the ease of State v. Anderson, 40 N. J. L. 224, 227, adversely to the contention of the present appellant, and the soundness of that decision has never been challenged in any subsequent judicial pronouncement.” Richardson v. State Board of Control of Institutions & Agencies, 98 N. J. L. 690 (Sup. Ct. 1923), affirmed 99 N. J. L. 516 (E. & A. 1924).

Eepeating verbatim the reasoning of Chief Justice Beasley, the court of last resort said: “The logic of this declaration is irresistible.”

Such was the long established law, evoking no dissent whatever, when the Constitution of 1947 came into being. The nature of the offense of assault and battery, as respects these constitutional guaranties, was beyond controversy. We have quite recently held that it is fairly to be presumed that the incorporation in the 1947 Constitution of a principle embodied in the predecessor 1844 Constitution constituted acquiescence in the long-standing judicial interpretation of the prior provision. McCutcheon v. State Building Authority, 13 N. J. 46 (1953). This is one of the basic canons of constitutional construction. The provision of the old Constitution is deemed to be adopted as thus construed. The rule was applied by the Court of Errors and Appeals in State v. De Lorenzo, 81 N. J. L. 613, 623 (E. & A. 1911), Garrison, J.:

“From this doctrine it follows that the constitution of 1844, when it adopted the provision of the constitution of 1776, with respect to sheriffs, did so with knowledge of the construction that intervening legislation had placed upon such provision, and with the intent that such construction should continue and prevail.”

*282 The pertinent exception of Article I, paragraph 8 of the 1947 Constitution is confined to “cases now prosecuted without indictment.” Assault and battery, by settled constitutional construction, could be prosecuted only by indictment; and unless this principle of the revised Constitution be assessed in keeping with the unquestioned construction of the same principle of the 1844 Constitution, the intent and purpose of the framers of the new Constitution will, I submit, be subverted and set at naught.

The right of trial by jury is immemorial. Introduced to this country by the colonists, it is the freeman’s birthright. It was characterized by Blackstone as “the glory of the English law” and “the most transcendent privilege which any subject can enjoy.” 3 Blackstone’s Commentaries 379. Justice Story said that “the Constitution would have been justly obnoxious to the most conclusive objection if it had not recognized and confirmed it in the most solemn terms.” 2 Story, Const. sec. 1779. Vide Dimick v. Schiedt, 293 U. S. 474 , 55 S. Ct. 296 , 79 L. Ed. 603 , 95 A. L. R. 1150 (1934); 31 Am. Jur. 552 . There is controversy as to whether the right of trial by jury was established or secured by the provision of Magna Carta that no freeman shall be hurt, in either his person or property (nisi per legale judicium parium suorum vel per legem ierraej, “unless by the lawful judgment of his peers, or by the law of the land.” Vide Thompson v. Utah, 170 U. S. 343 , 18 S. Ct. 620 , 42 L. Ed. 1061 (1898), 39 Harvard Law Review, paper by Mr. Justice Frankfurter and Thomas G. Corcoran. But it cannot be denied that the modern jury system has been evolved from this principle of Magna Carta as the great bulwark of English liberties.

In the Declaration of Rights, adopted in 1774, the first Continental Congress unanimously resolved that “the respective colonies are entitled to the common law of England, and more especially to the .great and inestimable privilege of being tried by their peers of the vicinage, according to the course of that law.” Capital Traction Co. v. Hof, 174 U. S. 1, 19 S. Ct. 580, 582 , 43 L. Ed. 873 (1899).

*283 The common-law right of trial by jury has been secured by our several Constitutions; and to “effectuate any change in these rules is not to deal with the common law, qua common law, but to alter the Constitution. The distinction is fundamental, and has been clearly pointed out by Judge Cooley in 1 Const. Limitations, 8th ed., 124.” Dimick v. Schiedt, cited supra [ 293 U. S. 474 , 55 S. Ct. 301 ].

Thus, the constitutional jury system has its genesis in the early common law; and the modifications effected by the use of summary proceedings for the prosecution of petty offenses came by statute in England—an innovation that at the outset was attended by arbitrary action subversive of the civil liberties guaranteed by the Great Charter, and repeal of the legislation.

Paley says that the

“earliest statute, upon which a summary conviction by a justice is on record, or of which a precedent is found in the books, is that of 33 Hen. 8 , c. 6, against the practice of carrying daggs, or short-guns. Jlr. Lambard has given a precedent of a conviction upon this statute; and there appears to have been one removed into the Court of Queen’s Bench by certiorari, as early as the forty-third year of Elizabeth, 1600: and this very case affords a proof of the objection, which, in the state of manners at that day, might well exist against relaxing the jealousy of the common law, by entrusting anything like arbitrary authority in private hands. It appears that a sheriff’s officer, going to execute a writ against a justice of the peace for a debt, and taking with him a hand-gun, from the apprehension of a rescue, the justice, instead of obeying the writ, apprehended, convicted, and imprisoned the officer, till he paid a fine of 10 f, under colour of the Act of Parliament.” Paley on Summary Convictions (8th e,d.), 10.

This writer'declares it to be a settled maxim that

“a naked authority to hear and determine implied a proceeding conformable to the common law mtfde of determination only, i. e., by a jury; and one instance only, that of 17 Edw. 4 , c. 4, is noticed earlier than the reign of Henry 7, which carries the appearance of a more arbitrary and discretionary jurisdiction. But, in the eleventh year of that king’s reign, the legislature was induced to break down all respect for the ancient common law mode of trial, by an Act that, in spite of the fair preamble, betrays its true *284 source in the rapacious policy of the monarch, viz., 11 Hen. 7 , c. 3; which, pretending that many wholesome statutes were not executed, by reason of the embracery and corruption of the inquests, ordained, that it should be lawful for the justices of assize, and the justices of jxeaee, in every county', upon information (for the king), al their discretion, to hear and determine all offences short of felony against any statute then in being. This discretionary authority, fettered by no rules, and intentionally absolved from the observance of law and usage, enabled the justices to execute all penal statutes without any presentment or trial by jury. The real intention of the statute, which was that of replenishing the Exchequer by the terror of arbitrary and vexatious prosecutions, under colour of penalties, upon all the most obsolete penal statutes, however obscure or inconsistent with the times, was rigorously seconded by Empson and Dudley, whose activity was stimulated by a grant of the extraordinary office of Clerks of the Forfeitures. By their means the mischiefs of a power, so liable in any hands to abuse, became an instrument of intolerable oppression, the more galling from its pretensions to legal authority. Among the first acts, therefore, of the Parliament which commenced with the succeeding reign, was the abolition of that dangerous power, by the repeal of the statute, and the attainder of the two obnoxious instruments of its abuse; whose atonement, according to the maxims of popular justice, was measured by the iniquity, rather than the illegality, of their acts.” Ibid., page 9.

The author continues that after "this short and unfavorable experiment” adduced by Sir Edward Coke as an example of the danger of altering the common law, "and which has never been imitated by a like general law of the same nature, the legislature, for some time, seems to have been, not without reason, sparing in the sanction of a summary jurisdiction, even in particular offences.” Ibid., page 10.

An assault is an attempt to commit a battery. It is a misdemeanor at common law. 1 Hawkins, Pleas of the Crown, 110; 3 Blackstone’s Commentaries, 120; 4 Ibid. 216. An essential element is an intent to do bodily harm. State v. Seifert, 85 N. J. L. 104 (Sup. Ct. 1913); Rex v. Gill, 1 Strange 190; Com. v. Eyre, 1 Serg. & R. 347; Tuberville v. Savage, 1 Mod. 3; Com. v. Adams, 114 Mass. 323 (Sup. Jud. Ct. 1873). The common law does not classify assaults as to degree of guilt. All assaults are misdemeanors; yet some are deemed more serious than common assaults, in that apart from the general intent to commit an assault, there *285 was also a specific intent to accomplish another criminal purpose, as an assault with intent to murder, to rob or otherwise to perpetrate a felony; these latter were referred to an “aggravated assaults” and had greater punitive consequences than simple assaults. But there are no legal or technical differences at common law between assaults which are slight and assaults that are aggravated, and they are not recognized as distinct and separate crimes. Burdick’s Law of Crime, sec. 345.

A battery, or, as it is usually called, an “assault and battery,” is a consummated or completed assault. They are two separate and distinct offenses. Hawkins, Pleas of the Court, 110. To spit in a man’s face is obviously a battery at common law. Regina v. Cotesworth, 6 Mod. 172. And to cut with a penknife a man’s coat has been adjudged a battery. Regina v. Day, 1 Cox C. C. 207. But a battery ranges from the slightest to the greatest bodily hurts and may consist of countless physical injuries. Burdick’s Law of Crime, sections 351, 352, 354. An assault and battery may be committed in the operation of an automobile on a public highway. State v. Schutte, 87 N. J. L. 15 (Sup. Ct. 1915), affirmed 88 N. J. L. 396 (E. & A. 1916).

Assault and battery is an indictable offense at common law. Mountain v. Commonwealth, 68 Pa. Super. 100 (1917); In re Robinson, 9 Mackey 570 (1892). In its very nature it is a crime as distinguished from the petty offense punishable summarily. Compare District of Columbia v. Colts, 282 U. S. 63 , 51 S. Ct. 52 , 75 L. Ed. 177 (1930); District of Columbia v. Clawans, 300 U. S. 617 , 57 S. Ct. 660 , 8 L. Ed. 843 (1936).

The statute (N. J. S. 2A :170-26) is, I submit, an infringement of the cited constitutional guaranties; and, accordingly, I would reverse the judgment and direct the dismissal of the complaint.

Oliphant and Burling, JJ., join in this opinion.

For affirmance—Chief Justice Vanderbilt, and Justices Wacheneeld, Jacobs and Brennan—4.

For reversal—Justices Heher, Oliphant and Burling—3.