The opinion of the court was delivered by
Wacheneeld, J.
The defendant waived trial by jury and was convicted by a judge of the Bergen County Court of the crime of atrocious assault and battery. N. J. 8. 2A :90-l. An appeal was taken and, at this juncture, we granted certification to the Appellate Division on our own motion.
The only ground urged for reversal is that the injuries sustained by the victim were not sufficiently severe to warrant a conviction of atrocious assault and battery.
The defendant admits striking the victim in the face with his fist and pushing her into some bushes, but claims his actions amounted to only simple assault and battery. Formerly a crime, simple assault and battery has now been downgraded to a disorderly persons offense which is triable only in the municipal court. State v. Maier, 13 N. J. 235 (1953). Thus, if the defendant’s contention is correct, the Bergen County Court had no jurisdiction over his offense.
On September 1, 1957 the defendant and one Mary Harbochuk had been making the rounds of various taverns in Passaic, Carlstadt and East Rutherford. She claimed the altercation ensued when the defendant tried to kiss her on the public street and she resisted his advances. He contended he had attacked Mary because she refused to return $40 he had entrusted to her. In any event, the girl was found by the police “moaning in a pitiful manner” and in [295]*295a “semi-nude” condition. She was “hysterical,” with her dress up and wearing nothing from the upper abdomen down, and her pants and shoes were found in the general area. She could not say whether sexual intercourse had been attempted since, as a result of the struggle, she became “semiconscious.” She was lying in the bushes on a vacant lot, about ten feet from the sidewalk. The injuries sustained as a result of the battery were multiple scratches and bruises.
Mary testified: “I had a bruised lip and I had black and blue marks under my chin, on my chin, under my eye, on my forehead, my neck and inside my thighs and scratches all over.” She testified the scratches had been bleeding. Two photographs showing her physical condition were offered in evidence. The marks on her neck were apparent for “two or three weeks” later; they “gradually went away.” Police Officer Meyers testified she was “quite bruised and her left eye was bruised and her neck had a few scratches on. Her lip was bruised, had a bruise.” He also stated one of her eyes was discolored.
Police Lieutenant Shevak saw the victim after she had been discharged from the hospital: “* * * she had a badly swollen eye, a lot of scratches around her neck, a split lip and bad bruises on the back of her left ear.”
Dr. Coenca, an interne at the Hackensack Hospital who had treated the victim in the emergency room, stated: “She had scratches on her face and neck and scratches on her legs and thighs and some bruises too. * * * I think she had some very superficial lacerations around the eyes on one side and the cheek, I think—but very superficial— merely scratches more than lacerations.” Her left eye had “a very small laceration but it was not deep enough to be sutured.” The victim remained at the hospital two or three hours.
When asked by the court, “Could you characterize the injuries as showing a savage or brutal beating?”, the doctor replied: “It might be, but—-I cannot be sure.”
As to the attack itself, Mary testified: “He grabbed me by the throat. He dragged me a little ways into a lot and [296]*296I started screaming. * * * I was struggling with him. So he brought me back further into the lot and he got me on the ground and he had his knee in my stomach and was choking me and I was trying to fight him off. I kept getting near unconsciousness. * * * I thought he was going to kill me right there and I got on top of him once and started choking him but I couldn’t hold him. * * * The next thing I remember was the emergency crew came and I saw lights and a stretcher.”
The defendant’s version of the attack appears in his voluntary statement, in which he said: “I struck her with my fist in her face, then I pushed her into the bushes near the sidewalk, then she fell down and I took my money and I left.”
The inquiry thus arises whether the attack and the results of it were sufficient to bring the crime within N. J. S. 2A :90-l, under which the defendant was indicted. The statute reads as follows:
“Any person who commits an atrocious assault and battery by maiming or wounding another is guilty of a high misdemeanor.”
The trial judge, in the course of his oral opinion, said:
“The law says that where a maiming or wounding is done by assault and battery that is savagely brutal or outrageously, or inhumanly cruel or violent, it amounts to atrocious assault and battery within the meaning of the statute.”
He defined "wounding” as meaning "injuring or hurting of a body such as bruising, contusing, lacerating, fracturing, dislocating, puncturing or cutting.” He concluded:
“In my opinion this was an outrageous, wanton, wilful attack upon this girl. She was dragged into a field, beaten with fists, scratched.”
The question presented by this appeal was only tangentially considered in the very recent case of State v. Riley, 28 N. J. 188 (1958). There, the decision turned upon whether a “wounding,” as the word is used in N. J. S. [297]*2972A :90-l, necessarily required a breaking of the victim’s skin. Here, the question facing us is whether or not the injuries inflicted were sufficiently serious so that when considered in conjunction with the manner o£ the assault the defendant’s offense can properly be classified as atrocious assault and battery, within the meaning of the statute upon which the indictment was based.
In the Riley ease we pointed out that atrocious assault and battery was defined in State v. Capawanna, 118 N. J. L. 429, 432 (Sup. Ct. 1937), affirmed p. c. 119 N. J. L. 337 (E. & A. 1938), as “an assault and battery that is savagely brutal or outrageously or inhumanly cruel or violent,” and that similarly in State v. Maier, supra, this court distinguished atrocious assault and battery from other types of aggravated assault and battery on the ground that N. J. S. 2A :90-l penalized the “vicious act” of the defendant rather than his evil purpose, N. J. S. 2A :90-2, or his use of offensive weapons or threats of violence, N. J. S. 2A: 9 0—3.
Again, in State v. McGrath, 17 N. J. 41, 49 (1954), in discussing the difference between simple assault and battery and atrocious assault and battery, this court stressed the nature, or brutal quality, of the defendant’s act as an important element.
These eases make it quite clear that to constitute an atrocious assault and battery the assault must be savagely brutal or outrageously or inhumanly cruel or violent and that the nature of the attack is of paramount importance in determining whether the crime has been committed. The kind and severity of the injuries inflicted is another factor to be taken into consideration.
Although we decided in the Riley case, supra, that it would be impractical to endeavor to spell out a precise rule which would,
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The opinion of the court was delivered by
Wacheneeld, J.
The defendant waived trial by jury and was convicted by a judge of the Bergen County Court of the crime of atrocious assault and battery. N. J. 8. 2A :90-l. An appeal was taken and, at this juncture, we granted certification to the Appellate Division on our own motion.
The only ground urged for reversal is that the injuries sustained by the victim were not sufficiently severe to warrant a conviction of atrocious assault and battery.
The defendant admits striking the victim in the face with his fist and pushing her into some bushes, but claims his actions amounted to only simple assault and battery. Formerly a crime, simple assault and battery has now been downgraded to a disorderly persons offense which is triable only in the municipal court. State v. Maier, 13 N. J. 235 (1953). Thus, if the defendant’s contention is correct, the Bergen County Court had no jurisdiction over his offense.
On September 1, 1957 the defendant and one Mary Harbochuk had been making the rounds of various taverns in Passaic, Carlstadt and East Rutherford. She claimed the altercation ensued when the defendant tried to kiss her on the public street and she resisted his advances. He contended he had attacked Mary because she refused to return $40 he had entrusted to her. In any event, the girl was found by the police “moaning in a pitiful manner” and in [295]*295a “semi-nude” condition. She was “hysterical,” with her dress up and wearing nothing from the upper abdomen down, and her pants and shoes were found in the general area. She could not say whether sexual intercourse had been attempted since, as a result of the struggle, she became “semiconscious.” She was lying in the bushes on a vacant lot, about ten feet from the sidewalk. The injuries sustained as a result of the battery were multiple scratches and bruises.
Mary testified: “I had a bruised lip and I had black and blue marks under my chin, on my chin, under my eye, on my forehead, my neck and inside my thighs and scratches all over.” She testified the scratches had been bleeding. Two photographs showing her physical condition were offered in evidence. The marks on her neck were apparent for “two or three weeks” later; they “gradually went away.” Police Officer Meyers testified she was “quite bruised and her left eye was bruised and her neck had a few scratches on. Her lip was bruised, had a bruise.” He also stated one of her eyes was discolored.
Police Lieutenant Shevak saw the victim after she had been discharged from the hospital: “* * * she had a badly swollen eye, a lot of scratches around her neck, a split lip and bad bruises on the back of her left ear.”
Dr. Coenca, an interne at the Hackensack Hospital who had treated the victim in the emergency room, stated: “She had scratches on her face and neck and scratches on her legs and thighs and some bruises too. * * * I think she had some very superficial lacerations around the eyes on one side and the cheek, I think—but very superficial— merely scratches more than lacerations.” Her left eye had “a very small laceration but it was not deep enough to be sutured.” The victim remained at the hospital two or three hours.
When asked by the court, “Could you characterize the injuries as showing a savage or brutal beating?”, the doctor replied: “It might be, but—-I cannot be sure.”
As to the attack itself, Mary testified: “He grabbed me by the throat. He dragged me a little ways into a lot and [296]*296I started screaming. * * * I was struggling with him. So he brought me back further into the lot and he got me on the ground and he had his knee in my stomach and was choking me and I was trying to fight him off. I kept getting near unconsciousness. * * * I thought he was going to kill me right there and I got on top of him once and started choking him but I couldn’t hold him. * * * The next thing I remember was the emergency crew came and I saw lights and a stretcher.”
The defendant’s version of the attack appears in his voluntary statement, in which he said: “I struck her with my fist in her face, then I pushed her into the bushes near the sidewalk, then she fell down and I took my money and I left.”
The inquiry thus arises whether the attack and the results of it were sufficient to bring the crime within N. J. S. 2A :90-l, under which the defendant was indicted. The statute reads as follows:
“Any person who commits an atrocious assault and battery by maiming or wounding another is guilty of a high misdemeanor.”
The trial judge, in the course of his oral opinion, said:
“The law says that where a maiming or wounding is done by assault and battery that is savagely brutal or outrageously, or inhumanly cruel or violent, it amounts to atrocious assault and battery within the meaning of the statute.”
He defined "wounding” as meaning "injuring or hurting of a body such as bruising, contusing, lacerating, fracturing, dislocating, puncturing or cutting.” He concluded:
“In my opinion this was an outrageous, wanton, wilful attack upon this girl. She was dragged into a field, beaten with fists, scratched.”
The question presented by this appeal was only tangentially considered in the very recent case of State v. Riley, 28 N. J. 188 (1958). There, the decision turned upon whether a “wounding,” as the word is used in N. J. S. [297]*2972A :90-l, necessarily required a breaking of the victim’s skin. Here, the question facing us is whether or not the injuries inflicted were sufficiently serious so that when considered in conjunction with the manner o£ the assault the defendant’s offense can properly be classified as atrocious assault and battery, within the meaning of the statute upon which the indictment was based.
In the Riley ease we pointed out that atrocious assault and battery was defined in State v. Capawanna, 118 N. J. L. 429, 432 (Sup. Ct. 1937), affirmed p. c. 119 N. J. L. 337 (E. & A. 1938), as “an assault and battery that is savagely brutal or outrageously or inhumanly cruel or violent,” and that similarly in State v. Maier, supra, this court distinguished atrocious assault and battery from other types of aggravated assault and battery on the ground that N. J. S. 2A :90-l penalized the “vicious act” of the defendant rather than his evil purpose, N. J. S. 2A :90-2, or his use of offensive weapons or threats of violence, N. J. S. 2A: 9 0—3.
Again, in State v. McGrath, 17 N. J. 41, 49 (1954), in discussing the difference between simple assault and battery and atrocious assault and battery, this court stressed the nature, or brutal quality, of the defendant’s act as an important element.
These eases make it quite clear that to constitute an atrocious assault and battery the assault must be savagely brutal or outrageously or inhumanly cruel or violent and that the nature of the attack is of paramount importance in determining whether the crime has been committed. The kind and severity of the injuries inflicted is another factor to be taken into consideration.
Although we decided in the Riley case, supra, that it would be impractical to endeavor to spell out a precise rule which would, in futuro, automatically decipher the difference on all occasions between simple assault and battery and atrocious assault and battery no matter what the facts might be, we definitely concluded that we would not accept the highly arbitrary rule that a “wounding” must necessarily entail a breaking of the skin.
[298]*298Tlie defendant, by his waiver of a jury trial, voluntarily entrusted the determination of the evidential facts and their legitimately derivative inferences to the trial judge, and the record before us discloses ample evidence justifying the judge’s conclusion that this was an “outrageous, wanton, wilful attack upon this girl.”
The victim was “grabbed” by the throat and “dragged” into the lot. She was thrown to the ground. Her assailant had his knee in her stomach and was choking her. She was on the verge of “unconsciousness.” She “thought he was going to kill [her] right there.” The next thing she remembered was “the emergency crew came and I saw lights and a stretcher.” It seemed to her that she had struggled for an “awful long time.”
The defendant’s attack was savagely brutal within the meaning of the statute in question, but, having thus decided, the inquiry still remains as to whether or not the injuries inflicted were sufficiently severe or substantial to satisfy the statutory definition of atrocious assault and battery.
Although, generally speaking, penal statutes are to be strictly construed, State v. Meinken, 10 N. J. 348 (1952), the rule of strict construction does not mean that the manifestations of the Legislature’s intention should be disregarded. State v. Friedman, 135 N. J. L. 419 (Sup. Ct. 1947), affirmed p. c. 136 N. J. L. 634 (E. & A. 1948). Thus, the word “wounding,” under these circumstances, should not be given a strained or technical meaning but should be interpreted according to its plain, obvious import, as the word is commonly employed.
In Gatlin v. State, 18 Ga. App. 9, 89 S. E. 345 (Ga. App. Ct. 1916), the court construed “wound” to include “injuries of every ldnd which affect the body, whether they are cuts, lacerations, fractures, or bruises,” while Bouvier’s Law Dictionary (Baldwin’s Gent. Ed. 1940), defines the word as:
“Wound. Any lesion of the body.
In this it differs from the meaning of the word when used in surgery. The latter only refers to a solution of continuity; while [299]*299the former comprises not only these, but also every other kind of accident, such as bruises, contusions, fractures, dislocations, and the like.”
To warrant a conviction of atrocious assault and battery, the injuries inflicted need not be permanent but they must nevertheless be substantial rather than superficial and should be considered in conjunction with the character of the assault made.
The defendant complains that “[t]he court did not follow and apply the rules of construction applicable to this highly penal statute and did not make a finding of fact in accordance with the evidence and the law applicable thereto.”
We find to the contrary. In summary, the injuries inflicted upon the victim consisted of a badly swollen eye, a laceration beneath the eye, bad bruises on the back of her left ear, black and blue marks under and on her chin, on her forehead, neck and inside her thighs, and scratches all over which bled. She was given hospital treatment, although released after two hours, and the marks of her injuries were apparent for two or three weeks.
True, the doctor testified that the scratches were superficial, but whether, in legal contemplation, they were or not was a question for the court to decide, taking into account the evidence of all of the other witnesses who seemed to think otherwise.
Under these circumstances, it became a question of fact to be decided by the trial judge, sitting without a jury, as to whether or not the injuries sustained were sufficiently substantial to come within the definition of the statute. He found against the defendant in this respect, and we are in accord.
The judgment below is affirmed.
For affirmance—Chief Justice Weintraub, and Justices Wacheneeld, Burling, Jacobs, Erancis and Proctor—-6.
For reversal—Justice Heher—1.