The Jersey City news. (Jersey City [N.J.]) 1889-1906, 1901-03-26

NEW LAW RAISES THE QUESTION
Atrocious Assault Was a
High Misdemeanor in
1898.
Is Thomas G. Barker, under the exist
ing laws, guilty of anything greater than
simple assault for attempting the life of
the Rev. John Kellar of Arlington? This
question is today being discussed by
many lawyers, and some of them contend
that a recent enactment of the present
Legislature does away with the possible
fly of Barker's connection for a high
misdemeanor-in which class atrocious
assault was placed by the criminal law
revision of 1s9S-and renders him liable,
If convicted, to a penalty of only three
years Imprisonment and a fine of $1,000
the maximum for a misdemeanor in
which category assault and battery was
placed by the same revision.
This strange condition of affairs, it is
claimed, is due to the adoption of SEN
ate bill No. q, which was introduced by
Senator Francis at the present session,
was recently signed by the Governor and
is now a law.
Barker was indicted by the last Grand
Jury, under Chapter 2S of the Criminal
Laws of 1898. The Indictment contained
three counts. One charged atrocious as
sault, a second assault with intent to
kill, and the third, assault and battery.
The clause of the chapter under which
the two main counts were framed, reads:
Amy person who shall commit an as
sault with intent to kill, or with intent
to commit any burglary, rape, robbery
or eodomy, or who shall commit an afro
cious assault and battery by manning or
wounding another, shall be builty OF a
high misdemeanor.'
The maximum penalty prescribed for a
high misdemeanor under the 1888 revision
is seven years imprisonment and $1,000
fine.
Senate bill No. 21, adopted by the pres
ent Legislature, reads
ANY person who shall commit an as
sault with intent to kill or to commit
burglary, rape, robbery, sodomy, or afro
cious assault and battery, shall be pun
ished by fine of not exceeding $1,000, or
by Imprisonment with or without hard
labor, as the Court may direct, for a
| term not exceeding twelve years, or
| both.
''All acts or parts of acts inconsistent
with the foregoing shall be hereby re-
| pealed.
| This act to take effect Immediately"
| 1t is apparent that the intention of the
| Legislature was to repeal the act of 1888
and provide a greater maximum penalty,
and here the complications arise.
| Barker's crime was committed before
| the adoption of Senator Francis's bill A
| law cannot be made retractive, and there
| fore, it is contended, he cannot be tried
under it. The prior act under which he
was indicted is repealed and no longer a
| law, and some lawyers contend that un-
| der the circumstances he cannot be
| brought to trial on either of the two
principal counts of the indictment.
| Others insist that as the crimes enumer-
ated are the same in both acts, one is
not inconsistent with the other and there
| fore only the penalty provided in the act
| of 1898 is repealed by the present law.
| The substance of this argument would
seem to be that the accused man could
1 be tried on the indictment found against
| him, but could not be sentenced if con-
victed, because the penalty in the original
act has been done away with and the
1 penalty provided by the Francis measure
/ did not exist at the time of the commits
| sion Of the crime and could not be made
retroactive.
The count in the indictment charging
Barker with assault and battery is based
on Section 215 of the 1898 revision. which
reads:-
Assault and batteries, false imprison-
ments, affrays, riots, routs, unlawful as
! semblies, nuisances, cheats, deceits and
/ all other offences of an indictable nature
1 at common law, and not provided for in
or by this or some other act of the Legis-
| lature shall be misdemeanors and be pun
| ished accordingly"
Not a few lawyers contend that the
maximum penalty that can be imposed
| upon the would-be murderer of the
4 Arlington clergyman, in the event of his
4 conviction is the three years imprison-
ment and $1,000 fine provided by the re-
vision of the criminal laws for misde-
1 meanors.
| AS the difference between three and
| twelve years imprisonment and $1,000 and
j 5000 fine is quite considerable, the dis
! cussion is of especial interest to Barker
/ and his friends.
Counsellor Marshall A. Van Wrinkle,
] when asked his opinion of the situation,
this morning, said:--
\ SAT first glance the act would appear
/ to be ex-post facto, and it would seem
that the act would have the effect OF
preventing the Barker Indictment ever
| being brought to trial. do not care
however, until I have looked more close
ly into the law, to place myself on rec
ord in the matter. Suffice it to say that
if the law is ex-post facto I will exhaust
every legal right to protect my client
The fact that the bill was introduced be-
fore the crime was committee for which
Barker is under indictment, precludes the
possible opinion that it was introduced
lin Barkers interest.
| Exx-Assistant Prosecutor. Joseph M