(dissenting). The grand jury deemed the evidence insufficient to warrant an indictment of the defendant for assault with intent to commit rape, a high misdemeanor under N. J. 8. 2A :90-2. We were so advised by the assistant county prosecutor on the oral argument of this appeal. There is no contention here that such was the nature of the assault; and the evidence adduced would reasonably sustain the inference of a physical altercation devoid of an intent to ravish, an encounter born of excessive indulgence in an assortment of alcoholic drinks, both by the prosecuting witness and the defendant, during a round of public bars.
There is no occasion to recount the evidence adduced as proof of the charge laid to the defendant. The indictment alleges an atrocious assault and battery, also a high misdemeanor under N. J. 8. 2A :90-l. But there the act denounced is “atrocious assault and battery” by “maiming or wounding” another. We are not concerned here with intent or motive such as characterizes an assault with intent to commit rape. The physical injury suffered must plainly come within the definitive term “maiming or wounding,” the very essence of the high misdemeanor classified as atrocious assault and battery; sordid performance is not enough. Here, “maiming or wounding” constitutes “atrocious assault and battery,” quite unlike the principle of the companion provisions, N. J. 8. 2A :90-2, 2A :90-3, where the offenses involve an intent to commit one of the enumerated felonies or the use of an “offensive weapon or instrument,” described in the caption as an “assault with dangerous weapon.” The terms “maiming or wounding” take color from each other under the interpretive principle, noscitur a sociis, that words of analogous meaning in a statute are to be taken in their cognate sense of the same nature or quality. And the limitation has especial significance in the interpretation of a statute defining punitive offenses, expressed in the rule that penal statutes are to be strictly construed.
“Maim” in its common acceptation means (a) to “deprive of the use of a limb or member, so as to render a person *301in fighting less able either to defend himself or to annoy his adversary”; to “commit mayhem upon”; (b) to “mutilate or seriously wound or disfigure; disable.” And “wound” means to “produce a breach, or separation of parts, in, as by a cut, stab, blow, or the like; as, to wound an enemy with a sword; to wound a tree with an ax.” Webster's New International Dictionary (2d ed.).
“Mayhem” is defined by statute, N. J. S. 2A :125-1, to include any person who, “from premeditated design, evinced by lying in wait for the purpose, or in any other manner, or with intent to kill, maim or disfigure, cuts out and disables the tongue, puts out an eye, cuts off or slits a lip, cuts off, slits or destroys a nose or ear, or cuts off or disables any limb or member of another, willfully and on purpose, * * *,” an offense made a high misdemeanor.
An assault with intent to kill, commit' burglary, kidnapping, rape, robbery, sodomy or carnal abuse is classified as a high misdemeanor, N. J. S. 2A:90-2; and so also, N. J. 8. 2A :90—3, a willful or malicious assault of another “with an offensive weapon or instrument,” or a demand of money or personal goods and chattels of another “by menaces, force or violence, * * * with intent to rob such other person.” High misdemeanors are punishable, N. J. 8. 2A :85-6, by a fine of not more than $2,000, or by imprisonment for not more than seven years, or both, absent specific provision otherwise, and such is the case with N. J. 8. 2A :90-2, providing for a fine of not more than $3,000, or by imprisonment for not more than twelve years, or both.
“Assaults, batteries” and certain other enumerated offenses, and all other offenses of an indictable nature at common law, “and not otherwise expressly provided for by statute,” are denominated misdemeanors, punishable by a fine of not more than $1,000, or by imprisonment for not more than three 3rears, or both, unless otherwise specifically provided. N. J. 8. 2A :85—1, formerly R. 8. 2:103-1; N. J. 8. 2A :85-7.
And now, all such assaults and batteries of lesser gravity and degree, formerly termed misdemeanors, are classified as disorderly conduct. One who commits “an assault or *302assault and battery” is a disorderly person, N. J. 8. 24 :170-26, punishable by imprisonment for not more than one year in a county workhouse, penitentiary or jail or a fine not to exceed $1,000, or both. See also N. J. 8. 24 :170-37.
The evidence here does not establish the charge of atrocious assault and battery “by maiming or wounding,” under N. J. 8. 24:90-1.
Dr. Sylvia Coenca testified that her examination of the prosecuting witness at the Hackensack Hospital revealed “some very superficial lacerations around the eyes on one side and the cheek, I think—-but very superficial—merely scratches more than lacerations”; there was a need only to “clean up the scratches and that’s all; there was no more treatment than that.” The doctor was then shown a photograph of the prosecuting witness, “to refresh [her] memory”; and she reiterated: “It was just scratches—■ I remember her very well. It was only scratches.” And the doctor was unable to say whether the bruises were inflicted by blows. A police officer told of “weeds and brushes” at the locus. The prosecuting witness said that defendant made no mention of sexual relations; there was no “discussion about loving”; and she did not know why the defendant “attacked” her. Another police officer said that he did not notice any scratches on the prosecuting witness when he first saw her. And she admitted that the photographs of her taken not long after the occurrence showed “no scratches” of the face, but she insisted “they were there.” Alcoholic excesses may account for other incidents cited by the State, not involving maiming or wounding; and there is the element of exaggeration.
The “down-grading” to “disorderly conduct” of the lesser degree of assault and battery theretofore classified as a misdemeanor, has not altered the essential character and quality of the aggravated offense denounced by N. J. 8. 24 :90-l. The basic nature of that offense remains the same. In State v. Maier, 13 N. J. 235, 241 (1953), Chief Justice Vanderbilt said that by the down-grading provision, N. J. 8. *3032A :170-26, the Legislature was providing for “simple assaults and batteries as distinguished from the serious crimes provided for in the three sections of the statutes [adverted to, N. J. 8. 2A :90-l, “by the vicious act”; N. J. 8. 2A :90-2, “by the evil purpose of the defendant”; and N. J. 8. 2A :90-3, “by the use of offensive weapons or threats of violence”]. The Legislature might have interposed between simple assault and simple assault and battery as disorderly conduct and the three kinds of high misdemeanors [referred to], the intermediate offense of assault and assault and battery of general scope as misdemeanors distinguished by definition on the one hand from disorderly conduct and the three kinds of high misdemeanors on the other, and there is much that might be said for such a gradation in an offense of such a wide range as assault and battery, but the Legislature has not yet done so except in [some] limited instances” not pertinent here.
And it goes without saying that the courts cannot do what the Legislature has failed to do.
N. J. 8. 2A :170—36 renders a person who commits “an assault or an assault and battery” a disorderly person. The definition is not qualified by the adjective “simple”; and it plainly comprehends all assaults and batteries not classable as high misdemeanors according to the definition contained in the cited sections of the statute.
At common law an assault is an attempt to do unlawful bodily harm or injury to another, that is to say, an attempt to commit a battery; and a battery is a consummated or completed assault. Under the common law there is no classification of assaults as to the degree of the offense, all assaults being misdemeanors. Yet some assaults are there regarded as more serious than common assaults, since in addition to the general intent to commit an assault there was a specific intent to do some otheT act also criminal, as an assault with intent to murder, to rob, or to commit some other felony, often described as “aggravated assaults,” and for that reason punishable with more severity than simple assaults. There are no legal or technical differences *304at common law between assaults which are slight and assaults that are aggravated; they are not there recognized as distinct and separate crimes, but assaults subject in judicial discretion to heavier penalties according to the degree of aggravation. Now, by statute, aggravated assaults are usually made felonies or high misdemeanors, and they are distinguished from simple assaults by classification according to the felonious intent, e. g., assaults “with intent to kill,” “to rape,” “to rob,” assaults “with deadly weapons,” “with intent to do grievous, or great, bodily harm”; and they are sometimes designated as “felonious assaults.” Burdick, Law of Crime, §§ 338, 345. At common law assaults with intent to commit felonies are misdemeanors, and under this head fall all aggravated assaults; the punishment varies according to the discretion of the court, but not the grade of the offense. Wharton’s Criminal Law (12th ed.), § 840.
There was here no “maiming or wounding” within the intendment of N. J. S. 2A :90-l to sustain the sentence of three to five years in the State Prison, as for the commission of a high misdemeanor therein defined. The act has in view an aggravated assault and battery, involving physical injury, cruel and grievous in its nature and consequences, such as is “atrocious” in its common acceptation. State v. Capawmna, 118 N. J. L. 429 (Sup. Ct. 1937), affirmed 119 N. J. L. 337 (E. & A. 1938). The statute can mean nothing else; otherwise there would be no line of demarcation between the high misdemeanor and the misdemeanor, reduced to disorderly conduct. There was- no charge here of an assault with intent to commit a felony or high misdemeanor.
If the disorderly person provision, N. J. S. 2A :170-26, is a constitutional exercise of the legislative power, and it has been so adjudged in Maier, then we must abide by the change of policy, however we may regard it; there can be no enlargement of the statutory sense of atrocious assault and battery, as a high misdemeanor, to include other definitive aggravating circumstances where “maiming or wounding” within the understanding of N. J. S. 2A :90-l is wanting, *305and the need for criminal sanctions rather than the punitive consequences of disorderly conduct would seem to be preferable as a measure of social and individual justice. Policy is the exclusive province of the Legislature. And the permissible punishment for one adjudged a disorderly person for the given offense, a year’s imprisonment and a fine of $1,000, is a sanction of moment.
In State v. Riley, 28 N. J. 188 (1958), a club was the instrument of the assault and battery committed by the defendants, “an offensive weapon or instrument.”
The interpretation of the statute concerns not alone the basic rights of the particular defendant, but the future enforcement of the law as well.
I would reverse the judgment.