
    The People, Resp’ts, v. Joseph Murray, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed November 7, 1889.)
    
    1. Assault—Wbat will constitute—Penal Code, § 218, sued. 4.
    Defendant was running through the street with an open jack-knife in his hands, and made three lunges with it at an officer who attempted to stop him Neld, an assault within subd. 4 of § 218, Penal Code, and that defendant was not justified on the theory of an illegal arrest as he had no-right to use greater force than was essential to maintain his freedom.
    2. Arrest—Breach oe the peace—Laws 1882, ch. 410, § 1458.
    While a man may lawfully run in the street and may lawfully hold an open knife in his hands while doing so, yet this may be done in such manner as to threaten the public peace and authorize an arrest without warrant under §§ 277, 1458 of the consolidation act, and the question whether such act tended to provoke a breach of the peace is for the jury to determine upon all the facts.
    Appeal from a judgment of the court of general sessions of the peace, upon the defendant’s conviction of assault in the second degree.
    
      Ambrose H. Purdy, for app’lt; McKenzie Semple, for resp’ts.
   Barrett, J.

Murray’s case clearly came within the fourth subdivision of § 218 of the Penal Code, namely, wilfully and wrongfully assaulting another by the use of a weapon or other instrument or thing likely to produce grievous bodily harm.

Murray was seen by an officer running through the streets with an open jack-knife in his hands. The handle of this knife was about two and one-half inches long, and the blade was of about the same length. The officer attempted to stop him, whereupon Murray sought to stab the officer, making three lunges at him with the open knife. There was no defense upon the facts. I mean that no testimony was offered by the prisoner. He relied and now relies upon the point of law that the officer had no right to ■arrest him without a warrant.

While it must be conceded that there was no evidence from which the officer could reasonably infer the commission of a felony, yet there was, to my judgment, enough to go to the jury upon the question of disorderly conduct. Section 1458 of the consolidation act, Laws 1882, ch.,410, declares that every person in the city of Mew York who shall use any threatening behavior, with intent to provoke a breach of the peace or whereby a breach of the peace may be occasioned, shall be guilty of disorderly conduct. By the same act, § 277, the members of the police force are authorized to arrest, without warrant, any person who shall commit or threaten or attept to commit, in the presence of such member, or within his view, any breach of the peace or offence directly prohibited by act of the legislature or by any ordinance of the city.

The question then is whether Murray’s conduct came within the definition of disorderly conduct given in § 1458. It is true that a man may run through the streets without being guilty of threatening behavior, even when pursued lawfully or unlawfully by an officer. It is equally true that he may lawfully hold in his hand an open jack-knife. But the circumstances attending these acts may be such as to bring the case within the statute.

In other words, a man may run through the streets wielding an open knife in such a manner as to threaten the public peace. Whether he did so in the present instance, whether the prisoner’s “behavior” was “threatening,” whether it tended to provoke a breach of the peace, whether it was such that a breach of the peace might be occasioned thereby, were questions to be determined by the jury upon all the facts and circumstances of the case.

There was not enough here to warrant the court in directing the jury one way or the other as matter of law. The evidence, though uncontradic'ted, was susceptible of two views or inferences; and, upon the whole, I think the question was properly left to the jury as .one of fact, under appropriate instructions. Such instructions were given, and the prisoner cannot complain of their fairness.

It is also contended that the arrest was not, in fact, made upon the ground of disorderly conduct. This, however, is a pure assumption. The jury, too, have found the other way, in substance, that the prisoner was lawfully arrested by one (an officer) in whose presence he was committing a misdemeanor. The conviction can properly be sustained upon another ground.

It seems that Murray when stopped was running away from •one Mitchell, also an officer. That officer requested the complainant, Holahan, to assist him in securing Murray. Holahan then got behind a wagon and, as Murray approached, jumped out in front of, and reached for him. This was all that Holahan did prior to Murray’s assault.

Upon the undisputed facts, therefore, Murray lunged at Holahan three times with the open jack-knife before even a hand had actually been placed upon him. Holahan managed to retreat, and to escape . being stabbed. He subsequently succeeded in tripping Murray, who fell, and the arrest followed.

What transpired afterwards, namely, Holahan’s drawing his club and striking Murray to. protect himself, as he said, against the still open kmfe, did not condone the original assault.

That assault cannot be justified, even upon the theory of an illegal arrest. Holahan had apparently no weapon. He had not then drawn his club. He simply attempted, with open hands, to seize Murray’s person. If he thus erred in doing what he supposed to be his duty, Murray had no right to use greater force than was essential to maintain his freedom. He was certainly responsible, on the facts stated, for the unnecessary attempt to stab, and for that wrongful and willful act he was justly convicted.

The judgment should, therefore, be affirmed.

Van Brunt, P. J., and Daniels, J., concur.  