
    Supreme Court—Appellate Division—First Department.
    March, 1902.
    THE PEOPLE v. MARK SCHLESINGER.
    (70 App. Div. 199.)
    Assault—Charge to Jury.
    Upon the trial of a charge of assault, the testimony of the witnesses for the people tended to establish that defendant, a city inspector, went with a fellow inspector to a certain store to remove incumbrances from the sidewalk, that as Scott, an employee, came out of the store the inspectors undertook to take away a bag which he carried, knocked him down and seriously injured him. The defendants testified that as Scott came out he undertook to seize a leather bag which they were removing from the sidewalk, and in so doing slipped and fell. After the jury had retired in answer to an inquiry from a juror as to whether if defendants pushed Scott aside, and in so doing he fell, it might not be considered an accident, the court responded “ I said to find him guilty you must find that it was wilful and wrongful.” Again to the question, “If it was done by accident,” the court answered “ Oh, the law does not punish people criminally for accidents,” and again to the question, “ Suppose Scott interfered with him in his duties and he pushed him and he fell,” the court replied “ Any unlawful touching of a person, if done wilfully and wrongfully, is an assault. If I put the tip of my finger upon you, wilfully and wrongfully, that is an assault.” Held, while not erroneous it was misleading and may have resulted to the great ' prejudice of defendant, and entitled him to a new trial.
    Appeal by the defendant, Mark Schlesinger, from a judgment of the Court of General Sessions of the Peace, in and for the city and county of Hew York, in favor of the plaintiff, entered in the office of the clerk of said court on the 2'Tth day of October, 1899, upon the verdict of a jury convicting the defendant of the crime of assault in the second degree.
    William F. Howe, for the appellant.
    Howard S. Gans, for the respondent.
   McLaughlin, J.

The defendant appeals from a judgment of conviction of the crime of assault in the second degree and for which he has been sentenced to serve a term of one year in the penitentiary.

The facts charged in the indictment as constituting the crime for which he has been convicted are, in substance, that on the 20th of October, 1896, he wilfully and wrongfully inflicted grievous bodily harm upon one William Scott, by striking him, throwing him down, and beating him.

At the trial there was sharp conflict- of testimony between the witnesses offered on the part of the People and those offered on the part of the defendant. The testimony of the witnesses on the part of the former tended to establish that at the time stated in the indictment, the defendant, then an inspector in the bureau of incumbrances of the city of blew York, went, by the direction of his superior officer, to a trunk and leather store kept by one David A. Doyle, at ISTos. 1 and 2 Yesey street, in that city, for the purpose of removing and taking away whatever merchandise might be found in front of the store, upon the sidewalk, in violation of certain ordinances of the city; that the defendant was accompanied by one Olark, also a ■ inspector in the bureau of incumbrances; that as the defendant and Olark approached the store, one Scott, an employee therein, came out of tij& store with a leather traveling bag, which he, by the direction of his employer, was taking to a factory for the purpose of having it repaired; that as he met the defendant and Olark, they took hold of him and undertook to forcibly take the bag from him, and that in the altercation which followed, the defendant knocked Scott down, and in doing so, or thereafter beating him, inflicted very serious injuries upon him.

While the testimony on the part of the defendant tended to establish that the latter was not the cause of, or responsible for the injuries to Scott, so far as such testimony related to Scott’s injuries, it was substantially to the effect that, as Scott came out of the store, he attempted to seize one of the leather bags which the defendant was removing from the sidewalk and was about to take away, and that in doing so he slipped and fell to. the sidewalk, and in this way sustained his injuries; that he did seize one of such bags, and that the defendant and Clark attempted to forcibly take it from him, but that no unnecessary force was used. There was no dispute but what Scott, at the time, was very seriously injured.

This was the situation at the close of all the testimony, and the case was submitted to the jury with instructions, in substance, that if they found that the testimony of the witnesses of the People was the correct version of the transaction, then it could find the defendant guilty of the'crime charged in the indictment, while, on the other hand, if the testimony of the defendant and his witnesses was true, then the defendant was entitled to an acquittal. The charge was eminently fair to both sides, as is evidenced by the fact that no exceptions were taken to it, and we should affirm this judgment were it not for the instructions given to the jury after they had entered upon their deliberations. Some time after the jury had retired, the following inquiry was sent to the court: “ Will your Honor please inform the jury that, if Mr. Schlesinger pushed Scott aside and, in doing so, he fell and received the injury, whether this can be considered an accident and not an assault ?” To which the court—the jury having returned to the court room— responded: I said to find him guilty you must find that it was wilful and wrongful.” Thereupon the ninth juror inquired : If it was done by accident ?” 'And the court answered, Oh, the law does not punish people criminally for accidents.” And again the_ ninth juror inquired: “ Supposing Scott interfered with him in his duties, and he pushed him aside and he fell ?” To which the court replied: Any unlawful touching of a person, if done wilfully and wrongfully, is an assault. If I put the tip of my finger upon you, wilfully and wrongfully, that is an assault.” While this instruction, in the abstract, was not erroneous, it was misleading and hy reason thereof may have resulted to' the great prejudice of the defendant. It did not answer the inquiry, or give the jury a correct idea of the legal principle to he applied in case they found that Scott interfered with the defendant in the discharge of his duties. The defendant, of course, not only had the right, as it was his duty, to remove the obstructions from the sidewalk, but also to keep possession of the things removed until the same had been deposited in the place provided by the city (Scott v. Mayor, 27 App. Div. 240), and-if any one interfered with him in the discharge of that duty, either in removing or in keeping possession of the things removed, he was justified in using sufficient force to prevent such interference, and the court in answering the inquiry should have so instructed the jury.

We are of the opinion, therefore, that justice requires that a new trial should be had. The judgment of conviction is, therefore, reversed, and a new trial ordered.

Van Brunt, P. J., O’Brien, Ingraham aud Hatch, JJ., concurred.

Judgment reversed and new trial ordered.  