
    
      Supreme Court—Appellate Division—Third Department.
    December 2, 1896.
    PEOPLE v. WILLIAM DOYLE.
    (76 S. R. 319.)
    1. Criminal law—Discretion—Withdrawal of plea of ■ not guilty.
    Question whether the defendant should be allowed to withdraw bis plea of not guilty, in order that he may make a motion to set. aside the indictment on the ground that there were more persons acting on the grand jury than were entitled to act, is in the discretion of the court.
    2. Same—Appeal—Harmless error.
    Error, if any, in the refusal of the court to rule that, under the indictment, the defendant can only he placed on trial for an assault in the third degree, is harmless, where the conviction was only-for assault in the third degree.
    3. Same—Arrest without warrant.
    Intoxication in a public place is an offense which permits an ar- < rest without warrant and is a crime.
    
      
      4. Same—Instruction.
    Refusal to charge that, if the policeman was using more forcé on a prisoner than was necessary to make the arrest, the defendant was justified in stopping him from using that greater force, is proper, where the interference of defendant was not for the purpose of preventing the use of unnecessary force but to prevent the arrest.
    Appeal from a judgment, convicting defendant of assault in the third degree.
    H. A. Peckham, for appellant.
    Eugene Burlingame, Dist. Atty., and John T. Cook, Asst. Dist. Atty., for the People.
   MERWIN, J.

The defendant claims the court erred in refusing to allow the defendant to withdraw his plea of not guilty, in order that he might make a motion to set aside the indictment on the ground that there were more persons acting on the grand jury than were entitled to act. The question whether the defendant should have the leave asked for was in the discretion of the court. No reason for granting it is disclosed by the record. It is suggested that the defendant, at his arraignment, did not have counsel, but that does not appear. We cannot say that the court erred, or improperly exercised its discretion. j

Error is claimed in the refusal of the court to rule that under the indictment the defendant could only be placed on trial for an assault in the third degree. The argument is that the indictment does not state facts showing that the officer was in the lawful discharge of his duties. It is not clear that the indictment is defective. People v. Barber, 74 Hun, 368; 26 N. Y. Supp. 417. As, however, the conviction was only for assault in the third degree, it is not apparent that the defendant was harmed by the ruling, if erroneous.

Error is claimed in that the court, in its charge, stated that, if the arrest of Hughes was illegal, no person had a right to resist the officer except the party who is illegally arrested, and •upon request refused to charge that, if Police Officer Ford had no right to arrest Hughes, then it was no crime to resist the policeman; and also refused to 'charge that, if the policeman was using more force on Hughes than was necessary to make the arrest, Doyle was justified in stopping him from using that greater force. On the part of the people it was shown that Hughes was intoxicated, in a public place. This was an offense which permitted his arrest without warrant (Laws 1892, chap. 401, § 35), and was a crime, as held in People v. French, 102 N. Y. 583; 7 N. E. 913. The fact that Hughes was intoxicated was not denied by the defendant when on the stand as a witness. On the contrary, his evidence tends to corroborate the evidence of the people on that subject. Assuming, as I think we should, that Hughes was intoxicated, then Ford had the right to arrest him. Code Cr. Proc., §§ 154, 177. If so, then the remarks complained of in the charge of the court, and the refusal of the request first stated, become unimportant, and do not affect the merits of the case, although the court may not have been strictly accurate in the law laid down.

The other request complained of assumes that Doyle was in the act of stopping Ford from using greater force than was necessary to arrest Hughes. On the contrary, upon the undisputed evidence it is quite apparent that the interference of Doyle was not for the purpose of preventing the use on Hughes of unnecessary force, but to prevent his arrest at all. If so, the defendant was not entitled to the request asked, even though, in a proper case, it was a correct legal proposition. In a case like this we are required to give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties. Code Cr. Proc., § 542. Having this in view, the judgment should be affirmed.

Judgment of conviction affirmed.

All concur.

NOTE ON “WITHDRAWAL OF PLEA OF NOT GUILTY.”

Where the plea of “not guilty” is interposed, and subsequently the plea of former conviction is put in without withdrawing the prior defense, both pleas stand upon the record and form separate issues of fact to be disposed of in the same trial and before the same jury. People v. Connor, 65 Hun, 392: 48 S. R. 28; 8 N. Y. Cr. 443.

But, where the pleas of not guilty and of former judgment are separately interposed, it is not the intention of the statute that they should he both tried by the same jury. People v. Trimble, 60 Hun, 366; 38 S. R. 998; 15 Supp. 60; aff’d, 131 N. Y. 121; 42 S. R. 717.  