
    The People of the State of New York, Respondent, v. James J. O’Brien, Appellant.
    
      Assault—a peddler pushing a cart, while escaping from, arrest, struck by a poliee officer with his fist.
    
    Evidence that a police officer, from whose custody a peddler whom he had arrested for obstructing a street in violation of city ordinances was attempting to escape, upon overtaking the peddler, who was pushing a cart, struck him a blow with his fist and knocked him down, will not sustain a conviction of the police officer for assault, in the absence of evidence that the force of the blow was greater than was necessary to prevent the peddler from escaping, or that he sustained any bodily injury after he was taken into custody.
    Barrett and Rumsey, JJ., dissented.
    Appeal by the defendant, James J. O’Brien, from a judgment of the Court of General Sessions of the Peace in and for the city and county of New York in favor of the plaintiff, rendered on the 19th day of June, 1899, convicting him of the crime of assault in the third degree, and also from an order denying the defendant’s motion for a new trial.
    
      James W. Ridgway, for the appellant.
    
      Charles E. Le Barbier, for the respondent.
   Ingraham, J.:

The defendant was indicted for assault in the third degree. The person upon whom the assault was committed was not a witness. There were three witnesses called for the People who were passengers upon a Fourth avenue car in the neighborhood of Fourteenth street, in this city. They testified that they saw a peddler ¡lushing a cart towards the Washington monument, on Union square, and saw a police officer (the defendant) start to run from the south side of Fourteenth street, about forty feet from the corner of Fourth avenue; that he ran across the square after the peddler, and as he ran up to the peddler reached his left hand out, and with his-right hand struck the peddler from behind, knocking him down;, that the police officer was in uniform at the time. Neither of these witnesses testified as to anything that happened prior to the time the officer started to run from the south side of Fourteenth street, east of Fourth avenue. They averred that they saw thé peddler at the time the officer ran after him, running out into the middle of the street,- pushing his cart in front of him; that hut one blow was struck, and - that knocked the peddler down. This testimony, standing alone, unexplained, would undoubtedly have justified the submission of the case to the jury and account for the indignation shown by the witnesses against the defendant. But the testimony on behalf of the defendant, as to the occurrence prior to the appearance of these witnesses upon the scene, put an entirely different aspect upon the defendant’s action. It appeared that several peddlers, one of- whom was the person upon whom the assault was alleged to have been committed, had been persistent violators of the ordinances in obstructing Fourteenth street, east of Broadway ; that the police officer of this district, including the captain, had endeavored to clear the street and drive them away, but immediately upon the officer’s back being turned they would return to their places in the street; that on the morning in question the captain of the precinct, having received many complaints from citizens doing business on Fourteenth street, went to this locality several times and drove the peddlers away; that this particular peddler upon whom the alleged assault was committed had' been driven away a dozen times; and that within about ten minutes after the captain went away the peddler came hack; that the captain then went to the station house and instructed the defendant, who was one of the patrolmen, to go to Fourteenth street and arrest the peddlers there; to get the man on the post and make several arrests, and bring them to the station house. It further appeared that in pursuance of these orders the defendant went to Fourteenth street and arrested two men, one of whom was this peddler in question. These two men had thus been arrested in the act of violating the law, and were clearly guilty of a misdemeanor. While this officer was conducting these men under arrest to the station house, carrying out the orders of his superior officer, as he was in duty bound to do, they escaped from his custody, running in different directions, the peddler upon whom the alleged, assault was committed running uptown towards Washington monument, and the other towards Broadway. The defendant then called upon the officer on the post to arrest the one running towards Broadway, and he started after the one running towards the Washington monument.

There were several witnesses called for the defendant who saw thé occurrence. They testified that the officer did not strike the peddler, but grabbed at him, and as he reached him they both fell together; but assuming that the account of the occurrence as narrated by the witnesses for, the People was correct, as the jury were entitled to find, and that this officer, running after this escaped' prisoner, struck him with his fist when he reached him, we do not think that the officer was under such circumstances guilty of an assault. This peddler had been arrested for the commission of a crime, and was in custody when he broke away and. endeavored to escape, and it was the duty of the officer to follow and rearrest him and to use the force necessary for that purpose. There is nothing to show that the blow was excessive, or more than was necessary to stop tins prisoner endeavoring to escape from custody; and there was no evidence of bodily injury after he was taken in custody.

Those facts are proved, not only by the police officer, but by several independent and apparently disinterested witnesses, who had no apparent motive for testifying untruthfully and who were not in the slightest degree contradicted. That a police officer who is pursuing a person, who has been arrested for a crime and who is endeavoring to escape, is justified in using the necessary force to prevent the escape cannot be disputed ; and when this peddler broke away from the officer, the latter was entirely justified in pursuing and capturing him, and, if necessary, in striking him to prevent his escape. Considering the locality and the circumstances, we cannot say that this man would not-have escaped had not1 the officer used the force that he did; and under such circumstances the criminal charge of assault could not be jn-edicated upon a simple blow of the fist used to prevent an escape. A police officer in the arrest of criminals has to act on the appearances as they are presented at the time in the excitement of the moment, and to sustain this conviction would be to punish the officer for obeying the orders of his captain and for the efficient discharge of his duty, and not for the commission of a crime. ■

We think that the conviction was an injustice to the defendant, and that the judgment appealed from should be reversed.

Van Brunt, P. J., and McLaughlin, J.-, concurred; Barrett and Rumsey, JJ., dissented.

Barrett, J. (dissenting):

I think the question of fact was for the jury. The peddler could not Have been escaping when the defendant struck him. He was pushing his cart. There was no suggestion from any witness that he abandoned his cart and ran. It is difficult to see how he could have run away while holding on to his cart. His speed, when thus hampered, could not have been very great.

The jury were justified, in my judgment, in finding that the blow, under the circumstances, was unnecessary and punitive.

Bumsey, J., concurred.

Judgment reversed.  