
    People v. Murray.
    
      (Supreme Court, General Term, First Department.
    
    November 7, 1889.)
    1. Disobdebly Conduct—Questions eob the Juey.
    Where the evidence shows that defendant ran through the streets with an open knife in his hand, it is for the jury to say, from all the circumstances, whether his-conduct was disorderly within Laws N. Y. 1882, c.410, § 1458, (consolidation act,)providing that “ every person in New York city who shall use any threatening behavior, with intent to provoke a breach of the peace, or whereby a breach of the peace maybe occasioned, shall be guilty of disorderly conduct. ”
    2. Police Officees—Abbest without Wabbant—Assault.
    Police officers of New York city are authorized by Laws 1882, c. 410, § 277, to-arrest without a warrant any person who in their presence commits an offense prohibited by the laws of the state or ordinances of the city; and one who resists arrest in such cases by striking at the officer with an open knife, commits an assault in the second degree, within the meaning of Pen. Code, § 218, subd. 4, defining it to-be “ willfully and wrongfully assaulting another with a weapon or other instrument likely to produce grievous bodily harm. ”
    8. Resisting Unlawful Abbest—Assault.
    In resisting the attempt of an officer, with open hands, to arrest him, defendant was not justified in using greater force than was necessary to avoid arrest; and for-striking at the officer with an open knife he is guilty of an assault, though the-attempted arrest'was unlawful.
    Appeal from court of general sessions, New York county.
    The defendant Joseph Murray was indicted for assault, the indictment containing two counts, one for assault in the first and one in the second degree. Defendant was convicted on the second count, and appeals.
    Argued before "Van Brunt, P. J., and Daniels and Barrett, JJ.
    
      Purdy & McLaughlin, for appellant. John li. Fellows, Dist. Atty., for the People.
   Barrett, J.

Murray’s case clearly came within the fourth subdivision of section 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 jackknife in his hands. The handle of this knife was-about two and one-half inches Iong, 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, c. 410) declares that every person in the city of New 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 (section 277) the members of the police force are authorized to arrest, without warrant, any person who shall commit, or threaten or attempt to commit, in the presence of such member, or within his view, any breach of the peace or offense 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 section 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 otlicer. It is equally true that he may lawfully hold in his hand an open jackknife. 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 uncontradicted, 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 apure 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 readied 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 jackknife 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 knife, 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. All concur.  