
    The People of the State of New York, Respondent, v. Benjamin Fein, Appellant.
    First Department,
    May 29, 1914.
    Crime — assault, second degree —blow not shown to have caused bodily harm. •
    A defendant cannot be convicted of assault in the second degree, under subdivision 3 of section 343 of the Penal Law, where the proof is that, having no weapon, he merely struck the complainant without wounding him, or causing blood to flow, or breaking the skin, or causing any injury, or that severe pain was inflicted, etc. Proof that the defendant wounded or inflicted grievous bodily harm upon another was necessary to a conviction.
    
      It seems, however, that the defendant might have been convicted of assault in the third degree.
    Appeal by the defendant, Benjamin Fein, from a judgment of the Court of General Sessions of the Peace of the county of New York, rendered against him on the 23d day of January, 1914, convicting him of the crime of assault in the second degree.
    
      Charles G. F. Wahle, for the appellant.
    
      Robert C. Taylor, for the respondent.
   Dowling, J.:

We are satisfied upon this record that the complaining witness, Sergeant Sheridan, was assaulted by the defendant in the manner described by the complainant; but the only testimony which indicates the nature of the assault made upon him is that the defendant struck Sheridan in the ear. Concededly, there was no weapon in the defendant’s hand at the time. There is an absence of any proof that the complainant was wounded in anyway; or that blood was caused to flow; or that the skin was broken; or that any injury whatever was caused to him thereby; or that severe pain was inflicted; or even that the blow itself was a severe.one. The defendant has been convicted of assault in the second degree under subdivision 3 of section 242 of the Penal Law, which renders hable for assault in the second degree one who “wilfully and wrongfully wounds or inflicts grievous bodily harm upon another, either with or without a weapon.” While the defendant was proven guilty of an assault, the testimony fails to disclose the presence of the necessary element of wounding pr inflicting grievous bodily harm. It was, therefore, an assault in the third degree only (Penal Law, § 244), and the defendant’s conviction of the higher grade of crime cannot be sustained. Against the conclusion thus reached the district attorney has found himself unable to present any argument.

The judgment of conviction will, therefore, be reversed and a new trial ordered.

Ingraham, P. J., McLaughlin, Laughlin and Hotchkiss, JJ., concurred.

Judgment reversed and new trial ordered. Order to be settled on notice.  