People v. Barber

26 N.Y.S. 417, 9 N.Y. Crim. 23, 56 St. Rep. 304, 56 N.Y. St. Rep. 304, 74 Hun 368

Opinion

HERRICK, J.

It seems to me that the indictment sets forth an offense under section 218 of the Penal Code.¹ The evidence shows that the defendant was committing an offense under section 448 of the Penal Code. The person who made the arrest, and whom the defendant assaulted, was a constable, and the defendant’s offense was committed in his presence. Under section 177 of the Code of Criminal Procedure, a constable had authority to arrest him for such offense without a warrant. The judgment should therefore be affirmed. I see no occasion for an opinion. All concur.

Footnotes

1

Pen. Code, § 218, provides as follows: “A person who, under circumstances not amounting to the crime specified in the last section, [assault in the first degree,] * * * (5) assaults another with intent to commit a felony, or' to prevent or resist the execution of any lawful process or mandate of any court or officer, or the lawful apprehension or detention of himself, or of another person, is guilty of assault in the second degree.”