Summary
In People v. O'Connor (257 N.Y. 473 [1931]) the defendant had been arrested by a policeman for driving an automobile while intoxicated and for assault in the third degree.
Summary of this case from People v. FidlerOpinion
Argued September 30, 1931
Decided November 17, 1931
Appeal from the Schenectady County Court.
W.D. Smith and H.E. Blodgett for appellant.
Roy W. Peters, District Attorney ( J.W. Collamer of counsel), for respondent.
The conviction was for the crime of resisting an officer while "in the performance of his duty," under section 1825 of the Penal Law. The arrest of the prisoner was for the commission of a misdemeanor. This crime had not been committed in the presence of the arresting officer; nor did the officer hold a warrant for the arrest. Therefore, the arrest was illegally made; the officer had no right to search the prisoner; the prisoner did not resist an officer in the performance of any duty; and no crime was committed.
The judgments should be reversed and the information dismissed.
CARDOZO, Ch. J., POUND, CRANE, LEHMAN, KELLOGG, O'BRIEN and HUBBS, JJ., concur.
Judgments reversed, etc.