The People of the State of New York, Respondent, v. Mark Schlesinger, Appellant

The People of the State of New York, Respondent, v. Mark Schlesinger, Appellant. Assault — charge to the jury where an inspector of the bureau of incumbrances in Hew York city is indicted for an assault, committed while he is engaged in removing goods from a sidewalk. Upon a trial under a charge of assault, it appeared that the defendant was an inspector in the bureau of incumbrances of the city of New York, and that he and another inspector had been sent to a store in which one Scott was employed for the purpose of removing and taking away whatever merchandise might be found upon the sidewalk in front of the store. The evidence for the prosecu-. tion was that as the defendant and his companion reached the store Scott was coming out with a leather traveling bag which he was taking to a factory; that the defendant and the other inspector undertook to take the bag from him, and that in the altercation which followed the assault was committed. The defendant’s evidence tended to show that as Scott came out of the store he attempted to seize one of the leather bags which the defendant was removing from the sidewalk, and was about to take it away; that the defendant and the other inspector attempted to take the bag from him, but that no unnecessary force was used. After the jury had retired they sent the following inquiry to the court: “Will your Honor please inform the jury that, if Mr. Schlesinger pushed Scott aside and, in doing so, he fell and received the injury, whether this can be considered an accident and not an assault? ’’ to which the court responded, “I said to find him guilty you must find that it was willful and wrongful.” Thereupon one of the jurors inquired, “If it was done by accident?” to which the court replied, “Oh, the law does not punish people criminally for accidents.” The juror then asked, “ Supposing Scott interfered with him in his duties, and he pushed him aside and he fell? ” to which the court replied, “ Any unlawful touching of a person, if done willfully and wrongfully, is an assault. If I put the tip of my finger upon you, willfully and wrongfully, that is an assault.” Held, that the last instruction, while correct in the abstract, was misleading, and required the reversal of a judgment of conviction; That it did not answer the inquiry or give the jury a correct idea of the principle to be applied, in case they found that Scott interfered with the defendant in the discharge of his duties; That the proper rule was that if any one interfered with the defendant in the discharge of his duties, either in removing or in keeping possession of the things removed, he was justified in using sufficient force to prevent such interference, and that the court, in answering the inquiry, should have so instructed the jury. Appeal by the defendant, Mark Schlesinger* 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, entered in the office of the clerk of .said court on the 27th day of October, 1899, upon the verdict of a jury convicting the defendant of the crime of assault in the second degree. William F. Howe, for the appellant. Howard S. Gans, for the respondent. [MAJORITY — McLaughlin, J.:] McLaughlin, J.: The defendant appeals from a judgment of conviction of the crime of assault in the second degree and for which he has been sentenced to serve a term of one year in the penitentiary. . . The facts charged in the indictment as constituting the crime for-which he has been convicted are, in substance, that on the 20th of October, 1896, he willfully and wrongfully inflicted grievous bodily harm upon one William Scott, by striking him, throwing him down, and beating him. At the trial there was a sharp conflict of testimony between the witnesses offered on the part of the People and those offered on the part of the defendant. The testimony of the witnesses on the part of the former tended to establish that at the timé stated in the indictment, the defendant, then, an inspector in the bureau of incumbrances of the city of New York, went, by the direction of his superior officer, to a trunk and leather store kept by one David A- Doyle, at Nos¡ l and 2 Yesey street, in that city, for. the purpose of removing and taking away whatever merchandise might be found in front of the store, upon-the sidewalk, in violation of certain ordinances of the city; that the defendant was accompanied by one Clark, also an inspector in the bureau of incumbrances; that as the defendant and Clark approached the store, one Scott, an employee therein, came out of the store with a leather traveling bag, which he, by the direction of his employer, was taking to a factory for the purpose of having it repaired; that as he met the defendant and Clark, they took hold of him and undertook to forcibly take the bag from him, and that in the altercation which followed, the defendant knocked Scott down, and in doing so,- or thereafter beating him, inflicted very serious injuries .upon him. While the testimony on the part of the defendant tended to establish that the latter was not the cause of, or responsible for the injuries to Scott, so far as such testimony related to Scott’s injuries, it was substantially to the effect that, as Scott came out of the store, he attempted to seize one of the leather bags which the defendant was removing from the sidewalk and was about to take away, and that in doing so he slipped and fell to the sidewalk, and in this way sustained his injuries; that he did seize one of such bags, and that the defendant and Clark attempted to forcibly take it from him, but that no unnecessary force was used. There was no dispute but what Scott, at the time, was very seriously injured. This was the situation at the close of all the testimony, and the case was submitted to the jury with instructions, in substance, that if they found that the testimony of the witnesses of the People was the correct version of the transaction, then it could find the defendant guilty of the crime charged in the indictment, while, on the other hand, if the testimony of the defendant and his witnesses was true, then the defendant was entitled to an acquittal. The charge was eminently fair to both sides, as is evidenced by the fact that no exceptions were taken to it, and we should affirm this judgment were it not for the instructions given to the jury after they had entered upon their deliberations! Some time after the jury had retired, the following inquiry was sent to the court: “ Will your Honor please inform the jury that, if Mr. ..Schlesinger pushed Scott aside and, in doing so, he fell and received the injury, whether this can be considered an accident and not an assault ? ” To which the court — the jury having returned to the courtroom — responded: “ I said to find him guilty you must find that it was willful and wrongful.” Thereupon the ninth juror inquired : If it was done by accident % ” And the court answered, “ Oh, the law does not punish people criminally for accidents.” And again the ninth juror inquired: “ Supposing Scott interfered with him in his duties, and he pushed him aside and he fell % ” To which the court replied: “ Any unlawful touching of a person, if done willfully and wrongfully, is - an assault. If I put the tip of my finger upon you, willfully and wrongfully, that is an assault.” While this instruction, in the abstract, was not erroneous, it was misleading and by reason thereof may have resulted to the great prejudice of the defendant. It did not answer the inquiry, or give the jury a correct idea of the legal principle to be applied in case they found that Scott interfered with the defendant'in the discharge of his duties. ■■ The defendant, of course, not only had the right, as it was his duty, to remove the obstructions from the sidewalk, but also to keep possession of the things removed until the same had been deposited in the place provided by the city (Scott v. Mayor, 27 App. Div. 240), and if any one interfered with him in the discharge of .that duty,, either in removing or in keeping possession of the things removed, he was justified in using sufficient force to prevent such interference, and the court in answering the inquiry, should have so instructed the jury. . We are of the opinion, therefore, that justice requires that anew trial should be had. The judgment of conviction is, therefore, reversed, and a new trial ordered. Van Brunt, P. J., O’Brien, Ingraham and Hatch, JJ. concurred. Judgment reversed and new trial ordered.