APPEAL from a judgment of the Supreme Court (ROWE, J.), held in Erie County, rendered March 22, 1954, upon a verdict convicting defendant-appellant of the crime of assault in the third degree on two counts.
Charles J. McDonough and Paul W. Beltz for appellant.
John F. Dwyer, District Attorney (George H. Metz of counsel), for respondent.
The defendant Norman Daniels appeals from a judgment of the Supreme Court, Erie County, convicting him of the crime of assault, third degree.
The appellant and his brother, James H. Daniels, were indicted in an eight-count indictment, all eight counts charging assault in the second degree. All charges arose out of a fight with three Buffalo police officers which occurred in the early morning of October 10, 1953.
Counts one, two and seven charged violation of subdivision 5 of section 242 of the Penal Law, viz., assault in the second degree 'with intent * * * to prevent or resist * * * the lawful apprehension or detention of himself,' by three police officers. Counts three, four, five, six and eight charged assault in the second degree in violation of subdivision 3 of section 242 viz., an assault which 'Wilfully and wrongfully wounds or inflicts grievous bodily harm upon another, either with or without a weapon;' upon three police officers. The appellant Norman Daniels was named in counts one, two, three, seven and eight. Count three was dismissed by the trial court. Appellant was acquitted of the second count, which charged assault
on officer Hahn in resisting lawful arrest. He was also acquitted of assault in the second degree upon officer Rapp under the eighth count, which charged him with striking and kicking officer Rapp and inflicting grievous bodily harm upon him. Appellant was convicted of assault in the third degree under the first and seventh counts, which charged assault upon officers Moslow and Rapp in resisting lawful arrest.
These are the facts. It appears that the appellant and his brother James Daniels shortly after 3:30 A.M. of the morning of October 10, 1953, entered a restaurant located on the south side of Broadway just east of Michigan where they had sandwiches and coffee. The restaurant is open all night but does not sell alcoholic beverages. While defendants were in the restaurant, officers Moslow and Hahn, both in uniform, came into the restaurant and passed by the counter where the defendant and his brother were seated and entered the kitchen where, according to the officers, they each had a cup of coffee. The officers then left and shortly thereafter appellant and his brother came out of the restaurant. After leaving the restaurant the two officers walked to the southeast corner of Broadway and Michigan where they were standing when the appellant and his brother came out of the restaurant.
It is the story of officers Moslow and Hahn that while they were standing on the corner, an automobile stopped and a woman passenger in the car called out the window 'Which direction to New York?' Officer Hahn stepped off the curb and out into the street and talked with the occupants of the car. It is the claim of officer Moslow that as the car pulled up or while it was standing James Daniels waved his hand at the woman in the car and said: 'Hello, honey, that's my baby' or words to that effect. Moslow claims that he reprimanded James Daniels and told him to stop annoying persons. He further testified that following his reprimand of James Daniels, his brother Norman Daniels, the appellant herein, came over to him, placed his hands upon the officer's arm and said: 'Don't lock my brother up.' It is very evident what prompted the remark. Norman was concerned because his brother had been convicted of assault with a weapon while in the Army. Moslow claims that he told the defendant Norman Daniels that he had no intention of locking his brother up but that he should not annoy persons. Following that statement, appellant, according to Moslow's version, replied: 'Well, why don't you lock us up? A couple of clowns aren't going to arrest us.' Thereupon officer Moslow placed appellant under arrest by taking hold of
his arm and informing him that he was under arrest. The statement attributed to the defendant by the officer makes no sense in the face of the officer's prior statement that he had ...