#### The People of the State of New York, Plaintiff, *v.*Harry Marks, Defendant.

(Court of General Sessions of the Peace in and for the City and County of New York,

January, 1912.)

Criminal law — Offenses and grades thereof — Punishment of crime—Extent and power of courts to impose punishment.

Sections 1692 and 1696 of the Penal Law, read together, provide a complete scheme for the punishment of a person who rescues a prisoner held in lawful custody, etc., and for the punishment of one who aids and assists a prisoner under arrest in escaping or attempting to escape.

Upon evidence before the grand jury that a police officer had in lawful custody upon a charge of felony one who lie had reasonable cause to believe had committed the crime; that his prisoner attempted to escape and that defendant attempted to rescue him (from the police officer, defendant is indictable under bo°th sections 1692 and 1696 of the Penal Law, and, there being sufficient legal evidence to bring defendant’s acts within said section 16-92, the failure to include a count under the other section does not vitiate the indictment.

Motion to set aside an indictment.

Charles G. F. Wable, for motion.

•James A. Delehanty, opposed.

Eosalsky, J.

The indictment charges the defendant with the crime of an attempt to commit the crime of rescuing by force a prisoner, from a person having him in lawful custody upon a charge and arrest for felony.

Section 1692 of the Penal Law provides as follows: *“A*person who, by force or fraud, rescues a prisoner from lawful custody, or from an officer or other person having him in lawful custody, is guilty of a felony, if the prisoner was held upon a charge, commitment, arrest, conviction, or sentence of felony; and if the prisoner was held upon a charge, arrest, commitment, conviction, or sentence for misdemeanor, the rescuer is guilty of a misdemeanor.”

*405The learned counsel for the defendant contends that this section relates only to a case where a prisoner has been held by a magistrate or other lawful authority upon a “ charge, commitment, arrest, conviction, or sentence,” and that, as the evidence before the grand jury fails to show thaf the defendant attempted to rescue a prisoner who was so held, the indictment should be set aside.

There is no force in this contention for the reason that, if a prisoner had been rescued from an officer who held him under lawful arrest upon a charge of felony, prior to his arraignment before a magistrate, there would be no prisoner to be arraigned for the purpose of determining whether he should be held upon any charge. To adopt the construction urged by counsel for the defendant would result in the immunity from prosecution and punishment of a person who rescued a prisoner from an officer who held him under lawful arrest upon a charge of felony or misdemeanor.

It is obvious that, under section 1692, provision is made for the punishment of a person who rescues by force or fraud a prisoner from an officer or other person who holds him under lawful arrest upon a charge of felony or misdemeanor prior to his arraignment before a magistrate or other lawful authority, and also that provision is made for the punishment of a person who rescues by force or fraud a prisoner from an officer or other person who holds him under lawful custody after he was held by a magistrate or other lawful authority upon a commitment, sentence or conviction.

The terms *“*charge, commitment, arrest, conviction, or sentence,” used in the statute, have a peculiar signification. The terms “ charge and arrest ” relate to a case where an officer or other person holds a prisoner under lawful custody upon a charge of or arrest for a felony or misdemeanor, and the terms *“*commitment, conviction and sentence ” relate to a case where an officer or other person holds a prisoner under lawful custody after he-was judicially held under a commitment, conviction or sentence for a felony .or misdemeanor.

Furthermore, the foregoing terms are in the disjunctive; and,, therefore, it must follow thát, if a person by force or fraud rescues a prisoner from lawful custody, or from an *406officer or other person having him in lawful custody, such person is guilty of a crime if the prisoner was held (a) upon a charge; (b) commitment; (c) arrest; (d) conviction or (e) sentence.

The circumstances under which the defendant attempted to rescue the prisoner do not bring his conduct within the purview of section 2 of the Penal Law, defining an accessory to a felony; and it is, therefore, ■ unnecessary to .discuss its applicability to the case under consideration.

Defendant’s counsel argues that the defendant should have been indicted under section 1696 of the Penal Law, which relates to a case where a person aids or assists a prisoner in escaping or attempting to escape from the lawful custody of an officer under circumstances where the prisoner is held under arrest upon a charge of felony or misdemeanor. When sections. 1692 and 1696 of the Penal Law are read together, it will be found that the Legislature provided a complete scheme for the punishment of a person who rescues a prisoner who was held in lawful custody, etc.- (Penal Law, § 1692) and for the punishment of one who aids and assists a prisoner who is held under arrest in escaping or attempting to escape from the lawful custody, etc. Penal Law, § 1696. It will be observed that, under section 1692, it is not necessary that-the prisoner who was held in lawful custody, etc., should abet the rescuer in effecting or attempting to effect his rescue; while, under section 1696, it is essential that the prisoner in custody should himself attempt to escape, and the person who aids him or assists him in so doing is guilty of the crime of aiding an escape and not attempting to rescue a prisoner. It might well be, where the evidence shows that a prisoner in custody aids or assists a person to rescue him, that the indictment should charge such person, in separate counts, with the crime of an attempt to commit the crime of rescuing a prisoner and the crime of aiding and assisting a prisoner to escape.

The evidence before the grand jury clearly shows that the police officer had one Moran in lawful custody upon a charge of felony; that the officer had reasonable cause for believing Moran to have committed it; that Moran attempted to escape, *407and that the defendant attempted to rescue Moran from the lawful custody of the police officer. Upon this evidence the grand jury could have indicted the defendant under both sections 1692 .and 1696 of the Penal Law. There, is, however, sufficient legal evidence to bring the defendant’s acts within section 1692; and the failure of the pleader to include in the indictment a count under section 1696 does not vitiate the legality of the indictment found under the former section.

The motion to set aside the indictment should, therefore, be denied.

Motion denied.