PART II. OF THE PREVENTION OF CRIME. TITLE I. OF LAWFUL RESISTANCE. IL OF THE INTERVENTION OF THE OFFICERS OF JUSTICE. TITLE I. OF LAWFUL RESISTANCE. CHAPTER I. General provisions respecting lawful resistance. CHAPTER I. GENERAL PROVISIONS RESPECTING LAWFUL RESISTANCE. SECTION 79. Lawful resistance; by whom made. § 79. Lawful resistance, etc.-Lawful resistance to the com mission of a crime may be made: 1. By the party about to be injured; 2. By other parties. See section 26 of Penal Code and note. CHAPTER II. RESISTANCE BY THE PARTY ABOUT TO BE INJURED. SECTION 80. In what cases; to what extent. § 80. In what cases; to what extent.-Resistance sufficient to prevent the crime may be made by the party about to be injured: 1. To prevent a crime against his person; 2. To prevent an illegal attempt by force to take or injure property in his lawful possession. See section 26 of Penal Code and note. Self-defense.-What it is necessary to show, to authorize a person to use a weapon in self-defense. Evers v. People, 3 Hun, 716; aff'd, 63 N. Y., 625. As to when the right of self-defense may be rightfully exercised to the extent of taking human life, see People v. Minisci, 12 St. Rep., 719. The right of attack for the purpose of defense does not arise until the accused has done everything in his power to avoid the necessity. People v. Sullivan, 7 N. Y., 396. When party, who is attacked, may kill his assailant. People v. Shorter, 2 N. Y., 193. This principle will not justify one in returning blows with a dangerous weapon when he is struck with the naked hand, if there is no reason to apprehend a design to do him great bodily harm. Id. Nor will it justify homicide, when the combat can be avoided, or where, after it is begun, the party can withdraw from it in safety before he kills his adversary. Id. The prisoner, in order to justify the homicide, must establish, beyond a reasonable doubt, that he did apprehend, and had reason to apprehend, that he was in imminent danger of his life, or of the infliction of some great personal injury. Patterson v. People, 46 Barb., 625. This case was overruled in People v. Schryver, 42 N. Y., 1, 8, as to the point that the prisoner was bound to prove his justification beyond a reasonable doubt. There must be a reasonable ground for the prisoner's belief. People v. Lamb, 54 Barb., 342; aff'd, 2 Abb. N. S., 148; 2 Keyes, 360. In such case, it is immaterial whether his impressions were, or were not, correct. Id. The fact that the accused did in fact entertain an apprehension of great personal injury, is not sufficient; the jury must reach the conviction that there was reasonable ground for such apprehension. People v. Austin, 1 Park., 154. See also People v. Cole, 4 Park., 35; Pfomer v. People, 4 Id., 558; Uhl v. People, 5 Id., 410. Defense of property.—The owner of property, if in rightful possession, is justified in using all necessary force to defend such possession. Corey v. People, 45 Barb., 262; Gyre v. Culver, 47 Id., 592. To prevent felony.-For the amount of force a party may use to prevent the consummation of a felony, see Ruloff v. People, 45 N. Y., 213. CHAPTER III. RESISTANCE BY OTHER PARTIES. SECTION 81. In what cases. § 81. In what cases.-Any other person, in aid or defense of the person about to be injured, may make resistance sufficient to prevent the injury. See section 26 of Penal Code and note. TITLE II. OF THE INTERVENTION OF THE OFFICERS OF JUSTICE. CHAPTER I. Intervention of public officers in general. II. Security to keep the peace. III. Police in cities and villages, and their attendance at exposed places. IV. Prevention and suppression of riots. SECTION 82. In what case. 83. Persons acting in their aid, justified. § 82. In what cases.-Crimes may be prevented by the intervention of the officers of justice: 1. By requiring security to keep the peace; 2. By forming a police in cities and villages, and by requiring their attendance in exposed places; 3. By suppressing riots. See sections 84-101; 102-117, post. § 83. Persons acting in their aid, justified.-When the officers of justice are authorized to act in the prevention of crime, other persons, who by their command act in their aid, are justified in so doing. See subd. 1, section 223, of Penal Code. CHAPTER II. SECURITY TO KEEP THE PEACE. SECTION 84. Information of threatened crime. 87. Proceedings, on complaint being controverted. 91. Person committed for not giving security, how discharged. 92. Undertaking to be transmitted to county court. 93. Security, when required, for assault, etc., in presence of a court or magistrate. 94. Appearance of party bound, etc. 95. Person bound, may be discharged, if complainant does not appear. 96. Proceedings in sessions, on appearance of both parties. 97. Undertaking, when broken. 98. Undertaking, when and how to be prosecuted. 99. Security for the peace not required except according to this chapter. § 84. Information of threatened crime.-An information may be laid before any magistrate that a person has threatened to commit a crime against the person or property of another. Complaint.-No form is prescribed for the complaint. Bradstreet v. Furgeson, 17 Wend., 181. On an application to a magistrate for sureties of the peace, there must be a formal complaint in writing and upon oath, besides the examination in writing, to justify the issuing of a warrant. Bradstreet v. Furgeson, 23 Wend., 638. It is not enough that the complaint is embraced in the examination. Id. See Wright v. Church, 18 St. Rep., 868; 110 N. Y., 463. The recital, in the warrant, of a verified written complaint is prima facie evidence of such fact, but may be rebutted by affirmative evidence. Bradstreet v. Furgeson, 23 Wend., 638. §85. Examination of complainant and witnesses.-When the information is laid before a magistrate, he must examine on oath the complainant and any witnesses he may produce, and must reduce their examinations to writing, and cause them to be subscribed by the parties making them. Examination.-This section does not prescribe any particular form, in which the examination shall be reduced to writing. Bradstreet v. Furgeson, 17 Wend., 181. If good in substance, it is sufficient. Id. The written examination must or should always contain substantially the matter set forth in the complaint. Id. § 86. Warrant of arrest.-If it appear from such examinations that there is just reason to fear the commission of the crime threatened, by the person complained of, the magistrate must issue a warrant, directed generally to the sheriff of the county, or any constable, marshal or policeman of the city or town, reciting the substance of the information, and commanding the officer forthwith to arrest the person complained of, and bring him before the magistrate. It is not necessary that the warrant should contain a formal adjudication that there is reason to fear the commission of the offense threatened. Bradstreet v. Furgeson, 17 Wend., 181. §87. Proceedings on complaint being controverted.-When the person complained of is brought before the magistrate, if the charge be controverted, the magistrate must take testimony in relation thereto. The evidence must be reduced to writing, and subscribed by the witnesses. By this and the next section, the law as it existed under the Revised Statutes has been changed, and the magistrate may now proceed to examine the charge, and determine upon evidence whether it is, or is not, well founded; and if not, may discharge the defendant. People v. Boyle, 2 N. Y. Cr., 54. $88. Person complained of, when to be discharged.-If it appear that there is no just reason to fear the commission of the crime alleged to have been threatened, the person complained of must be discharged. § 89. Security to keep the peace, when required.-If, however, there be just reason to fear the commission of the crime, the person complained of may be required to enter into an undertaking, in such sum, not exceeding one thousand dollars, as the magistrate may direct, with one or more sufficient sureties, to abide the order of the next county court of the county. held for the trial of indictments, and in the meantime to keep the peace toward the people of this state, and particularly toward the complainant. In effect Sept. 1, 1897. Discharge.-Sections 84-99 do not confer any express authority upon the court of sessions of the county of New York to discharge a prisoner, who has been committed by the magistrate in default of the undertaking required by this section. People v. Doyle, 2 N. Y. Cr., 54. Where a person has given an undertaking under this section, the court of sessions of the city and county of New York has, it seems, jurisdiction to discharge him under certain circumstances. Id. $90. Effect of giving or refusing to give security.-If the undertaking required by the last section be given, the party complained of must be discharged. If it is not given, the magistrate must commit him to prison, specifying in the warrant the cause of commitment, the amount of security required, and the omission to give the same. A warrant of commitment, issued under this section, is valid without any seal affixed. Gano v. Hall, 42 N. Y., 67; 5 Park., 651. See Wright v. Church, 18 St. Rep., 868; 110 N. Y., 463. § 91. Person committed for not giving security, how discharged. If the person complained of be committed for not giving security, he may be discharged by any two justices of the peace of the county, or police or special justices of the city, upon giving the security. § 92. Undertaking, to be transmitted to county court.— An undertaking given as provided in section 89, must be transmitted by the magistrate to the next term of the county court of the county. Am'd by chap. 880 of 1895. In effect January 1, 1896. $93. Security, when required, for assault, etc., in presence of court or magistrate.-A person who, in presence of a court or magistrate, assaults or threatens to assault another, or to commit a crime against his person or property, or who contends with another in angry words, may be thereupon ordered by the court or magistrate to give security as provided in section 89, or if he refuses to do so, may be committed as provided in section 90. See section 182, post. A magistrate, under this section, may commit, in default of his giving security to keep the peace, a person who, in his presence, makes any affray or threatens to kill or beat another, etc., within twenty-four hours after he has witnessed the affray, without other evidence than his own senses furnished him. Sands v. Benedict, 2 Hun, 479. 94. Appearance of party bound, etc.-A person who has entered into an undertaking to keep the peace must appear on the first day of the next term of the county court of the county. If he do not, the court may forfeit his undertaking, and order it to be prosecuted, unless his default be excused. Am'd by chap. 880 of 1895. In effect January 1, 1896. § 95. Person bound may be discharged, if complainant does not appear.-If the complainant do not appear, the person complained of may be discharged, unless good cause to the contrary be shown. 96. Proceedings, in session, on appearance of both parties. If both parties appear, the court may hear their proofs and allegations, and may either discharge the undertaking, or require a new one, for a time not exceeding one year. § 97. Undertaking, when broken.-An undertaking to keep the peace is broken, on the failure of the person complained of to appear at the county court, as provided in section 94, or upon his being convicted of any crimes involving a breach of the peace. Am'd by chap. 880 of 1895. In effect January 1, 1896. § 98. Undertaking, when and how prosecuted. Upon the district attorney producing evidence of such conviction to the county court to which the undertaking is returned, that court must order the undertaking to be prosecuted; and the district attorney must thereupon commence an action upon it in the name of the people of this state. Am'd by chap. 880 of 1895. In effect January 1, 1896. § 99. Security for the peace not required except according to this chapter.-Security to keep the peace or be of good behavior cannot be required, except as prescribed in this chapter. Power of police justice.-The language of this section, standing |