People v. Fein
147 N.Y.S. 966
N.Y. App. Div.
1914
Check Treatment
Dowling, J.:

We are satisfied upon this record that the complaining witness, Sergeant Sheridan, was assaulted by the defendant in the manner described by the complainant; but the only testimony which indicates the nature of the assault made upon him is that the defendant struck Sheridan in the ear. Concededly, there was no weapon in the defendant’s hand at the time. There is an absence of any proof that the complainant was wounded in anyway; or that blood was caused to flow; or that the skin was broken; or that any injury whatever was caused to him thereby; or that severe pain was inflicted; or even that the blow itself was a severe.one. The defendant has been convicted of assault in the second degree under subdivision 3 of section 242 of the Penal Law, which renders hable for assault in the second degree one who “wilfully and wrongfully wounds *766or inflicts grievous bodily harm upon another, either with or without a weapon.” While the defendant was proven guilty of an assault, the testimony fails to disclose the presence of the necessary element of wounding pr inflicting grievous bodily harm. It was, therefore, an assault in the third degree only (Penal Law, § 244), and the defendant’s conviction of the higher grade of crime cannot be sustained. Against the conclusion thus reached the district attorney has found himself unable to present any argument.

The judgment of conviction will, therefore, be reversed and a new trial ordered.

Ingraham, P. J., McLaughlin, Laughlin and Hotchkiss, JJ., concurred.

Judgment reversed and new trial ordered. Order to be settled on notice.