The conviction was for the crime of resisting an officer while "in the performance of his duty," under section 1825 of the Penal Law. The arrest of the prisoner was for the commission of a misdemeanor. *Page 474 This crime had not been committed in the presence of the arresting officer; nor did the officer hold a warrant for the arrest. Therefore, the arrest was illegally made; the officer had no right to search the prisoner; the prisoner did not resist an officer in the performance of any duty; and no crime was committed.
The judgments should be reversed and the information dismissed.
CARDOZO, Ch. J., POUND, CRANE, LEHMAN, KELLOGG, O'BRIEN and HUBBS, JJ., concur.
Judgments reversed, etc.