(dissenting). The sole question presented for our consideration is whether the facts in this record establish the crimes of coercing another person and of oppression committed under color of official right as defined in sections 530 and 854 of the Penal Law and as charged in the informations upon which the defendant was tried in the Court of Special Sessions. In reaching our conclusion we disregard, of course, the character *80of the complainant and the defense interposed by the defendant. We accept as the basis for our conclusion that there is no support in the record for conviction of the two crimes with which the defendant was charged, the following well-chosen words and fair statement in the opinion of Judge Lewis of the facts leading up to the time when the complainant was charged with felonious assault in the Felony Court: “In the early morning hours of July 27, 1949, the defendant and a fellow police officer, while patrolling Second Avenue, came upon an illegally parked motor truck in which they found the complainant, William Howell, asleep. When the officers laid hands upon him and roused him from his sleep he failed at the time to identify the intruders as police officers and stoutly resisted their efforts to remove him from his truck. A scuffle ensued and came to an end only when the complainant’s resistance had been overcome. He was then arrested and taken to a police precinct station Avhere he was charged with felonious assault.” We shall only add the further statement from Judge Lewis’ opinion reading:1 ‘ Upon Howell’s [the complainant] arraignment he Avas charged with felonious assault.”
We now turn to section 530 of the Penal Law Avhich provides, insofar as applicable, that:
“ A person who with a view to compel another person to do or to abstain from doing an act which such other person has a legal right to do or to abstain from doing, wrongfully and unlawfully, * * *
“ 3. Uses or attempts the intimidatión of such person by threats or force,'
11 Is guilty of a misdemeanor. ’ ’
The information filed under that section charged that the defendant on July 27, 1949: 61 unlawfully and wrongfully did use and attempt the intimidation of the said William Howell by threats and force with a view to compel him, the said William Howell, to do an act which he, the said William Howell, had a legal right to abstain from doing, to wit, to compel him, the said William Howell, to pay and give him, the said defendant, the sum of $40.00 in United States currency. ”
In other words the defendant was charged with intimidating the complainant into giAÚng to the defendant $40 in currency *81as a bribe or as a payment for the commission of perjury by the defendant in changing his testimony so that it would be made to appear to the Magistrate that it was a case involving a question of mistaken identity rather than one of felonious assault. The complainant Howell not only as the information quaintly phrases it had “ a legal right to abstain from doing ” the act of paying and giving the defendant the sum of $40 in United States currency but the absolute duty as a citizen of abstaining, from doing it since by its doing the complainant became a briber (Penal Law, § 371) and a suborner of perjury. That was not the crime of ‘ ‘ Coercing another person ’ ’ by the defendant as defined in section 530 of the Penal Law.
We.now turn to section 854 of the Penal Law. Insofar ais applicable here it reads as follows:
. “ Oppression committed under color op official right. A public officer, or a person pretending to be such, who, unlawfully and maliciously, under pretense or color of official authority:
“ 1. Arrests another, or detains him against his will; or
“ 4. Does any other act, whereby another person is injured in his person, property, or rights,
“ Commits oppression and is guilty of a misdemeanor ”.
(By L. 1945, ch. 486, the title “ Extortion ” was changed to “Oppression”.)
The information, of course, did not charge a violation of subdivision 1 because it is not questioned that the complainant was lawfully arrested and charged with felonious assault.
The information charging the crime of oppression as just defined by section 854 charged that the defendant, a police officer, on July 27, 1949: “ unlawfully and maliciously, under pretense and color of official authority, did an act whereby one William Howell was injured in his person, property and rights, to wit, defendant obtained $40.00 in United States currency from the said William Howell. ’ ’
In other words it was there charged that the defendant, a police officer, unlawfully and maliciously under pretense or color of official authority injured the complainant in his person, property and rights by obtaining from him $40 in United States cur*82rency as a bribe or payment for the changing of his testimony and the commission by him of perjury. That is not and never, was either extortion or oppression committed under color of official right.
According to the theory of the prosecution, therefore, it is necessary for it first to establish that the defendant as a police officer properly arrested the complainant, properly charged him with felonious assault and that, in his affidavit in the Magistrate’s Court, the Felony Court, the defendant correctly made affidavit as to the facts as to the felonious assault. The affidavit in the Felony Court is before us as an exhibit. Establishing those facts to the satisfaction of a court or jury beyond a reasonable doubt makes clear that in the arrest and charging of the crime of felonious assault against Howell there was neither coercion nor oppression. With these indisputable facts as a foundation, the People have urged upon the Appellate Division and upon us that the subsequent acceptance of $40 by the defendant for the changing of his testimony so as to have the charge against Howell reduced to disorderly conduct (to which Howell pleaded guilty) constitutes coercion and oppression. Such acts by the defendant, assuming the truth of the testimony against him, quite clearly constitute the crime of bribery (Penal Law, §§ 372, 379), or of taking an unlawful fee (Penal Law, § 1826) or of perjury, but not of coercion or oppression. Such acts, indeed, were the antithesis of coercion or oppression.
There are no common-law crimes in this State but only those denominated such by the Legislature. The Legislature has provided under chapter headings in the Penal Law various categories of crimes. It is clear, it seems to us, from the chapter headings and the sections with their respective headings, the acts which the Legislature intended to make crimes under appropriate circumstances. The Penal Law and its predecessor, the Penal Code, are more than a century old and until now, no prosecutor has charged the acts here set forth — following, as they do, a proper arrest and a proper charge of crime both in the police station house and the Magistrate’s Court- — to be either coercion, extortion or oppression. In our judgment we should not so construe sections 530 and 854 of the Penal Law as *83to permit it at this late date when the statutes have been practically construed by prosecuting officers to the contrary for so long a period.
The order of the Appellate Division should be affirmed.
Loughban, Ch. J., Desmond and Dye, JJ., concur with Lewis, J.; Conway, J., dissents in opinion in which Fuld and Fboessel, JJ., concur.
Order reversed, etc.