A private person is permitted by law, without warrant, to arrest and take before a magistrate one who hás committed a felony. (1 Chitty Cr. L., 15, 16 ; 1 Hale P. C., 587, 588 ; Barb. Cr. L., 550 ; Holley v. Mix, 3 Wend., 350 ; 2 Hawk. P. C., 118-120); but for mere misdemeanors, after their commission, an arrest can only be' made upon a warrant from a magistrate. (2 Hawk. P. C., 121, 122; Philips v. Trull, 11 Johns., 486; Barb. Cr. L. 551.)
By the common law the crime of petit larceny is a felony. (1 Hale P. C., 530; 1 Hawk. P. C., 146.) It was supposed by the court below that the Revised Statutes have reduced the offence to a misdemeanor. There are only two provisions of the Statutes which have a bearing on the question. By 2 R. S. (p. 690, § 1), it is declared “that every person who shall be convicted of stealing, taking and carrying away the personal property of another, of the value of twenty-five dollars or under, shall be adjudged guilty of petit larceny.” Section thirty (p. 702) provides that “ the term felony, when used in this act or in any other statute, shall be construed to mean an offence for which the offender, on conviction, shall be liable by law to be punished by death or by imprisonment in a state prison.” It will be observed that the definition of the latter section applies only when the word is used in a statute; and that the former section does not use the word, and is silent as to the grade of petit larceny. The common *255law rule, that petit larceny is a felony, therefore, appears to be untouched, and to remain in force in respect to all questions controlled solely by the common law. (Ward v. The People, 3 Hill, 395; Carpenter v. Nixon, 5 id., 260; Ward v. The People, 6 id., 144.)
It follows, that the evidence offered, that Connors had committed petit larceny, and that the alleged assault and battery by the defendant consisted in arresting Connors therefor without process and delivering him to a public officer, should have been received, and would have constituted a complete defence to the indictment.
It is unnecessary to consider whether the declaring, by statute, the offence of petit larceny to be less than felony, would, without anything more, abrogate the rule of the common law as to the right of a private person, without warrant, to arrest for that crime.
Conviction reversed and proceedings remitted lor a new trial.