The defendant was indicted and convicted of assault in the second degree. The alleged crime was committed in resisting one Knapp, police officer of Lansingburgh, who' attempted to arrest him for a misdemeanor not committed in the officer’s presence. A warrant had been issued and was at the time in the office of the chief' of police. It was not in the possession of the officer who made the arrest, unless being in that office it was constructively in‘his possession. The defendant knew that Knapp was a police officer and had heard that the warrant had been issued. The charge of the court was that the warrant was in the constructive possession of the officer; and the court declined to charge that it was the duty of the officer at the time of the arrest to disclose to the defendant his authority and the process under which he arrested bim. Whether the. charge was correct in these two respects-is the question.
The Code of Criminal Procedure, section 168, provides that “ an arrest may be, First, by a pe.ace officer under a warrant; Second, by a peace officer without a warrant; Third, by a. private person.” Section 177 states the cases where a peace officer may arrest without a warrant. They do not include the present case. Section 183 states the cases when a private person may arrest. They do not include the present case. This arrest must then be one made by an officer under a warrant in order to be justifiable.
Section 173 provides that “the defendant must be informed by the officer that he acts under the authority of the warrant, and he must also show the warrant if required.” This language would seem to be conclusive on the question before us. For, if the officer must show the warrant, if required, then it is-plain that it must be in his actual possession. It would be absurd to construe the section to mean that after making the arrest the officer must, if required, take the defendant to some other place (it may be a mile or so distant), and then show him the warrant. The section means that when the defendant is *477informed by the officer that he acts under the authority of the warrant, the defendant may require him to show it, and he must then show it. Constructive possession, for which the people argue, that is the existence of the warrant in the office of the chief of police, would lead to constructive showing of the warrant. “Constructive" is a dangerous word. If the Legislature had meant that the officer should constructively show his warrant, it would have been plainer to say he need not show it all Plainly then, when the Legislature speaks of arrest by a peace officer under a warrant, they understood that the warrant should be in the possession of the officer m such manner that it might be shown to the defendant at the time of making the arrest.
On common law principles aside from statute, this same doctrine is laid down in Codd v. Cabe (L. R,. 1 Ex. Div. 352), which is followed by Galliard v. Laxton (2 Best & Lmith, 363). 'The former of those cases was almost exactly like the present. A warrant had been issued against Oodd and placed in the hands of one constable. Another constable not being in possession of the warrant, arrested him. Oodd did not demand to see the warrant, resisted violently and greatly injured the officer. For this resistance and assault Oodd was convicted. The conviction was reversed by the three judges of the Court of Appeals, Bramwell, Mellor and Denman; and they ■stated that they had the concurrence of other judges, whom they had consulted. Their decision is directly in point, and shows the present view in England of the common law. The other case was similar. ,
If the remark in Arnold v. Steeves (10 Wend. 514) was correct, that an officer was not bonnd to show his warrant, which remark is followed (with a semblé) in Bellows v. Shannon (2 Hill, 86), certainly that rule is changed by section 173, above cited. So that argument derived from those cases is of no weight The same may be said of the remarks in 1 Bishop’s Criminal Procedure, sections 191, 192. The Code has declared that the officer must show his warrant if requested, and it follows inevitably that1 he must have it with him.
We do not understand the district attorney to claim that *478Knapp could have lawfully arrested the defendant if there had been no warrant. Only that it was sufficient that the warrant, should be in the office of the chief of police to justify any policeman of the place to make an arrest within the police limit. And he argues that great inconvenience will arise from a contrary rule; that if one policeman has the warrant a criminal may evade him and keep within the beat of another, and the like. There is much force in this. But, on the other hand, the innocent citizen has a right to protection. It is hardly safe to say that without a warrant a policeman may arrest a citizen for an alleged misdemeanor not committed within his sight. If Knapp was justified in arresting this defendant, then the innocent citizen must submit to arrest, without having the right to see the warrant before he yields to the alleged authority.
It has not been claimed that there is any special law giving peculiar authority to the policemen of Lansingburgh. We have, therefore, examined the question only on the general statute and on general principles.
We find no authority to justify the idea of constructive possession of a warrant. The idea is repudiated in the two English cases, and it is inconsistent with the Code, as above cited.
The judgment and conviction are reversed and the prisoner discharged.
Landon J., concurs.