There was no specification by the indictment or otherwise of the underlying crime or infraction for which the officer might arrest and which, therefore, might constitute the basis for a conviction of assault, but it seems to have been assumed that it was that of operating without a license. Nevertheless, other offenses were shown upon the trial and, indeed, are mentioned in the prevailing opinion here. *71The court’s charge was silent as to any underlying offense. In my view, the jury should have been instructed as to the elements necessary to the proof of each crime or infraction upon which the People relied as predicative of and precedent to the assault charged in the indictment (People v. Dority, 282 App. Div. 995, 996); and this, particularly, in view of the District Attorney’s remarks in his summation as to speeding and as to the assault charged being the second assault. I concur in Presiding Justice Bergan’s conclusion that the charge was otherwise incomplete. I vote for reversal and a new trial.
Coon, Reynolds and Taylor, JJ., concur in Per Curiam opinion; Bergan, P. J., dissents in opinion; Gibson, J., dissents, in a memorandum.
Judgment of conviction affirmed.