moment when the fire from the one communicates to and sets on fire the other.

Derivation: Penal Code, § 491.

Woodford v. People (1874), 3 Hun, 310, 62 N. Y. 117; Arkell v. Insurance Co. (1877), 69 N. Y. 193, aff'g 7 Hun, 455; see also Hennessey v. People, 21 How. Pr. 239; Olsen v. Insurance Co., 35 Minn. 432, 59 Am. Rep. 333.

§ 227. Ownership of building.

To constitute arson it is not necessary that another person than the defendant should have had ownership in the building set on fire.

Derivation: Penal Code, § 495.

Shepherd v. People, 19 N. Y. 537; State v. Taylor, 45 Me. 322; People v. Smith, 3 How. Pr. 226; People v. Van Blarcum, 2 Johns. 105.

ARTICLE 20.

ASSAULT.

SECTION 240. Assault in first degree defined.
241. Punishment for assault in first degree.
242. Assault in second degree.

243. Punishment for assault in second degree.
244. Assault in third degree.

245. Punishment for assault in third degree.

246. Use of force not unlawful in certain cases.

§ 240. Assault in first degree defined.

A person who, with an intent to kill a human being, or to commit a felony upon the person or property of the one assaulted, or of another:

1. Assaults another with a loaded fire arm, or any other deadly weapon, or by any other means or force likely to produce death;

or,

2. Administers to or causes to be administered to or taken by another, poison, or any other destructive or noxious thing, so as to endanger the life of such other,

Is guilty of assault in the first degree.

Derivation: Penal Code, § 217.

Whedon

Y. 101, 25 Am. Rep.

Foster v. People (1872), 50 N. Y. 598, 603; Lenahan v. People (1874), 3 Hun, 164; Filkins v. People (1877), 69 N. 143, rev'g 1 Sheld. 104; People v. (1884), 2 N. Y. Cr. 318; People v. Carlton (1885), 115 N. Y. 618; People v. Sullivan (1885), 4 N. Y. Cr. 193; People v. Burgess (1887), 45 Hun, 157, 5 N. Y. Cr. 514; People v. Dartmore (1888), 48 Hun, 320, 2 N. Y. Supp. 310; People v. Connor (1889), 53 Hun, 352, 6 N. Y. Supp. 220; People v. Ryan (1889), 55 Hun, 214, 8 N. Y. Supp. 241, 7 N. Y. Cr. 448; People v. O'Connell (1891), 60 Hun, 109, 14 N. Y. Supp. 485; People v. Rockhill (1893), 74 Hun, 241, 26 N. Y. Supp. 222; People v. O'Connor (1903), 82 App. Div. 61, 81 N. Y. Supp. 555; People v. Huson (1906), 197 N. Y. 97, rev'g 114 App. Div. 693, 99 N. Y. Supp. 1081, 20 N. Y. Cr. 338; People v. Way (1907), 119 App. Div. 344, 104 N. Y. Supp. 277, 21 N. Y. Cr. 150, aff'd 191 N. Y. 533; People v. Randazzo (1908), 127 App. Div. 825; see also People v. Johnson, 9 Week. Dig. 384; People v. Cavanaugh, 62 How. Pr. 187; People v. O'Dell, 14 Week. Dig. 403; O'Leary v. People, 18 How. Pr. 187, 193; People v. Shaw, 1 Park, 327; People v. Vinegar, 2 Park, 224; Hagaman's Case, City Hall Rec. 73; State v. Keasling, 74 Iowa, 528; Mulligan v. People, 5 Park, 105; People v. Morehouse, 25 N. Y. St. 294; Blige v. State, 20 Fla. 742, 51 Am. Rep. 628; Trevimo v. State, 27 Tex. App. 372; Lacefield v. State, 34 Ark. 275, 36 Am.

Rep. 8; Dunaway v. People, 110 Ill. 333, 51 Am. Rep. 686; McGehee v. State, 62 Miss. 772, 52 Am. Rep. 209; Chapman v. State, 78 Ala. 463, 56 Am. Rep. 42; State v. Taylor, 20 Kan. 643; State v. Sears, 86 Mo. 169.

§ 241. Punishment for assault in first degree.

Assault in the first degree is punishable by imprisonment for a term not exceeding ten years.

Derivation: Penal Code, § 220, as amended L. 1892, ch. 662, § 6.

People v. O'Connell (1891), 60 Hun, 109, 14 N. Y. Supp. 485; People ex rel. Gately v. Lage (1896), 17 Misc. 713, 41 N. Y. Supp. 531; People v. Huson (1907), 187 N. Y. 100.

§ 242. Assault in second degree.

A person who, under circumstances not amounting to the crime specified in section two hundred and forty,

1. With intent to injure, unlawfully administers to, or causes to be administered to, or taken by another, poison, or any other destructive or noxious thing, or any drug or medicine the use of which is dangerous to life or health; or,

2. With intent thereby to enable or assist himself or any other person to commit any crime, administers to or causes to be administered to, or taken by another, chloroform, ether, laudanum, or any other intoxicating narcotic or anaesthetic agent; or,

3. Wilfully and wrongfully wounds or inflicts grievous bodily harm upon another, either with or without a weapon; or,

4. Wilfully and wrongfully assaults another by the use of a weapon, or other instrument or thing likely to produce grievous bodily harm; or,

5. Assaults another with intent to commit a felony, or to prevent or resist the execution of any lawful process or mandate of any court or officer, or the lawful apprehension or detention of himself, or of any other person,

Is guilty of assault in the second degree.

Derivation: Penal Code, § 218, as amended L. 1882, ch. 384, § 1. People v. Baker (1882), 89 N. Y. 460; People v. Irving (1883), 2 N. Y. Cr. 47, 31 Hun, 615; People v. Cole (1883), 2 N. Y. Cr. 108; People v. Hall (1883), 2 N. Y. Cr. 134; People v. Cooper (1884), 3 N. Y. Cr. 117; People v. Sullivan (1885), 4 N. Y. Cr. 193, 199; People v. Clark (1885), 3 N. Y. Cr. 280; People v. Sweeney (1886), 41 Hun, 332, 4 N. Y. Cr. 283; People v. Shanley (1886), 40 Hun, 477, 4 N. Y. Cr. 472; People v. Moore (1888), 50 Hun, 356, 3 N. Y. Supp. 159; People v. Connor (1889), 53 Hun, 353, 6 N. Y. Supp. 220, 7 N. Y. Cr. 468; People v. Ryan (1889), 55 Hun, 214, 8 N. Y. Supp. 214, 7 N. Y. Cr. 448; People v. Murray (1889), 54 Hun, 406, 7 N. Y. Supp. 548;

People v. Barber (1893), 74 Hun, 368, 26 N. Y. Supp. 417; People v. Hannigan (1899), 42 App. Div. 617, 58 N. Y. Supp. 703, 14 N. Y. Cr. 144; People v. Garner (1901), 64 App. Div. 410, 72 N. Y. Supp. 66, aff'd 165 N. Y. 585; People v. Dankberg (1904), 91 App. Div. 67, 86 N. Y. Supp. 423; People v. Huter (1906), 184 N. Y. 242, 20 N. Y. Cr. 41; People v. Randazzo (1908), 127 App. Div. 825; see also Codd v. Cabe, 1 Exch. Div. 352, 18 Eng. Rep. 353358 note; Hays v. People, 1 Hill, 361; Queen v. Riley, 18 Q. B. Div. 481, 38 Eng. Rep. 537; People v. Kirwan, 22 N. Y. Supp. 160; People v. Aldrich, 11 N. Y. Supp. 464; Simpson v. State, 59 Ala. 1, 31 Am. Rep. 1; People v. McKenzie, 6 App. Div. 199; Queen v. Clarence, 22 Q. B. Div. 23; People v. Cavanaugh, 62 How. Pr. 187; People v. Stacy, 104 N. Y. Supp. 616.

§ 243. Punishment for assault in second degree.

Assault in the second degree is punishable by imprisonment in a penitentiary or state prison for a term not exceeding five years, or by a fine of not more than one thousand dollars, or both.

Derivation: Penal Code, § 221, as amended L. 1892, ch. 662, § 7. People v. Sweeney (1886), 41 Hun, 340, 4 N. Y. Cr. 283; People ex rel. Gately v. Lage (1897), 13 App. Div. 136, 12 N. Y. Cr. 200, rev'g 17 Misc. 712, 43 N. Y. Supp. 372; People v. Stock (1898), 26 App. Div. 567, 50 N. Y. Supp. 483; People ex rel. Schali v. Deyo (1905), 181 N. Y. 425, 19 N. Y. Cr. 441, rev'g 103 App. Div. 126, 127, 93 N. Y. Supp. 80, 19 N. Y. Cr. 440; People v. Stacy (1907), 119 App. Div. 743, 747, 104 N. Y. Supp. 615, 21 N. Y. Cr. 220; see also People v. Terrell, 11 N. Y. Supp. 365; People v. Hale (1883), 18 Week. Dig. 213, 1 N. Y. Cr. 533.

244. Assault in third degree.

A person who commits an assault, or an assault and battery, not such as is specified in sections two hundred and forty and two hundred and forty-two, is guilty of assault in the third degree.

Derivation: Penal Code, § 219.

Corning v. Corning (1851), 6 N. Y. 97; Hays v. People (1865), 1 Hill, 351, cited in People v. Bransbey, 32 N. Y. 525; Slattery v. People (1874), 1 Hun, 311; People v. Court of Special Sessions (1879), 18 Hun, 330; People v. Person (1884), 2 N. Y. Cr. 114; Matter of Gray (1884), 2 N. Y. Cr. 302, 307; People v. Maschke (1884), 2 N. Y. Cr. 168; People v. Moore (1888), 50 Hun, 356, 3 N. Y. Supp. 159; People v. Drake (1892), 10 N. Y. Cr. 31, 47 N. Y. St. 783, 20 N. Y. Supp. 228; People v. Parker (1893), 69 Hun, 130, 23 N. Y. Supp. 704; People v. Bracco (1893), 69 Hun, 206, 23 N. Y. Supp. 505; People v. Curren (1896), 2 App. Div. 307, 37 N. Y. Supp. 803; People v. Kastner (1905), 101 App. Div. 265, 91 N. Y. Supp. 1004, 19 N. Y. Cr. 57; Matter of Bartholomew (1905), 106 App. Div. 371, 373, 374, 94 N. Y. Supp. 512; People v. Jacobs (1906), 51 Misc. 73, 100 N. Y. Supp. 734; People ex rel. Bidwell v. Pitts (1906), 111 App. Div. 320, 97 N. Y. Supp. 511; People v. Stacy (1907), 119 App. Div. 743, 104 N. Y. Supp. 615, 21 N. Y. Cr. 220; People ex rel. Gow v. Bingham (1907), 57 Misc. 75, 107 N. Y. Supp. 1011, 21 N. Y.

Cr. 568; see also Coward v. Baddeley, 28 L. J. Exch. 261; Matter of Bray, 12 N. Y. Supp. 367, 34 N. Y. St. 642; Rawlings v. Sill, 3 M. & W. 28; The Queen v. Lock, L. R. 2 Cr. Cas. Res. 10, 4 Eng. Rep. 512; Reg. v. Wollaston, 12 Cox C. C. 180, 2 Eng. Rep. 234; Rex v. Cockburn, 3 Cox C. C. 543; Rex v. Case, 4 Cox C. C. 220; Rex v. McGavarun, 6 Cox C. C. 64; People v. Lee, 1 Wheel. Cr. Cas. 364; Kirkland v. State, 43 Ind. 146, 13 Am. Rep. 386; Clark v. Downing, 55 Vt. 259, 45 Am. Rep. 612; Goodwin's Case, 6 City Hall Rec. 9; Faime's Case, 5 City Hall Rec. 95; People v. Powers, 1 Wheel. Cr. Cas. 405; Spence v. Duffy, 1 City Hall Rec. 39; Com. v. Hagenlock, 140 Mass. 125; Gray v. State, 63 Ala. 66, 73; Smith v. State, 39 Miss. 521, 525; People v. Yslas, 27 Cal. 630; Clark v. Downing, 55 Vt. 259, 45 Am. Rep. 612.

$245. Punishment for assault in third degree.

Assault in the third degree is punishable by imprisonment for not more than one year, or by a fine of not more than five hundred dollars, or both.

Derivation: Penal Code, § 222.

People ex rel. Devoe v. Kelly (1884), 97 N. Y. 212, 2 N. Y. Cr. 428, 32 Hun, 540; People v. Stacy (1907), 119 App. Div. 743, 748, 104 N. Y. Supp. 615, 21 N. Y. Cr. 220; see also People v. Sutton, 6 N. Y. Supp. 95; Matter of Bray, 12 N. Y. Supp. 367.

§ 246. Use of force not unlawful in certain cases.

To use or attempt, or offer to use, force or violence upon or towards the person of another is not unlawful in the following

cases:

1. When necessarily committed by a public officer in the performance of a legal duty; or by any other person assisting him or acting by his direction;

2. When necessarily committed by any person in arresting one who has committed a felony, and delivering him to a public officer competent to receive him in custody;

3. When committed either by the party about to be injured or by another person in his aid or defense, in preventing or attempting to prevent an offense against his person, or a trespass or other unlawful interference with real or personal property in his lawful possession, if the force or violence used is not more than sufficient to prevent such offense;

4. When committed by a parent or the authorized agent of any parent, or by any guardian, master, or teacher, in the exercise of a lawful authority to restrain or correct his child, ward, apprentice or scholar, and the force or violence used is reasonable in manner and moderate in degree;