Court of Gen. Sessions, N. Y. County, April, 1921. [Vol. 115. tion of the crime is not, of absolute necessity, criminal. Before it will have that effect it must have been done with the intention on the part of the actor that it shall aid in the commission of the crime." People v. Zucker, 20 App. Div. 363, 365; 154 N. Y. 770; People v. Bright, 203 id. 73; People v. Sweeney, 213 id. 37; People v. Swersky, 216 id. 471; People v. Cohen, 223 id. 406; People v. Doyle, 107 Misc. Rep. 268. The People contend that the acts charged against the defendant in the first count, namely, "that the defendant unlawfully did fail, refuse and neglect to direct and command police officers Wheelwright and Sorger to arrest Jane Doe, but on the contrary, he wilfully did direct and command them not to arrest Jane Doe," were of such a character that they could be committed only by a superior officer, and that since neither police officer possessed the power and authority of a deputy police commissioner, it was legally impossible for the police officers to participate in any of these acts. The police officers could not, of course, be guilty of these acts charged against the defendant with respect to his directing, inducing or commanding them not to arrest the "woman," since they possessed none of the powers of the defendant. But the learned district attorney overlooks a very important and material allegation contained in this count, namely, "that the defendant wilfully did fail, refuse and neglect to arrest Jane Doe." With respect to this allegation, the law and the rules of the police department impose a plain duty not only upon the deputy police commissioner, but upon every police officer, to arrest and apprehend persons committing crimes and violating the laws of the State of New York and the ordinances of the city of New York. It is manifest that the acts charged against the defendant and the police officers come within this allegation of the indictment. Court of Gen. Sessions, N. Y. County, April, 1921. Misc.] From the evidence before the grand jury, the only inference to be drawn is that the defendant and the officers were concerned in the crime of wilfully omitting to perform a public duty enjoined by law upon public officers for failing, neglecting and refusing to arrest Jane Doe. This is the gist of the crime charged in the first and second counts, and this is the crime that the defendant and the police officers were all capable of committing. They were all concerned in the scheme not to arrest Jane Doe, and each one of the public officers aided and abetted the other in the commission of the crime. Penal Law, § 2. When the defendant, as charged in the first count, wilfully directed and commanded the police officers, in violation of their duty, not to arrest Jane Doe and permit her to go free and the police officers, yielding to his inducement, direction and command, failed to arrest her for a violation of the law committed in their presence, all of the parties to this arrangement and understanding became members of the same conspiracy to violate their duty as public officers, and they all became concerned in the crime of wilfully omitting to perform a public duty enjoined by law upon them as public officers. The fact that officers Wheelwright and Sorger may, for some reason, be incapable of committing the same or some of the acts attributed to the defendant with respect to his public duty, is not material (People v. McKane, 143 N. Y. 455), so long as the police officers were concerned with him in the commission of the substantive crime charged against him in the first count. It is impossible to segregate the acts of the alleged criminality on the part of the defendant and the two police officers. According to the district attorney's own theory of the case, he specifically, in the second count, charges the police officers with wilful neglect Court of Gen. Sessions, N. Y. County, April, 1921. [Vol. 115. of duty, and the defendant with having aided and abetted them in the commission of that crime. It is urged by the People that inasmuch as the police officers, under threats and coercion of their superior the defendant obeyed his direction not to arrest Jane Doe, they cannot be deemed accomplices, but should be viewed as "victims." To adopt this suggestion, that the police officers be regarded as victims instead of perpetrators of or participants in the crime charged in the first and second counts, would be introducing a dangerous doctrine into the criminal law, and would be subversive of the best interests of organized society. It is essential to an orderly administration of justice that no discretion be vested in a police officer to flout a duty enjoined upon him by law where there is proof that the criminal law has been violated. A public officer should be held to a strict performance of and responsibility for the duties which the law enjoins upon him. While it may be conceded that the official position of the defendant may have instilled fear in the police officers that if they did not obey him they might be oppressed or penalized, nevertheless, such a belief on their part cannot excuse their conduct of granting immunity to a violator of the law. The police officers were not subjected to duress when they yielded to the command of the defendant not to arrest Jane Doe. If the defendant had threatened the police officers with instant death or grievous bodily harm unless they obeyed him and the police officers entertained reasonable apprehension for their lives or safety, then and then only, could their failure to arrest Jane Doe be legally excused. Section 859 of the Penal Law embodies the recognized and well-established rule on this subject. This section provides as follows: "Where a crime is committed or participated in by Misc.] Court of Gen. Sessions, N. Y. County, April, 1921. two or more persons, and is committed, aided, or participated in by any one of them, only because, during the time of its commission, he is compelled to do, or to aid or participate in the act, by threats of another person engaged in the act or omission, and reasonable apprehension on his part of instant death or grievous bodily harm, in case he refuses, the threats and apprehension constitute duress, and excuse him." Prof. Wharton, in his celebrated Treatise on Criminal Law, in discussing the question of acts committed by a person due to coercion, compulsion and duress, states the following: "The fact that a crime. is committed under coercion and compulsion, in fear of instant death, may be set up as a defense to the prosecution for the commission of such crime; but, to be available as a defense, the fear must be wellfounded, and immediate and actual danger of death or great bodily harm must be present, and the compulsion must be of such a character as to leave no opportunity to accused for escape or self-defense in equal combat. It would be a most dangerous rule if a defendant could shield himself from prosecution for crime by merely setting up a fear from or because of a threat of a third person (Sec. 383). The fact that an act is done by an officer of the government, or an agent or representative of the government acting under the direction of a superior officer of the government, will not constitute a ground of defense, and exempt the person so acting from personal liability for the wrongful act; the official position affords no immunity from criminal prosecution." Sec. 377. The same rule applies with respect to the omission to perform an act enjoined by law. In People ex rel. Eggers v. Bingham, 121 App. Div. 393; affd., 190 N. Y. 566, the court said: "Even if he (the relator being a police officer) refrained from the Court of Gen. Sessions, N. Y. County, April, 1921. [Vol. 115. performance of his duty in obedience to the request of Howell, this cannot of course excuse his conduct. If he had knowledge that the law was being violated, it was his duty to suppress the violation; but if in failing to do this he acted under orders of his superior, we think the punishment was too severe." P. 595. It is also urged that the police officers cannot be deemed accomplices of the defendant with respect to the third count because they could not be indicted for the same crime. This contention is without force. The question whether a witness is the accomplice of a defendant depends not upon the charge in the indictment, but upon the evidence establishing that the witness was jointly concerned with the defendant in the commission of a crime. This rule is very tersely stated by Mr. Justice McLaughlin in People v. Hyde, 156 App. Div. 618, 627, in which case the eminent and learned jurist said: "But in the nature of things, one is or is not an accomplice of another, not because he is or is not indictable for the same or another offense, or by reason of the form of the punishment which the statute has prescribed, but by reason of what he has done, and of the part which he has taken in the commission of the crime, and it would seem, under section 2 of the Penal Law, that notwithstanding the giving and the receiving of a bribe are made distinct crimes, yet the giver may be indicted as a principal in the crime of receiving, and vice versa." P. 627. People v. Maynard, 151 App. Div. 790, is to the same effect. In People v. Hyde, supra, the learned judge further said: "The subject was discussed at some length by the Supreme Court of Massachusetts in Commonwealth v. Smith (11 Allen, 243), the question being whether a suborner of perjury was an accessory before the fact of the perjurer. The court said: 'The |