Drifoos v. City of Jonesboro

• Decision Date: 17 February 1913
• Citation: 154 S.W. 196,107 Ark. 99
• Parties: DRIFOOS v. CITY OF JONESBORO
• Court: Arkansas Supreme Court

154 S.W. 196

107 Ark. 99

DRIFOOS v. CITY OF JONESBORO

Supreme Court of Arkansas

February 17, 1913

Appeal from Craighead Circuit Court, Jonesboro District; W. J Driver, Judge; affirmed.

Judgment affirmed.

Hawthorne & Hawthorne, for appellant.

1. "Process" is a writ or summons issued in course of a judicial proceeding. Kirby's Dig. § 7815. Under the testimony to the effect that the police officers had no warrant or other process for Amory, there is clearly no evidence to sustain the verdict. Kirby's Dig. § 1960.

2. Instruction 1 given by the court is clearly erroneous in that it refers to an ordinance which was never introduced in evidence. Kirby's Dig. § 3066; Id. § 5471; 35 Ark. 75; 66 Ark. 35; 68 Ark. 483.

No brief filed for appellee.

OPINION

SMITH J.

Upon an appeal to the circuit court from the judgment of the police court of the city of Jonesboro, the appellant was convicted of the offense of obstructing the police in the arrest of George Amory for a violation of the ordinances of the city of Jonesboro. Upon the trial in the circuit court, the defendant was again convicted and was fined fifty dollars, and appeals from the judgment of the court imposing that fine. The evidence tended to show that a young man, named Amory, was drunk and came out of appellant's restaurant in that condition, when two members of the city's police force saw him and one of these officers said to the other, "Let's take him and put him up; he is too drunk to be on the streets," and one of the officers put his hand on the drunk man's shoulder and asked him, "Where are you going?" when the drunk man drew his knife and backed away and staggered into appellant's place of business. The officers undertook to follow the drunk man, but were met by appellant at the door and refused admittance, and, the officers say, the appellant remarked with an oath that they would have to wait until the man came outside, that they could not arrest him while he was in appellant's place of business and that as they were not sure they had the authority to force their way into appellant's place, they left without making the arrest, but that they telephoned the chief of police, who told them to wait until morning and get a warrant from the police judge and this they did. Upon the other hand, appellant testified that he did not deny admission to the officers and did not prevent the arrest, but he says he saw the drunk man with a knife and one of the officers with a pistol, and he was afraid some one was going to be killed, as the drunk man had said he would not be taken out alive and he begged the officers to wait until the drunk man should leave his place. This conflicting evidence made a question of fact, which has been settled adversely to appellant's contention by the verdict of the jury.

Appellant did not deny the right of the officers to make the arrest, but he questions the sufficiency of the evidence to sustain the charge and he says there was no proof of any ordinance of the city on the question of resisting an officer. The court gave the following instruction to the jury:

"Gentlemen of the Jury: In this case, the defendant, George Drifoos, is charged with the offense of resisting an officer in the discharge of his duties, alleged to have been committed in the city of Jonesboro on the 16th day of October, 1912. The ordinance under which this is charged reads as follows: 'If any person shall unlawfully and wilfully resist any ministerial officer in the

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