Jackson v. Superior Court in and for Merced County

• Decision Date: 23 June 1950
• Citation: 219 P.2d 879,98 Cal.App.2d 183
• Court: California Court of Appeals Court of Appeals
• Parties: . Civ. 7897. District Court of Appeal, Third District, California

Page 879

219 P.2d 879

98 Cal.App.2d 183

JACKSON et al. v. SUPERIOR COURT IN AND FOR MERCED COUNTY.

Civ. 7897.

District Court of Appeal, Third District, California.

June 23, 1950.

Don C. Mayes, Merced, for petitioners.

Fred N. Howser, Attorney General, Doris H. Maier, Deputy, for respondent.

VAN DYKE, Justice.

Petitioners John Jackson and Evelyn Jackson have applied for a writ of prohibition to be directed to the Superior Court of this State in and for the County of Merced, restraining that court from proceeding further under an information filed therein by the district attorney of that county, charging a public offense against petitioners. The information charged that petitioners on March 27, 1950 did wilfully and unlawfully delay or obstruct a public officer in the discharge or attempted discharge of a duty of his office, to wit, lawful arrest of a person. The information is drawn in the language of Section 148 of the Penal Code.

It appears from the petition and the answer thereto as follows: On Marcy 26th at about 1:30 P.M. John Borth, a special deputy sheriff who resides at Winton in Merced County, observed one Harvey Jackson, with some other boys, shooting with BB guns at a light bulb affixed to a public building in Winton. Borth knew the boy, who likewise lived in Winton with his parents, petitioners here, and knew his approximate age. He stopped and talked to the boys. When he got out of his car these boys ran away and then came back to talk to him, and he told them they shouldn't be playing around the building and doing what they did. On the following day and around five o'clock in the afternoon Officer Borth, in company with Officer Adcock, likewise a deputy sheriff, went to the home of Harvey Jackson to arrest him for the incident above stated. They had no warrant for his arrest. Adcock asked the boy to come to the car and told him he was under arrest and to get into the back seat. One of the petitioners, Evelyn Jackson, mother of the boy, was close by the car and she told her son not to get in the car, held out her arm to keep him from going in the car and called the boy's father, petitioner John Jackson. The officers told him what was wanted, whereupon Jackson slammed the car door shut, told the boy to go into the house and stay there and not to go with the officers. Thereupon Adcock said if the parents would not let the youngster go, he (Adcock) would take all three of them, and Jackson replied that would be fine, but they would have to have papers and they wouldn't go without them nor allow them to take the boy. Thereupon the officers left the scene and obtained a warrant from a magistrate for the parents as well as the boy and effected arrests pursuant to warrant. A preliminary examination of petitioners was held, transcript of which appears in the record here. The warrant, so far as petitioners be concerned, while a copy of it has not been made a part of the record apparently charged petitioners with the crime of violation of Section 702 of the Welfare and Institutions Code, that is, contributing to the delinquency of a minor, and upon the magistrate's determination that probable cause had been shown in respect of this offense petitioners were held to answer. Thereafter the district attorney filed the information above set forth in substance, as an amended information, charging the offense commonly known as resisting an officer.

It is without dispute that the attempted arrest charged to have been resisted was being made without a warrant and was for an offense committed by the boy Harvey Jackson some twenty-eight hours previously in the presence of Officer Borth. While it is not clear from the transcript that Officer Borth attempted to make any arrest and, indeed, it substantially appears that the arrest was being attempted by Officer Adcock upon information from Officer Borth, yet since both officers were present we have chosen to treat the matter as an arrest attempted by Officer Borth. It is of course obvious that Officer Adcock upon mere information from Officer Borth would have no lawful right, without a warrant, to arrest the boy for the commission of a public offense admittedly not rising above the quality of a misdemeanor. So treating the subject of the attempted arrest leaves the situation one where the right of Officer Borth to make the arrest without a warrant comes in question.

By the specific provisions of the Penal Code, § 834 et seq., peace officers and private citizens alike may make an arrest without a warrant for a public offense committed or attempted in the presence of the person making the arrest. On such an occasion the powers of arrest possessed by peace officers and by private citizens are equal. But to the right to arrest without warrant the law attaches the following conditions: The arrest must be made at the time the offense or any part of the offense is being committed or within a reasonable time thereafter or upon fresh and immediate pursuit of the offender. 6 C.J.S., Arrest, § 6, p. 590. As stated by the Supreme Court in People v. Craig, 152 Cal. 42, 47, 91 P. 997, 1000, 'It seems to be generally held that an arrest for a misdemeanor without a warrant cannot be justified, if made after the occasion has passed, though committed in the presence of the arresting officer.'

It was said in Oleson v. Pincock, 68 Utah, 507, 251 P. 23, 26: 'No hard and fast rule can, however, be laid down which will fit every case respecting what constitutes a reasonable time. What may be so in one case under particular circumstances may not be so in another case under different circumstances. All that can be affirmed with safety is that the officer must act promptly in making the arrest, and as soon as possible under the circumstances, and before he transacts other business.'

In Wahl v. Walton, 30 Minn. 506, 16 N.W. 397, 398, wherein the statute under consideration was the same as our own and in a case where five hours had elapsed between the time when an officer observed an offense committed and the time he made an arrest without warrant therefor, the court said:

'* * * The power to arrest without warrant, while it may in some cases be useful to the public, is dangerous to the citizen, for it may be perverted to purposes of private malice or revenge, and it ought not, therefore, to be enlarged. When it is said that the arrests must be made at the time of or immediately after the offense, reference is had, not merely to time, but rather to sequence of events. The officer may not be able, at the exact time, to make the arrest; he may be opposed by friends of the offender; may find it necessary to procure assistance; considerable time may be employed in the pursuit. The officer must at once set about the arrest, and follow up the effort until the arrest is effected. In Regina v. Walker, supra [25 Eng. Law & Eq. 589], some two hours had elapsed...