Long v. United States, 6465.

• Decision Date: 10 November 1952
• Docket Number: No. 6465.,6465.
• Parties: LONG v. UNITED STATES.
• Court: U.S. Court of Appeals — Fourth Circuit

199 F.2d 717 (1952)

LONG v. UNITED STATES.

No. 6465.

United States Court of Appeals Fourth Circuit.

Argued October 7, 1952.

Decided November 10, 1952.

W. H. McElwee, North Wilkesboro, N. C. (T. C. Bowie, Jr., Jefferson, N. C., on brief), for appellant.

Theodore C. Bethea, Asst. U. S. Atty., Reidsville, N. C. (Bryce R. Holt, U. S. Atty., Greensboro, N. C., on brief), for appellee.

Before PARKER, Chief Judge, DOBIE, Circuit Judge, and WILLIAMS, District Judge.

PARKER, Chief Judge.

This is an appeal in a criminal case. Appellant was charged under an indictment containing two counts with violation of 18 U.S.C. § 111 which provides:

"§ 111. Assaulting, resisting, or impeding certain officers or employees. Whoever forcibly assaults, resists, opposes, impedes, intimidates, or interferes with any person designated in section 1114 of this title while engaged in or on account of the performance of his official duties, shall be fined not more than $5,000 or imprisoned not more than three years, or both. Whoever, in the commission of any such acts uses a deadly or dangerous weapon, shall be fined not more than $10,000 or imprisoned not more than ten years, or both."

The first count of the indictment charged that appellant "opposed, impeded and interfered with" one Irwin, a deputy United States Marshal, while engaged in official duties. The second count charged that he "forcibly assaulted, opposed, impeded and interfered with" the deputy marshal while engaged in official duty, and "in the commission of such act used a deadly and dangerous weapon, that is a shot gun". The jury convicted appellant on the first count but found him not guilty on the second count.

Appellant complains because of the refusal of the trial judge to exclude evidence as to what took place during a search of his residence, to direct a verdict of acquittal on the evidence and to arrest the judgment because of the failure of the first count of the indictment to charge the use of force in connection with the "opposing, impeding and interfering" charged and because there was an acquittal on the count charging the use of force. The first two points are so lacking in merit as not to warrant discussion. The remaining point, while not ground for arresting the judgment, calls attention to error in submitting the case to the jury of so fundamental a character as to require that the conviction be reversed.

The facts are that a warrant had been issued for the arrest of one Carl Ballard, whom the federal officers believed to be at the home of appellant, who resided in a small house in a rural section of North Carolina. The officers went to appellant's home in the night time and found the premises dark. They called out but received no answer until one of them climbed up and flashed a light in a window of one of the rooms, where he saw appellant lying on a bed. Appellant, who claims that he was awakened and frightened by the light flashed in his face, seized a gun and fired through the window for the purpose, as he says, of frightening away persons whom he thought were unlawfully invading his premises. Learning that the persons with whom he was dealing were officers of the law, he opened the door and voluntarily admitted them to the house, but upon inquiry, denied that Carl Ballard was there. The officers proceeded to search the house and found Ballard hiding in the attic. Appellant testified on the trial that Ballard had left the house sometime prior to the arrival of the officers and that appellant, having gone to sleep in the meantime, did not know of his return; but there was other evidence which would justify the jury in believing that appellant was not telling the truth about this and that he had denied the presence of Ballard for the purpose of misleading the officers.

The trial judge correctly instructed the jury that, if they found that appellant fired the gun for the purpose of obstructing and impeding the officers in the discharge of their duty, the jury could convict him under the second count of the indictment. He further instructed them, however, that the prosecution contended that, even if the appellant did not fire the gun for that purpose, he would nevertheless be guilty under the first count if he attempted to mislead the officers by telling them that Ballard was not in the house; and the jury under the instructions was permitted to return a verdict of guilty under the first count on such a finding. In this we think there was manifest error, in that it permitted the jury to base a verdict of guilty on a mere attempt to deceive the officers without use of force. As the only evidence of the use of force was the firing of the gun, and as the verdict on the second count acquitted appellant of criminality with respect to that, the conclusion is inescapable that appellant was convicted because of the false statement made to the officers when he told them that Ballard was not in the house, or because he did not immediately open the door upon the command of the officer. This, in our opinion, was not sufficient to sustain a conviction.

While under some statutes and the decisions in some jurisdictions the use of force is not always a necessary element in the crime of resisting or interfering with an officer in the discharge of his duties, some use of force or threat to use it or display of force in such way as to intimidate or interfere with the officer is generally present. See cases collected in note in 48 A.L.R. 746 et seq. And the Supreme Court in a recent case has held that mere refusal to unlock a door does not constitute such interference even under a statute which makes no...