People v. Myers

• Decision Date: 03 May 1968
• Docket Number: Gen. No. 67--30
• Citation: 94 Ill.App.2d 340,236 N.E.2d 786
• Parties: PEOPLE of the State of Illinois, Plaintiff-Appellee, v. James MYERS, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 786

236 N.E.2d 786

94 Ill.App.2d 340

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. James MYERS, Defendant-Appellant.

Gen. No. 67--30.

Appellate Court of Illinois, Third District.

May 3, 1968.

Robert E. White, Ottawa, for appellant.

Robert E. Richardson, State's Atty., Ottawa, for appellee.

CULBERTSON, Justice.

Defendant, James Myers, was tried by a jury in the magistrate division of the Circuit Court of LaSalle County and was found guilty of knowingly resisting or obstructing a peace officer (Ill.Rev.Stat. 1965, chap. 38, par. 31--1), and of reckless conduct. (Ill.Rev.Stat. 1965, chap. 38, par. 12--5.) For each offense he was sentenced to serve a period of one year on a penal farm, the sentences to run concurrently. He has appealed contending that he was not proved guilty of either charge beyond a reasonable doubt, and that other errors require reversal.

From the record it appears that defendant returned to his rural home at about 8:00 p.m. on July 16, 1966, after having spent much of the day drinking in various taverns in and around the City of Ottawa. He became embroiled in an argument with his wife and, by his own admission, discharged a shotgun in an effort to drive her away from the home. When this occurred the wife and the couple's four children fled to the home of a neighbor, and a report was made to the sheriff's office that defendant was shooting at his wife and children with a shotgun. Shortly thereafter, a sheriff's car manned by deputies William Dummett and Wayne Hess came to the Myer residence. Defendant would not open the door, or come out, but talked to Dummett through a screened window. He told the officer to talk to the wife about the domestic difficulties, and when Dummett replied that they would have to come back and get him if the wife signed a complaint, defendant profanely told them to go ahead and get a warrant. According to the officers defendant was very belligerent and gave the impression that he had been drinking.

Immediately following the conversation with defendant, the officers drove to the neighbor's house, some 40 to 60 rods away, where defendant's wife signed a complaint against him for disorderly conduct and cautioned the officers to be careful. Upon their return to the Myers home they got no response when they knocked on the doors and called through the open window. Thereafter, they employed a mechanical device, commonly referred to as a bull horn, and periodically called out to defendant that they had a warrant and had to take him in. Other sheriff's officers and state troopers came to the scene and an effort was then made to force defendant out of the house with tear gas. When one of the canisters of gas fell into a waste basket and started a fire, deputy Linton Bowers donned a gas mask, entered the house and extinguished the blaze. While there he searched the downstairs rooms but found no trace of defendant. Following this, Hess put on an air pack and he and Bowers, with guns drawn, searched the upstairs rooms where they discovered defendant in a closed bedroom, lying on the floor behind a bureau. Defendant testified that he was lying on the floor to escape the effects of the tear gas and, while defendant denied it, the officers testified a rug had been placed across the base of the door to the bedroom.

According to the officers, defendant, upon being discovered, pushed the bureau over and rushed at them, whereupon they seized his arms, advised him they had a warrant for his arrest and, after some tussling and argument, pushed him toward the stairs. By the defendant's version, the bureau was knocked over accidentally and he put up no resistance when he was handed a warrant.

As the trio went down the stairs, described as being narrow, defendant was in the lead, Hess was next and was holding his gun at defendant's back, and Bowers was behind Hess. Under circumstances later to be detailed, and which form the basis for the charge of reckless conduct against defendant, Hess fell backward on the stairs causing his gun to discharge a bullet that struck Bowers in the leg. When this occurred defendant ran outside the house and was seized by other officers who testified that defendant kicked and fought, and that it took three men to subdue him and to place him in handcuffs. Defendant denied that he had resisted arrest, but testified he was forced to defend himself against over-zealous manhandling by officers who were angered because one of their number had been shot.

Defendant's contention that the State failed to prove him guilty beyond a reasonable doubt of knowingly resisting a peace officer is based on two arguments. First, that the evidence shows he was too intoxicated to be capable of having the knowledge requisite to the crime; and, second, that he did not resist but was in fact exercising his right of self-defense against unlawfully excessive force exerted by the arresting officers. Both issues, however, were for the jury to determine and we see no basis for disturbing its judgment in either respect. (People v. McGuire, 18 Ill.2d 257, 163 N.E.2d 832; People v. Walsh, 28 Ill.2d 405, 192 N.E.2d 843; cf. People v. Evrard, 55 Ill.App.2d 270, 204 N.E.2d 777.) Even if it be assumed defendant was intoxicated, there was ample evidence from which the jury could conclude that his intoxication was not so extreme as to render him incapable of knowing what he was doing. He was in sufficient possession of his faculties to recognize Drummett as a police officer when the latter first arrived, to know that he could not be arrested without a warrant, and to avoid the effects of the tear gas by lying on the floor and sealing the door with a rug. Furthermore, the record discloses he was able to remember each tavern he had been in, and that he was able to recount in detail his actions and conversations before, during and after his arrest. (Cf. People v. Strader, 23 Ill.2d 13, 177 N.E.2d 126; People v. Gallegos, 80 Ill.App.2d 105, 224 N.E.2d 631.)

On the matter of whether defendant was resisting or merely defending himself when he was finally taken into custody, the evidence was in conflict. The jury was the judge of the credibility of the opposing witnesses and of the weight to be accorded their testimony. And if the jurors believed the officers, as they obviously did, the evidence was sufficient to establish defendant's guilt of resisting beyond a reasonable doubt.

Returning to the events on the stairs, and to defendant's claim that he was not proved guilty of reckless conduct beyond a reasonable doubt, Hess testified as follows: That defendant was giving him a 'hard time' as they were coming down the stairs; that he prodded defendant with his gun when the latter slowed down; that defendant turned suddenly and struck the witness in the chest, causing him to lose his balance and fall backwards; that he, Hess, then tried to strike defendant with the gun; that their bodies then came together; and the gun discharged. Defendant, for his part, denied that he had touched or attempted to attack Hess and testified that he had merely turned to ask a question. He argues here that the mere act of turning could at best be only a negligent act, for which there could be no criminal liability, and theorizes that Hess lost his balance because of the bulky air pack equipment he was wearing. In addition, it is argued as being improbable and beyond belief that defendant would have attempted an attack on Hess with a gun in his back. Bowers testified that he saw defendant turn and lunge at Hess, but conceded that his position on the stairs did not permit him to see if there was actual physical contact between the men.

Section 12--5 of the Criminal Code defines the crime of reckless conduct in these words: 'A person who causes bodily harm to or endangers the bodily safety of an individual by any means, commits reckless conduct if he performs recklessly the acts which cause the harm or endanger safety, whether they otherwise are lawful or unlawful.' (Ill.Rev.Stat. 1965, chap. 38, par. 12--5.) Again in Section 4--6 of the Code, the term 'recklessness' is defined in this recklessly, when he consciously disregards a recklessly, when he consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow, described by the statute defining the offense; and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation. * * *.' (Ill.Rev.Stat. 1965, chap. 38, par. 4--6.) Defendant contends that he was not proved guilty of reckless conduct as it is defined in the Code, and further that the evidence fails to show that his purported conduct was the effective and efficient cause of...