State v. Arce

• Decision Date: 13 September 1967
• Docket Number: No. 1,CA-CR,1
• Citation: 6 Ariz.App. 241,431 P.2d 681
• Parties: STATE of Arizona, Appellee, v. Adolph Moreno ARCE, Appellant. 117.
• Court: Arizona Court of Appeals

Page 681

431 P.2d 681

6 Ariz.App. 241

STATE of Arizona, Appellee, v. Adolph Moreno ARCE, Appellant.

No. 1 CA-CR 117.

Court of Appeals of Arizona.

Sept. 13, 1967.

Rehearing Denied Oct. 11, 1967.

Review Denied Nov. 14, 1967.

Darrell F. Smith, Atty. Gen., by LeRoy R. Park, Asst. Atty. Gen., for appellee.

Ross Anderson, Phoenix, for appellant.

STEVENS, Judge.

The jury returned its verdict finding Adolph Mereno Arce 'GUILTY OF RESISTING ARREST, OBSTRUCTING JUSTICE, as charged in the Information'. The defendant came on for sentence on 27 June 1966. The minute entry of that date reads, in part, as follows:

'This is the time regularly set for imposition of sentence. * * * The Defendant is present with counsel, Robert Hunter.

'IT IS ORDERED denying Defendant's Motion for New Trial.

'IT IS THE JUDGMENT OF THIS COURT that you, ADOLPH MORENO ARCE, are Guilty of Resisting Arrest, Obstructing Justice, a felony * * * and no legal cause appearing to the Court,

'IT IS THE SENTENCE OF THIS COURT that you, ADOLPH MORENO ARCE, be incarcerated in the Arizona State Penitentiary, Florence, Arizona, for a period of not less than two (2e year (sic) nor more than four (4) years, said sentence to commence as of this date. * * *'

On 19 July 1966, the trial court entered the following further minute entry:

'IT IS ORDERED Nune Pro Tunc as of June 27, 1966, as follows:

'FURTHER ORDERED that said sentences are to be not less than 2 years nor more than 4 years on EACH COUNT, and terms are to run concurrently.'

Formal written judgment of guilt and sentence was filed in the Office of the Clerk of the Superior Court on 27 July 1966. It recites that on 27 June 1966, the defendant and his attorney personally appeared before the court and that * * * 'The following judgment of guilt was then entered in the presence of the defendant:

'IT IS THE JUDGMENT of the court that the defendant ADOLPH MORENO ARCE is guilty of RESISTING ARREST, COUNT I AND OBSTRUCTING JUSTICE COURT II, FELONIES as charged in the (Information). * * *

'IT IS THE JUDGMENT AND SENTENCE OF THE COURT, that the defendant be incarcerated in the Arizona State Penitentiary at Florence, Arizona, for a period of not less than Two (2) years nor more than Four (4) years, said sentence to commence as of this date. * * *

'July 19, 1966--IT IS ORDERED Nunc Pro Tunc, as of June 27, 1966, as follows:

'FURTHER ORDERED that said sentences are to be not less than Two (2) years nor more than Four (4) years on EACH COUNT, and terms are to run concurrently.'

The appeal questions the judgment and sentence and presents additional issues which were presented to the trial court prior to and during the trial.

The defendant was represented at his preliminary hearing and at the trial by court appointed counsel. A different court appointed counsel processed the appeal.

The events in question took place on 28 August 1965. The facts are not in dispute. The defendant testified at the trial. He stated that he had become 18 years of age on the preceding 22nd day of July; that he had completed one year of high school and he reviewed his employment record. He stated that on the date in question, a Saturday, he started drinking beer at about one o'clock in the afternoon and continued drinking until he attended a wedding at about five o'clock, at which time he changed to mixed drinks. He stated that he had no recollection of the events now in question because 'I was drunk'.

We turn to the testimony of the officers to complete the factual background. Captain Walker was a duly commissioned Reserve Captain of the Police Department of the City of Glendale, Arizona. On the evening of 28 August, he was on duty in uniform in an unmarked car equipped with red lights and a siren. At approximately 11:45 that evening he observed an automobile exceeding the speed limit and failing to stop at a stop sign. He followed the car with his red lights turned on. The car increased its speed and Walker turned on the siren. The car drove into a driveway on private property, stopped and the defendant emerged from the driver's side. A female passenger emerged from the righthand siad of the vehicle. Walker parked in the street; the red lights on the vehicle were left on; Walker dismounted from the car and called to the defendant to produce his driver's license. Walker had not then entered upon the private property and the two men were several feet apart. The defendant responded to Walker's request by cursing Walker, using foul language and stating, 'Get out of here'. Walker testified,

'I placed him under arrest. * * * by verbally advising him that he was under arrest for failing to sign the citation. * * * Well, at about that time he had taken off his shirt and thrown it on the ground and said he was going to kill me.'

Walker stayed at the curb. The defendant stayed in the yard and advanced a few steps toward Walker. Neighbors began to gather. Walker radioed for aid and, shortly, police officers, who were full-time employees of the Police Department of the City of Glendale, arrived. The defendant's course of conduct continued. Three officers advanced and manually, without the use of weapons restrained the defendant who fought them. It was difficult to place handcuffs on the defendant. It was necessary to tie the defendant's feet together with a belt to enable the officers to place him in the police car. At some time during the scuffle, probably while the defendant was face down on the ground to facilitate the application of handcuffs, the defendant sustained slight injuries to his nose or mouth. These injuries bled to some extent. Before the defendant's feet were secured by the belt, he kicked one of the officers. To avoid receiving the blow in his groin, the officer shifted his body and the blow was received on the inner aspect of the thigh. After the defendant was placed in the police car, he kicked out one of the windows of the police car and two officers rode in the back seat with him to the police station. The defendant caused further problems at the police station verbally and by spitting upon people.

The defendant's testimony as to the injuries he sustained indicated that the injuries were minor. He further testified that on the following Monday morning, 30 August, he was taken to the City Court of the City of Glendale where he plead guilty to the traffic offenses of driving under the influence of intoxicating liquor, and reckless driving, and to the offense of illegal consumption of liquor by a minor. He was fined $300.00 which fine was paid by his parents.

That afternoon, after the liaison officer of the Glendale Police Department had conferred with the office of the County Attorney, a formal complaint was filed before the Justice of the Peace. Defense counsel was promptly appointed. Within a short time a preliminary hearing was held at which Walker was the only witness who testified. The defendant was bound over to the Superior Court where an Information was filed in the same language used in the complaint. The caption of the Information is as follows:

'INFORMATION FOR RESISTING ARREST, OBSTRUCTING JUSTICE'

The charging portion of the Information is as follows:

'In the name and by the authority of the State of Arizona

ADOLPH MORENO ARCE is accused this 16th day of September, 1965, by the County Attorney of Maricopa County, State of Arizona, by this information, of the crime of RESISTING ARREST, OBSTRUCTING JUSTICE, A FELONY committed as follows, to-wit:

'The said ADOLPH MORENO ARCE on or about the 28th day of August, 1965, and before the filing of this information at and in the County of Maricopa, State of Arizona, attempted, by means of a threat or violence, to deter or prevent a public officer from performing a duty imposed upon the officer by law, or wilfully resisted, delayed or obstructed a police officer in the performance of his duty; all in violation of Section 13--541, A.R.S.;'

The statute in question is one of ten sections in the Arizona Revised Statutes, brought together under the following heading:

'ARTICLE 29. OBSTRUCTING JUSTICE'

The particular section referred to in the Information and upon which the charge is based reads as follows:

' § 13--541. Resisting, delaying, coercing or obstructing public officer; punishment

'A person who attempts by means of any threat or violence to deter or prevent a public officer from performing any duty imposed upon the officer by law, or who wilfully resists, delays or obstructs a public officer in the discharge or attempt to discharge any duty of his office, or who knowingly resists by the use of force or violence the officer in the performance of his duty, where the punishment is not otherwise specifically prescribed, shall be punished by a fine not exceeding five thousand dollars and imprisonment in the state prison for not to exceed five years, for by imprisonment in the county jail for not to exceed one year.'

The defendant strenuously urged in the Justice Court and in the Superior Court and he urges in this Court, that the Information is fatally defective. He bases this contention upon his view that the Information charges more than one offense in a single count.

Rule 115 of the Rules of Criminal Procedure, 17 A.R.S., specifies:

'Rule 115. Charging the offense

'A. The indictment or information may charge, and is valid and sufficient if it charges, the offense for which the defendant is being prosecuted in one or more of the following ways:

'1. By using the name given to the offense by the common law or by a statute.

'2 By stating so much of the definition of the offense, either in terms of the common law or of the statute defining the offense or in terms of substantially the same meaning, as is sufficient to give the court and the defendant notice of what offense is intended to be charged.

'B. The indictment or information may refer to a section or subsection of any statute creating the offense charged therein, and in determining the validity or...