State v. Bradshaw
| Decision Date | 08 December 1916 |
| Docket Number | 3848. |
| Citation | 161 P. 710,53 Mont. 96 |
| Parties | STATE v. BRADSHAW. |
| Court | Montana Supreme Court |
Appeal from District Court, Custer County; Daniel L. O'Hern Judge.
W. J Bradshaw was convicted of the crime of resisting an officer while the latter was in discharge of his duties, and, from the judgment and order denying new trial, he appeals. Reversed and remanded.
Sharpless Walker and W. C. Packer, both of Miles City, for appellant.
J. B Poindexter, Atty. Gen., for the State.
The defendant, having been charged with the crime of resisting a public officer while the latter was in the discharge of his duty in attempting to arrest the defendant, was convicted and sentenced to undergo imprisonment in the county jail and to pay a fine. He has appealed from the judgment and an order denying his motion for a new trial. He assails the validity of the conviction on the grounds that the information does not state a public offense, that the court erred to his prejudice in its rulings upon questions of evidence and in its instructions to the jury, and that the verdict is contrary to the evidence. We shall notice only the contention which questions the sufficiency of the evidence, because in our opinion a conviction could not be sustained upon the evidence found in the record, nor upon that supplemented by any other which might be introduced on another trial.
The charge in the information is that the defendant did--
"willfully, unlawfully, and knowingly resist, delay, and obstruct a public officer named Delos McBride, * * * a duly qualified and acting deputy sheriff, who was then and there in the discharge and attempting to discharge his duty as such deputy sheriff, being then and there engaged in making an arrest of said W. J. Bradshaw for a misdemeanor committed then and there in the presence of said deputy sheriff, to wit, unlawfully driving cattle from their accustomed range," etc.
McBride attempted to make the arrest without a warrant.
The statute authorizes a peace officer to make an arrest without a warrant under the circumstances indicated in section 9057 of the Revised Codes; among others, "for a public offense committed or attempted in his presence." Speaking generally, if such an officer has in his hands a warrant fair on its face, issued by a competent court, commanding him to arrest a person named therein, his warrant is his authority, and the person named in it must submit to arrest even though he is not guilty of any offense. The officer, after making his purpose known and exhibiting his warrant, if required to do so, may use force in order to effect the arrest, without subjecting himself to a charge of trespass, provided he uses only such force as is necessary (Rev. Codes, secs. 9062-9064; Sandford v. Nichols, 13 Mass. 286, 7 Am. Dec. 151; Appling v. State, 95 Ark. 185, 128 S.W. 866, 28 L. R. A. (N. S.) 548. His right to arrest without a warrant, however, is vested in him by law, only under the circumstances defined in section 9057, and if the circumstances do not exist, thus bringing into activity the authority of the law, he has no power to make the arrest. His effort to do so is a trespass upon the right of the citizen to the enjoyment of his personal liberty free from aggression by any one. In such case the person sought to be arrested may use such force as may be necessary to prevent the arrest, or to effect his escape after arrest. Miers v. State, 34 Tex. Cr. R. 161, 29 S.W. 1074, 53 Am. St. Rep. 705. True, the offense for which the arrest is sought may be in the form of resistance or obstruction offered to the officer in an attempt to arrest the defendant, or another, or to discharge some duty under civil process (Rev. Codes, § 8259); but the power to make it must be brought into activity, by the actual existence of the emergency pointed out by the law; and upon a prosecution for the offense of resisting an officer, this fact must be established by the same quantum of proof as is required to establish any material fact in any other criminal case. It is not sufficient that the officer believed that the defendant was engaged in a violation of the law, though such belief may have been entertained in the utmost good faith. Such was the rule at common law, and such is the rule under the statute (1 Wharton's Cr. Law (11th Ed.) § 136; Sanders v. Davis, 153 Ala. 375, 44 So. 979; Cummins v. State, 6 Okl. Cr. 180, 117 P. 1099. The officer must also make known his official character, or it must be known to the offender; else there is no obligation upon the latter to submit. 2 Wharton's Cr. Law (11th Ed.) § 852; Jones v. State, 114 Ga. 73, 39 S.E. 861; Yates v. People, 32 N.Y. 509.
There is some conflict in the evidence as to whether the defendant was informed of the purpose of the deputy, or presumptively knew of his character and purpose, and also upon the point whether the deputy made a bona fide attempt to effect defendant's arrest, or went further than to say to him that he was under arrest. It shows without contradiction, however, that the defendant was not engaged in committing any offense, or attempting to commit any. Section 8858 of the Revised Codes declares:
This provision is the only one in the Codes now in force upon the subject, though the district court and the county attorney both entertained the view that the defendant, by his conduct at the time of his alleged resistance to the officer, was acting in violation of section 8860. The trial court proceeded upon this theory, but that this was erroneous will be made clear by a brief reference to the history of these two provisions. Section 8860 was a part of the Penal Code of 1895, as reported by the Code Commission appointed under the act of March 14, 1889 (Laws 1889, p. 116), and the amendment thereto by the act of March 6, 1891 (Laws 1891, p. 278). It is found in the Penal Code of 1895 as section 1187. When the Codes of 1895 were adopted, the Legislature, by an act commonly known as the Omnibus Bill, found in part 5, Title 4 of the Political Code of 1895, and appearing in the Revised Codes as sections 3560-3566, continued in force many of the laws of 1893, among them an act approved March 6, 1893, which is found in the Codes of 1895 as section 1185 (section 8858, supra). It is declared by one of the provisions of the Omnibus Bill (Pol. Code 1895, § 5184 [Rev. Codes, sec. 3564]) that:
"If any of the acts or parts of acts herein enumerated are in conflict with, or are inconsistent with, any of the provisions of the said Codes enumerated in section 3563 [Rev. Codes, § 5183] of this act, or any of them, the acts or parts of acts herein enumerated are to be considered and construed as amendments to the respective Code or Codes, whose provisions they are in conflict with, or are inconsistent with, it being intended hereby that all of the acts or parts of acts herein enumerated shall be the law of the state of Montana, upon the respective subjects, so far as they are inconsistent with the provisions of the said Codes, or any of them, except as herein provided."
Upon a comparison of the two provisions it becomes apparent, not only that section 8858 is in conflict with section 8860, but so much so that the conclusion is...
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