State v. Pope
| Decision Date | 27 June 1940 |
| Docket Number | 27848. |
| Citation | 103 P.2d 1089,4 Wn.2d 394 |
| Parties | STATE v. POPE. |
| Court | Washington Supreme Court |
Mrs Neil Pope was convicted of resisting a public officer engaged in the performance of a legal duty, and she appeals.
Affirmed.
Appeal from Superior Court, Spokane County; Charles W. Greenough judge.
Gleeson & Gleeson, of Spokane, for appellant.
Ralph E. Foley and Harvey Erickson, both of Spokane, for respondent.
Defendant was tried and found guilty by a jury upon a charge of resisting a public officer engaged in the performance of a legal duty. From a judgment of conviction, defendant has appealed.
The facts, as established by the jury's verdict, are as follows: Appellant purchased a range and a refrigerator, under a conditional sale contract, from a mercantile company in Spokane. Several monthly installments having become delinquent, the vendor threatened to repossess the merchandise by legal process unless at least a full monthly payment was made. Appellant was unable to make the payment, and defiantly announced that she would not surrender the property. The vendor thereupon assigned the contract to its sales manager, who thereafter, as plaintiff, filed in the superior court a summons and complaint against appellant and her husband, seeking a return of the property, or, in the alternative, a money judgment for its value. At about the same time, the plaintiff in that action made claim for immediate delivery of the property upon filing an affidavit and bond as required by Rem.Rev.Stat. §§ 707, 708, and 709, relating to 'Claim And Delivery (Replevin).'
On receipt of copies of these papers in the sheriff's office, a deputy went to appellant's home, about 3 o'clock in the afternoon, for the purposes of making service thereof, and of obtaining the property described in the conditional sale contract. Upon his arrival there, two men who had been sent by the vendor, were waiting with a truck to assist in moving the range and the refrigerator.
The deputy rang the door bell, and appellant, in response, opened the door partially. The deputy introduced himself, explained his mission, and delivered to appellant two copies of the summons, complaint, affidavit, and bond, respectively, one of each for appellant, and the others for her husband. The deputy also inquired of appellant whether she then had the range and the refrigerator in her possession, and on receiving an affirmative answer informed her that it was his 'unpleasant duty under the bond and replevin to remove them.'
Appellant thereupon started to close the door. The deputy, however, put his foot inside the entrance and thus held the door ajar. Then, by exerting the force of his weight, he pushed the door open and entered the room. Appellant immediately became very belligerent. After ordering the deputy to leave the house, she endeavored to push him out. Failing in that, she resorted to blows and other personal indignities accompanied by the use of abusive language. The deputy endeavored to protect himself against her as best he could, but refrained from injuring her in any way. He insisted, however, on taking the articles mentioned, and proceeded to the kitchen, where he found the range and the refrigerator. The deputy thereupon called the men who were waiting outside, and the three men then began to disconnect the appliances. The work of disconnecting and removing the range and the refrigerator consumed about thirty or thirty-five minutes. Throughout the entire period, appellant continued her attacks and abusive language. The deputy finally warned her that if she did not desist he would have to place her under arrest. The warning, however, had no effect, and the deputy thereupon took her into custody, and, after the work of removing the appliances had been completed, proceeded with her to the courthouse. He there swore out the complaint upon which she was subsequently tried and convicted.
Appellant contends that the officer did not have the right to enter her dwelling place over her protest, and that her resistance was therefore justified. The vital question to be determined, then, is whether or not the deputy sheriff had the right, against the protest and resistance of appellant, to enter the dwelling place for the purpose of repossessing the property covered by the conditional sale contract.
The precise question has never been presented to this court, and cases from other jurisdictions are of little aid because in this state proceedings in replevin are governed by the claim and delivery statute.
As an approach to the question, however, we may advert to the rule of the common law that, in executing a civil writ or process, an officer may not break an outer door, or other outside protection, to a dwelling house, or forcibly enter a dwelling, even after request for, and refusal of, admittance. 2 Freeman, Executions, 3d Ed., 1436 et seq., § 256.
The common law rule is founded upon the ancient and well known principle that respects a man's home as his citadel, fortress, or asylum, not only for defense against injury and violence, but also for repose to his family. The object of the law as expressed in the legal maxim is not to secure an immunity of goods against attachment on civil process, but, rather, to afford protection to the home and the family.
Upon the theory that a writ of replevin and similar writs are but civil processes, the common law rule is likewise applicable to writs of replevin, writs de retorno habendo, and orders for the sale of specific personal property. 3 Freeman, Executions, 3d Ed., 2457, § 468; 23 R.C.L. 892, § 48; 54 C.J. 491, § 143. Interesting discussions of the rule and the cases will be found in annotations appearing in Ann.Cas.1915C, 1142, and L.R.A.1916D, 282.
While some of the text writers upon the subject seem to think that the common law rule has no application to writs of replevin (Shinn, Replevin, 324, § 368; Cobbey, Replevin, 2d Ed., 340, 341, § 647; Wells, Replevin, 2d Ed., 272, § 287), it appears that those writers relied principally upon early American cases in which the respective courts apparently confused writs for the seizure of specific chattels with writs for the recovery of specific real estate, which latter writs are protected by entirely different considerations. The great weight of authority under the common law is clearly to the effect that the rule is applicable to all civil writs or process, including writs of replevin.
However, as already suggested, we have in this state a statutory procedure relating to claim and immediate delivery of personal property, and hence the common law is not controlling.
Rem.Rev.Stat. § 707, provides: 'The plaintiff in an action to recover the possession of personal property may, at the time of issuing the summons, or at any time Before answer, claim the immediate delivery of such property as herein provided.'
Rem.Rev.Stat. § 708, prescribes the form of the affidavit to be made by the plaintiff when claiming such delivery. The affidavit must show, among other things, that the plaintiff is the owner of the property claimed, or is lawfully entitled to the possession thereof by virtue of a special property therein, and that the property is wrongfully detained by the defendant.
Rem.Rev.Stat. § 709, provides for the execution of a bond by the plaintiff, to be approved by the sheriff. Upon the receipt of the prescribed affidavit and bond, the sheriff is required forthwith to take the property described therein, if it be in the possession of the defendant, or his agent, and retain it in his custody.
Rem.Rev.Stat. § 714, provides: (Italics supplied.)
The phrase 'the building,' where italicized in this section, appears to be, in part, a misprint. It should read 'a building.' See Laws of 1854, 151, § 107; Code of 1881, § 149; 2 H.C. § 262.
It will be noted that this section makes no exception of the dwelling house, but refers generally to any building or inclosure.
Strange to say, there is a dearth of authority upon the question whether, under a statute similar to ours, a dwelling house may be broken and entered by a sheriff, or other officer, for the purpose of taking possession of personal property located therein. No case arising out of the statute of this state has been called to our attention. However, what little general authority we have been able to find upon the subject is to the effect that under such a statute a sheriff or other proper officer has the right to break and by use of force enter a dwelling after demand upon the owner for the property, and refusal thereof by him.
In State ex rel. McPherson v. Beckner, 132 Ind. 371, 31 N.E. 950, 32 Am.St.Rep. 257, wherein the statute involved was almost identical with our own, the court expressly recognized that in actions for replevin a sheriff may cause a dwelling house to be broken open. The court held in that case, however, that a constable, who had made the entry, did not have such right, under the statute, and that as to him the common law rule was in force.
In State v. Whitaker, 107 N.C. 802, 12 S.E. 456, it was likewise held that a constable could not, for the purpose of levying an attachment, forcibly enter a dwelling house. The court, however, made a clear distinction between attachment and the statutory claim and delivery, holding that in the latter instance the officer had such...
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