State v. Scott

• Decision Date: 07 June 1909
• Docket Number: 17,623
• Citation: 123 La. 1085,49 So. 715
• Court: Louisiana Supreme Court
• Parties: STATE v. SCOTT

49 So. 715

123 La. 1085

STATE v. SCOTT

No. 17,623

Supreme Court of Louisiana

June 7, 1909

Appeal from twenty-Fourth District Court, Parish of West Feliciana George Jones Woodside, Judge.

Ephriam Scott was convicted of resisting an officer, and he appeals. Reversed and remanded.

Samuel McCutchon Lawrason, for appellant.

Walter Guion, Atty. Gen., and Joseph Lindsay Golsan, Dist. Atty (Ruffin Golson Pleasant, of counsel), for the State.

OPINION

PROVOSTY J.

Defendant was convicted, and sentenced to two years at hard labor, under the statute which makes it a crime "to oppose, resist or assault any officer while attempting to serve or execute process"; and he has appealed. The court charged the jury as follows:

"There can be illegal opposition and resistance to the execution of the process or order of court, without the application of actual physical force or the use of words. Any conduct which would place the officer executing the order in bodily fear or terror would render the offender guilty of illegal opposition and resistance contemplated by law. Threats may be communicated by signs, by tones of voice, or by action, as fully as by word of mouth.

"If a party said 'that he would not be arrested and would die first,' though he made no threats against the officer, or attempted physical resistance, or any kind of assault upon the officer, such words, without other thing done by the defendant, constitute resistance to an officer under the statute."

The first part of this charge is based on the decision of this court in the case of Armstrong v. Railway Company, 46 La.Ann. 1448, 16 So. 468. The latter part of the charge, we think, is too broad or unqualified. Mere spoken words, even such as those mentioned in this charge, do not necessarily constitute opposition or resistance. They are merely the expression of an intention to resist or oppose; and that is not what the statute provides against. It provides against an actual opposition or resistance. If an officer is deterred from making the arrest by the mere announcement of an intention not to be arrested, he may be said to have been dissuaded, but cannot be said to have been actually opposed or resisted; and the statute provides only for the latter. Our learned Brother should have explained that, in order that words should constitute the offense of resisting an officer, it would be necessary that they should have been spoken under circumstances affording the officer reasonable ground to believe that he could not proceed with the arrest without incurring evident risk of serious injury. In other words, the circumstances must be such that an officer of ordinary courage, but reasonable prudence, would be justified in desisting from the attempt to make the arrest.

In U.S. v. Smith, 1 Dill. 212, Fed. Cas. No. 16,333, Caldwell, J., said:

"It is not necessary to show actual violence. Threats and acts intended to terrify, or calculated of their nature to terrify a prudent and reasonable officer, are sufficient, even though he be not prevented thereby from executing his process."

In Pierce v. State, 17 Tex.App. 240, the Court of Appeals of Texas approved the following charge:

"As to what constitutes an opposition to the execution of a warrant or resistance of an officer, the jury are charged that any act willfully done with intent to deter or prevent any officer from the performance of his duty, and prevent him in making the arrest, would come within the meaning of the statute. If the means used is sufficient to prevent the officer in making the arrest, through fear, terror, or otherwise, caused by the opposition or resistance, it would make the offense complete, if it had the other elements hereinafter charged upon. * * *"

In State v. Welch, 37 Wis. 202, the court said:

"We do not hold that there must be actual force, or even a common assault upon the officer. It is not easy to see how; but...