State v. Tages

• Decision Date: 17 July 1969
• Docket Number: CA-CR,No. 2,2
• Citation: 10 Ariz.App. 127,457 P.2d 289
• Parties: The STATE of Arizona, Appellee, v. Betty Lou TAGES, Appellant. 141.
• Court: Arizona Court of Appeals

Page 289

457 P.2d 289

10 Ariz.App. 127

The STATE of Arizona, Appellee, v. Betty Lou TAGES, Appellant.

No. 2 CA-CR 141.

Court of Appeals of Arizona.

July 17, 1969.

Gary K. Nelson, Atty. Gen., Carl Waag, Asst. Atty. Gen., for appellee.

Erik M. O'Dowd, Tucson, for appellant.

MOLLOY, Chief Judge.

Appellant was convicted of obstructing a public officer while the officer was attempting to execute a warrant for the arrest of her husband. Appellant contends that the trial judge erroneously refused to give an instruction that 'Merely remonstrating with an officer in behalf of another, or criticizing an officer * * *' would not constitute a violation of the statute under which this prosecution is brought.

Appellant is the wife of Douglas Tages. On December 23, 1967, Detective Rossette and Officer Walker, of the Tucson Police Department, were advised that there was a felony warrant outstanding for the arrest of Douglas Tages, and that he had been seen in Tucson that day. Rossette saw the warrant, but he did not carry it on his person. The two officers were dressed in plain clothes and were working together as a part of the 'tactical operations unit' of the police department at about 11 p.m., when they saw Douglas Tages sitting at the bar in Johnny's Place, a saloon on South Meyer Street in Tucson. Appellant was seated next to her husband at the bar.

The evidence is conflicting as to what happened thereafter. According to the officers, they entered the bar, identified themselves to Douglas Tages, advised him that a warrant was outstanding for his arrest, and told him that he would have to come with them. Still according to the officers, Douglas Tages was leaving the bar with them when appellant stated, 'You aren't going to take my loved one,' and accosted Officer Walker with a 20-some inch metal shoehorn and started, and participated in, a physical struggle which enabled Douglas Tages to break temporarily free from Officer Walker's grip.

The three eyewitnesses called by appellant, on the other hand, did not hear the officers identify themselves to Douglas Tages, and all three testified that appellant remained seated throughout the encounter between the officers and Douglas Tages and did nothing of a physical or physically menacing nature toward the officers. According to these witnesses, appellant's activities prior to her own arrest were confined to making remarks, to the officers or to Douglas Tages, such as the following (not necessarily in evidentiary or chronological order):

'* * * That is my husband * * * If you want to talk to him, talk to him right here * * * Well, don't go anyplace * * * Don't go anywhere with them unless they show you a warrant for your arrest * * * We don't even know they are cops * * * Don't go anywhere, Honey, until he show you a warrant for your arrest.'

The jury found appellant guilty as charged of violating A.R.S. § 13--541, which is our version of a type of legislation widely adopted in this country to prevent interference with public officers in the execution of their duties. ¹ It is worth noting that our statute, captioned in part 'Resisting, delaying, coercing or obstructing public officer * * *,' defines three separate but closely related forms of the offense, or, perhaps more accurately stated, identifies three different types of offenders. The second or third offenders defined commence with the words 'or who.' As the 'Historical Note' under § 13--541 points out, the section is derived from two California statutes. The first and third parts of our statute are essentially identical to § 69 West's Ann.Pen.Code (1955), except that the California statute is applicable only with respect to 'executive' officers. The second or middle part of the statute is essentially identical to § 148 of the same Penal Code. Underscoring the second, or middle part, upon which appellant focuses attention here, our statute reads as follows:

'A. 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 prsion for not to exceed five years, or by imprisonment in the county jail for not to exceed one year.' (Emphasis added) A.R.S. § 13--541, subsec. A, as amended.

The critical instruction requested by appellant reads in full as follows:

'Merely remonstrating with an officer in behalf of another, or criticizing an officer while he is performing his duty, does not amount to obstructing, hindering or interfering with an officer.'

In refusing to give the instruction, the trial judge indicated that he felt it approached being a comment on the evidence, and that the lack of a clear-cut definition for 'remonstrating' would make the instruction confusing to the jury. The jury, which was instructed in the language of the entire statute, was not given any other instruction to the effect that critical or argumentative words, alone, were insufficient for conviction.

The requested instruction is a direct quotation from 39 Am.Jur. § 10 Obstructing Justice, p. 508, which in turn is substantially excerpted from a passage in Annot., 48 A.L.R. 746, 753, stating a general rule taken from several older cases. Similar statements are found in District of Columbia v. Little, 339 U.S. 1, 6, 70 S.Ct. 468, 471, 94 L.Ed. 599, 603 (1950): '* * * mere remonstrances or even criticisms of an officer are not usually held to be the equivalent of unlawful interference'; and in Gaston v. State, 239 Miss. 420, 123 So.2d 546, 549 (1960): 'Merely remonstrating with * * * or criticizing an officer * * * does not amount to an attempt to intimidate or impede him.' See also 3 Anderson, Wharton's Criminal Law and Procedure (1957) § 1284, p. 634; and Compare State v. Harris, 4 Conn.Cir. 534, 236 A.2d 479, 482--83 (1967), decided under a statute which punishes anyone who '* * * obstructs, resists Or abuses * * *' an officer (emphasis added).

While the word 'obstruct' has been defined in this context as meaning '* * * to be or come in the way of,' and has been said to imply '* * * some physical act or exertion,' Landry v. Daley, 280 F.Supp. 938, 959 (N.D.Ill.1968), there are a number of authorities holding that resistance or obstruction may be committed without the employment of actual violence or direct force, ² and we are unwilling to hold that non-threatening speech, alone, without force, can never in any circumstances constitute a violation of our statute. See People v. Cooks, 58 Cal.Rptr. 550 (App. Dep't Sup.Ct.1967) (where the defendant persistently counseled an unjustified resistance by another to a lawful police request to furnish identification). Conceivably, too, a verbal harangue may be so staged and be of such length and disconcerting in its character as to materially impair an officer's ability to carry out his duties. Cf. State v. Harris, Supra, 236 A.2d 479, decided under the statute proscribing 'abuse' of an officer.

But we regard these situations as being at the outer limits of what may be punished under an anti-obstruction statute. Speech alone, however, offensive in the non-criminal sense, does not constitute an offense even under a statute such as that in Connecticut unless the officer's job is made more difficult. State v. Neubauer, 2 Conn.Cir. 169, 197 A.2d 93 (1963). Policemen are no more exempt from criticism than cabinet ministers. See Rex v. Cook, 11 Can.Crim.Cas. 32 (British Columbia 1906), noted at 48 A.L.R. 754.

It is true that, in this jurisdiction, an officer may make an arrest on the basis of a warrant without producing the warrant itself, A.R.S. § 13--1407, but nothing in that, or any other statute, precludes an inquiry by the arrestee or by another in his behalf into the nature of the warrant and the identity of the persons making the arrest. Under these circumstances, we think that speech which is non-threatening, ³ and which is not accompanied by physical force, is punishable only when it is substantially equivalent to force, that is, when it is intended to and does incite an unlawful resistance by another to the discharge of official duty ⁴ or when the speech itself by its very volume and intensity interferes substantially with the carrying out of an official duty. See People v. Cooks, Supra, 58 Cal.Rptr. 550; Commonwealth ex rel. Walker v. Sheriff, 3 Brewster (Pa.), 343, 344 (Qu.Sess.Phila.Co.1869); and ...