State v. Wenger

• Decision Date: 13 June 1979
• Docket Number: No. 78-1285,78-1285
• Citation: 58 Ohio St.2d 336,390 N.E.2d 801,12 O.O.3d 309
• Parties: , 12 O.O.3d 309 The STATE of Ohio, Appellee, v. WENGER, Appellant.
• Court: Ohio Supreme Court

Page 336

58 Ohio St.2d 336

390 N.E.2d 801, 12 O.O.3d 309

The STATE of Ohio, Appellee, v. WENGER, Appellant.

No. 78-1285.

Supreme Court of Ohio.

June 13, 1979.

Syllabus by the Court

A third person has no right to volunteer assistance or interpose resistance when the person assisted is being lawfully arrested; and if the intervenor, in good faith, aggressively intervenes in a struggle between another person and a plain clothes officer, who is attempting to effectuate a lawful arrest, then the intervenor is guilty of an assault because he has no greater right to use force than the person whom he is endeavoring to protect.

Rex Y. Wenger, plaintiff-appellant herein, attended a rally held by the Ku Klux Klan on the grounds of the Ohio State House. He attended the rally in order to demonstrate his opposition to the Klan. During the course of the rally, the police observed Cathy Pekel throwing eggs in the direction of the Klan's members. In accordance with police policy, Pekel was not approached until after the rally was over. At that time, she was told by a plain clothes policeman, Officer Joseph T. Whalen, that she was under arrest. There is some conflict in the testimony, but it appears that she resisted arrest and had to be grabbed and restrained from fleeing. While the plain clothes officer was attempting to effect this arrest, the defendant struck him in the back with a stick which he had used to carry a placard. The defendant was arrested and charged with assault. (R.C. 2903.12(A) ¹), obstructing official business (R.C. 2921.31) and resisting arrest (R.C. 2921.33.).

At trial, the defendant requested, but the judge denied, a proposed jury instruction which stated that the defendant was justified in using force if he felt that the other person needed protection. Appellant was found guilty of assault, but was acquitted of the other two charges. The trial court imposed a five-day suspended sentence and a $100 fine and costs. The Court of Appeals affirmed the judgment.

The cause is now before this court upon the allowance of a motion to certify the record.

Gregory S. Lashutka, City Atty., and Ronald J. O'Brien, Columbus, for appellee.

R. William Meeks, Columbus, for appellant.

WILLIAM B. BROWN, Justice.

This court is asked to decide whether the defendant was denied a fair trial, in violation of the Due Process Clause of the Fourteenth Amendment to the United States Constitution and Section 16, Article I of the Ohio Constitution, when the trial judge refused to instruct the jury as follows:

"The court instructs you that the use of force upon or toward the person of another is justifiable to protect a third person when: under the circumstances as the actor believes them to be, the person whom he seeks to protect, would be justified in using such protective force, and the actor believes that his intervention is necessary for the protection of such other person."

As stated by Judge McCormac in his dissent in the Court of Appeals below:

"The question is solely a choice of law. One body of cases takes the position taken by the majority that a third party intervenor stands in the shoes of the person whom he is aiding and it is immaterial whether a reasonable person would have acted as did the intervening defendant. The policy of this rule of law is to require the intervenor to make certain of his rights before acting.

"The contrary rule of law is that an intervenor may aid another if it appears to be reasonably necessary even though based on a mistaken belief, even in the situation where the person who is aided would not have had the same right. The policy behind this rule of law is to encourage a person to assist another without being deterred by the knowledge that irrespective of good faith, notice, or apparent necessity, he may be criminally liable if mistaken."

Up until now, this court has never been asked to decide the issue of who may claim justifiable use of force when intervening on behalf of a stranger. Previously, our discussion on the subject of defense of third persons has been limited to those who are related by consanguinity, affinity, or who stand in a special relationship to the intervenor.

In Sharp v. State (1850), 19 Ohio 379, this court considered the intervention of a son on behalf of his father. In that case, this court found that special relationships permit intervention and exculpation if the party aided was without fault. The charge to the jury stated, at page 389, in part:

"That it was true, as a principle of law, that a son might justify an assault in defense of his father, if the father were not in the wrong."

In another case, State v. Sheets (1926), 115 Ohio St. 308, 152 N.E. 664, which dealt with the justifiable use of force by a husband to defend his wife, the jury charge once again provided, in part, that the use of force to defend a wife was proper provided the wife was not at fault. It is clear that the special relationship provided an excuse or justification for the use of force if it had not been for the wrongdoing of the person to be aided.

Now, the appellant urges us to adopt a statement of the law taken from a portion of the Model Penal Code which the Ohio General Assembly has not adopted. ² Appellant asks us to consider the circumstances as they appeared to him and to justify the use of force because he believed it was necessary. We have surveyed the case law and authority he raises, but we are not persuaded by them. ³

We believe that the decisions of Sharp and Sheets, supra, are persuasive. A person who intervenes in a struggle and has no duty to do so, acts at his own peril if the person assisted was in the wrong. ⁴ One who intervenes on behalf of a stranger should not stand in better stead than one who intervenes on behalf of a blood relative. The recurring theme is that one who intervenes to help a stranger stands in the shoes of the person whom he is aiding, and if the person aided is the one at fault, then the intervenor is not justified in his use of force and is guilty of an assault. The present cause is similar to that in People v. Young (1962), 11 N.Y.2d 274, 229 N.Y.S.2d 1, 183 N.E.2d 319. ⁵ In Young, the defendant jumped on a plain clothes officer who was attempting to lawfully arrest a third person, and the Court of Appeals of New York reversed the appellate court decision which had exonerated the defendant of any criminal liability. The court stated, at page 275, 229 N.Y.S.2d, at page 2, 183 N.E.2d, at pages 319-320, that "(t)he weight of authority holds * * * that one who goes to the aid of a third person does so at his own peril," and "(w)e agree with the settled policy of law in most jurisdictions that the right of a person to defend another ordinarily should not be greater than such person's right to defend himself." ⁶

This court agrees with the following statement set forth in 6A C.J.S. Assault and Battery § 93, p. 485:

"A third person certainly has no right to volunteer assistance or interpose resistance where the person wrongfully arrested makes no resistance, or where the arrest was, in fact, legal. Thus, One who in good faith aggressively intervenes in a struggle between another person and a police officer in civilian dress attempting to effect the lawful arrest of the third person may be guilty of assault." (Emphasis added.)

In the present cause, the defendant was only entitled to use as much force as Ms. Pekel was privileged to use. Officer Whalen had informed her that she was under arrest and she resisted. Recently, we held in Columbus v. Fraley (1975), 41 Ohio St.2d 173, 324 N.E.2d 735, that an arrestee is not justified in using force to resist an unlawful arrest unless the officer exerted unnecessary or excessive force. Here, where the officer was effecting a legal arrest without exerting unnecessary force, the arrestee clearly had no right to use force to resist the arrest. Therefore, neither did appellant.

In a case which is similar to the present one, Purdy v. United States (D.C.App.1965), 210 A.2d 1, the defendant appealed the trial court's refusal to charge the jury concerning the justifiable use of force to defend another. The appeals court held that there was no evidence establishing that the person to be defended had the right to defend himself. The court, at page 2, stated:

"That right * * * attaches only where the person being defended would have the right of self-defense."

Because the evidence herein clearly established that the officer was making a lawful arrest and that the arrestee had no right to use force or "defend" herself against the arrest, the trial court did not violate the defendant's constitutional rights when it refused to give the defendant's jury instructions. Therefore, the cases of Cincinnati v. Epperson (1969), 20 Ohio St.2d 59, 253 N.E.2d 785, and State v. Nelson (1973), 36 Ohio St.2d 79, 303 N.E.2d 865, cited by the appellant, do not apply.

The trial judge correctly assessed the law of this state prior to ruling on whether the defendant's instruction should be given. Accordingly, the judgment of the Court of Appeals is affirmed.

Judgment affirmed.

CELEBREZZE, C. J., and HERBERT, MAHONEY, SWEENEY and LOCHER, JJ., concur.

HOLMES, J., concurs in the judgment.

MAHONEY, J., of the Ninth Appellate District, sitting for PAUL W. BROWN, J HOLMES, Justice, concurs in the judgment, but dissents from the syllabus law of the case.

I prefer to take the position as did Judge McCormac of the Court of Appeals for Franklin County, I. e., that the intervenor should not always have to stand in the shoes of the person whom he is aiding. As stated by Judge McCormac: "The contrary rule of law is that an intervenor may aid another if it appears to be reasonably necessary even though based on a mistaken belief, even in the...