State v. Wozniak

• Decision Date: 30 June 1971
• Docket Number: No. 10715,10715
• Citation: 486 P.2d 1025,94 Idaho 312
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Donald A. WOZNIAK, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 1025

486 P.2d 1025

94 Idaho 312

STATE of Idaho, Plaintiff-Respondent, v. Donald A. WOZNIAK, Defendant-Appellant.

No. 10715.

Supreme Court of Idaho.

June 30, 1971.

Thomas A. Mitchell, Coeur d'Alene, for defendant-appellant.

Robert M. Robson, Atty. Gen., Boise, and Thomas C. Morris, Pros. Atty., St. Maries, for plaintiff-respondent.

PER CURIAM.

At approximately noon, on Saturday, March 7, 1970, Edward Jewett, the proprietor of Holstein's Bar in St. Maries, Idaho, Phoned the sheriff's department for assistance involving an alleged disturbance. Shortly thereafter, the arresting officer, John Adams arrived in uniform. Officer Adams told Donald A. Wozniak, appellant, that Jewett wanted him to leave the bar and the appellant replied by asking the officer if he had an arrest warrant. When the officer stated that he did not have a warrant, the appellant repeatedly used loud, foul and abusive language toward the police officer. There were others present in the bar at this time including a woman. The police officer then left for the purpose of obtaining an arrest warrant as an outgrowth of Jewett's complaint. At that time Wozniak stated he was going up to the Gem State Bar and that the officer could find him there. The officer got into his patrol car and left for the purpose of obtaining a warrant, but, as he stated:

'I proceeded to my car and proceeded up on College, which I radioed the sheriff's office and asked them to get hold of Mrs. Irvine (the city judge) and then I thought about the person's attitude, his overrall thinking about him (sic), of his hostile mood, his beligerency, and I thought he might get in another fight or else hurt himself or somebody else when he proceeded toward the Gem State.'

Adams testified he decided to return to the Gem State Bar and arrest appellant immediately rather than waiting to obtain a warrant since it was Saturday and there might be some difficulty in getting hold of the judge. The time that elapsed between Adams leaving the Holstein Bar and returning to the Gem State Bar was, as he explained, only a 'minute or two.'

Adams then went to the Gem State Bar where he found the appellant on the phone and there arrested the appellant for disturbing the peace, beased upon the conduct directed at Adams in Holstein's Bar. Having arrested the appellant at the Gem State Bar, Adams then took the appellant to his patrol car, placing the appellant in the back seat, and proceeded toward the sheriff's department where the city jail is located. As Adams and the appellant were traveling down Main Street in the police car, the appellant stated: 'All for a misdemeanor. Have you ever seem my 12-guage shotgun? For this I am going to kill your ass.' Adams then asked the appellant if he was threateming him and the appellant replied by stating 'I am going to kill your ass.' Adams stated that the threats made him 'think twice' as he stated 'he didn't know whether to keep on going or to stop and let him go.' On cross-examination Adams further testified:

'It is for that he threatened my life, it slowed me up in my duties. I didn't know whether or not to go on through with it or not. I think the man (appellant) would kill me if he had the chance, and I took it as a great threat. It did slow me up because I thought twice about going to the court and the judge.'

Upon arriving at the sheriff's department they got out of the police car and the appellant spit in the officer's face. The appellant still conducted himself in a hostile and uncooperative manner. Adams grabbed the appellant, shoved him up the steps and into the sheriff's department, whereupon the appellant again began cursing and using foul and abusive language toward Adams.

At this point, inside the sheriff's department, the appellant again directed his wrath at Adams in foul and abusive terms. All of the foregoing conduct occurred while the appellant was in an angry and hostile mood. The defense did not raise the issue of intoxication. In Adam's opinion, defendant was not intoxicated. The appellant was thereafter incarcerated in the county jail on the grounds of disturbing the peace.

On Monday, March 9, 1970, officer Adams signed and filed a criminal complaint against the appellant charging him with resisting an executive officer in violation of Section 18-2703, Idaho Code, in the following language:

'The said Floyd Charles Robert a/k/a Donald A. Wozniak, on or about the 7th day of March, A.D., 1970 at and in the County of Benewah, State of Idaho, he then and there being did then and there willfully, unlawfully, intentionally, and feloniously, attempt by means of threats to deter or prevent an executive officer from performing his duty imposed upon such officer by law to wit: The defendant threatened to kill John Adams, a police officer in the City of St. Maries, if said officer continued in his efforts to arrest defendant.'

On March 11, 1970, the appellant was afforded a preliminary hearing and bound over to district court for trial.

The prosecuting attorney for Benewah County, subsequently filed an information charging the appellant, as above, on March 12, 1970. The appellant was tried on April 13 and 14, and convicted by a jury as charged. From said judgment of conviction, the appellant prosecutes this appeal. Appellant has never been tried for the initial and lesser charge of disturbing the peace.

Appellant first assigns error to the selection of the statute he was charged with and the applicability of that statute, I.C. § 18-2703 ¹ as compared to § 18-705. ² Both deal with resisting officers. The former with resisting executive officers the latter with resisting public officers. Wozniak maintains that he should have been charged with the latter, a misdemeanor, or alternatively, that the co-existence of the two laws providing different punishments for basically the same conduct is unconstitutional. I.C. § 18-705, the misdemeanor/public officer at law, is intended to be more general in application than § 18-2703, the felony/executive officer law. That is, public officer means an officer of the judicial, legislative, or executive branch and the legislature has made interference with their performance of a duty a felony or a misdemeanor depending on the elements of the interference. For example, resisting, delaying or obstructing any public officer (which includes executive officers) when no other punishment is prescribed, is an indictable misdemeanor under § 18-705. Under § 18-2703 any person who attempts by means of any threat or violence to deter any executive officer is guilty of a felony. From an examination of the record, it appears that appellant's conduct was within the meaning of § 18-2703. See State v. Emory, 55 Idaho 649, 652-653, 46 P.2d 67 (1935); I.C. § 19-510; People v. Buice, 230 Cal.App.2d 324, 40 Cal.Rptr. 877, 884 (1964) construing a statute very similar to I.C. § 18-2703.

Assignment of error no. 15 raises a question regarding the trial court's failure to instruct the jury concerning the delay in making the arrest. Since the officer did not arrest Wozniak in Holstein's Bar, but waited until several minutes later when Wozniak had progressed down the street to the Gem State Bar, appellant contends the officer no longer had the power to arrest for a misdemeanor committed in his presence. It should first be noted that I.C. § 19-603(1) places no time limit on an in-presence misdemeanor. An arrest without a warrant for a misdemeanor made within a prompt and reasonable time after the offense is valid. In the case at bar, Adams was in the process of obtaining a warrant to arrest Wozniak, but after a few minutes realized that he did not need one under such circumstances. Although such conduct on the part of the officer was not the most desirable, it was reasonable and prompt under the circumstances. See Hill v. Levy, 117 Cal.App.2d 667, 256 P.2d 622, 624 (1953); People v. Sessa, 43 Misc.2d 24, 250 N.Y.S.2d 193, 195-196 (1964); 5 Am.Jur.2d Arrest § 33 at p. 725, 58 A.L.R.2d 1059, § 2.

A final question concerning the arrest of appellant involves the assignment of error that the trial court failed to instruct as to the reasonableness of the time between the alleged criminal conduct and the actual arrest. It should be noted that the defense did not request such an instruction; nevertheless, the trial court did give an instruction as to the general law regarding arrest quoting I.C. § 19-601, ³ I.C. § 19-602, ⁴ and I.C. § 19-603. ⁵ I.C. § 19-2132 governs instructions to the jury and requests for instructions. The case of State v. Patterson, 60 Idaho 67, 77-78, 88 P.2d 493 (1939), has interpreted this section as requiring the court to instruct the jury with respect to general principles of the law pertinent to the case. However in the absence of a request, the court's failure to instruct upon a particular point cannot be assigned as error. See also State v. Fox, 52 Idaho 474, 16 P.2d 663 (1932); State v. Puckett, 88 Idaho 546, 401 P.2d 784 (1965). Therefore, we hold that the trial court adequately instructed the jury regarding the issues of this case.

The assignments of error numbered 2, 12 and 17 concern the constitutionality and the applicability of our felony-threat statute (I.C. § 18-2703) as applied to Wozniak's actions. It has long been established by both the United States Supreme Court and various state courts that not all speech is constitutionally protected. In Chaplinsky v. New Hampshire, 315 U.S. 568, at pp. 571-572, 62 S.Ct. 766, at p. 769, 86 L.Ed. 1031 (1942), the Court therein stated:

'(I)t is well understood that the right of free speech is not absolute at all times and under all circumstances. There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or 'fighting' words-those which by their very utterance...