Tomaris v. State

• Court: Arizona Supreme Court
• Writing for the Court: STANFORD; LA PRADE
• Citation: Tomaris v. State, 224 P.2d 209, 71 Ariz. 147 (Ariz. 1950)
• Decision Date: 21 November 1950
• Docket Number: No. 1004,1004
• Parties: TOMARIS v. STATE.

Page 209

224 P.2d 209

71 Ariz. 147

TOMARIS v. STATE.

No. 1004.

Supreme Court of Arizona.

Nov. 21, 1950.

W. T. Choisser, of Phoenix, for appellant.

Fred O. Wilson, Atty. Gen., Chas. Rogers, Asst. Atty. Gen., Maurice Barth, Asst. Atty. Gen., for appellee.

STANFORD, Justice.

Appellant was tried in the Superior Court, on information filed charging him with the crime of resisting a public officer, a felony under section 43-3910, A.C.A. 1939.

The facts show that a state highway patrolman, Hodgson, observed the appellant driving his automobile at a speed reaching ninety miles per hour. He gave chase, but failed to overtake the appellant until all the gas in appellant's car had been used. When Hodgson arrived, appellant refused to get out of his car. Hodgson then called for assistance, apparently by radio, and Officer Cowan, also a highway patrolman, arrived on the scene. When Cowan and Hodgson attempted to arrest him, appellant struck Hodgson, struggled with him and used abusive language, refusing to submit to arrest.

Appellant was finally tried for the offense charged, on October 25, 1949, and the jury returned a verdict of guilty. After judgment and sentence, appellant has appealed to this court, submitting the following three assignments of error which we mention in substance only: (1) That the court erred in deciding matters of law in denying appellant's motion to quash, wherein the question was raised as to whether a highway patrolman is in fact a 'public officer' within the meaning of section 43-3910, supra; (2) That the court misdirected the jury in instructing that a highway patrolman is a 'public officer'; and (3) That the County Attorney was guilty of misconduct, in violation of section 44-2704, A.C.A. 1939, by commenting, in his argument, on the fact that appellant did not elect to be a witness in his own behalf at the trial.

The section of our Code, first mentioned 43-3910, supra, is as follows: 'Every person who wilfully resists, delays or obstructs any public officer in the discharge or attempt to discharge any duty of his office, when no other punishment is prescribed, is punishable by fine not exceeding five thousand dollars [$5,000], and imprisonment in the state prison not exceeding five years.'

Appellant's first two assignments of error are so closely related that they will be considered together.

Argument is based upon the contention that a highway patrolman is not in fact a 'public officer' within the meaning of section 12-101, A.C.A. 1939, which defines 'public officer' as 'the incumbent of any office, member of any board or commission, his deputy or assistant exercising the powers and duties of such officer other than clerks or mere employees of such officer.' It is claimed that this contention should be given consideration because of the fact that members of the highway patrol are not required to be of age, to write or read the English Language, to file an oath with the Office of the Secretary of State, etc., in accordance with section 12-102, A.C.A. 1939, setting out requirements to be fulfilled by all 'public officers'.

This court held in State v. Hendricks, 66 Ariz. 235, 186 P.2d 943, that highway patrolmen are 'public officers' within the meaning of section 12-101, supra. Also, in the case of Industrial Commission v. Arizona State Highway Commission, 61 Ariz. 59, 145 P.2d 846, 849, this court said: '* * * the elements requisite to a public office as defined in Stapleton v. Frohmiller, 53 Ariz. 11, 85 P.2d 49, 52, (are) as follows: 'It will be seen from this that we held there were three elements requisite to a position being a public office, which are (a) the specific position must be created by law; (b) there must be certain definite duties imposed by law on the incumbent; and (c) they must involve some portion of the sovereign power. * * *''

All three requirements listed above are fulfilled most adequately in an initiative measure adopted 1948, now appearing as 66-701, in the cumulative pocket supplement, A.C.A. 1939, and sections 66-702, 66-703 and 66-704, A.C.A. 1939, pertaining to the Highway Patrol Division. Regarding appellant's reference to requirements for all public officers as set out in section 12-102, supra, we refer to section 66-701b, which became effective with the initiative measure mentioned above, and as such, supersedes the provisions of section 12-102, supra, which might otherwise have been applicable to members of the highway patrol, as public officers. This section provides for appointment of the Merit System Council, which among other things shall: '(3) Pursuant to recognize merit principles of public employment; from time to time: (a) classify or reclassify all positions in the division, from a list...