Williams v. State

• Decision Date: 12 February 1973
• Docket Number: No. 5786,5786
• Citation: 253 Ark. 973,490 S.W.2d 117
• Parties: Larry WILLIAMS et al., Appellants, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 117

490 S.W.2d 117

253 Ark. 973

Larry WILLIAMS et al., Appellants, v. STATE of Arkansas, Appellee.

No. 5786.

Supreme Court of Arkansas.

Feb. 12, 1973.

John W. Walker and Richard L. Mays, Little Rock, for appellants.

Ray Thornton, Atty. Gen. by Kirby Smith, II, Asst. Atty. Gen., Little Rock, for appellee.

FOGLEMAN, Justice.

Appellants were found guilty of refusal to assist an officer in violation of Ark.Stat.Ann. § 42--204 (Repl.1964) and resisting an officer in violation of Ark.Stat.Ann. § 41--2801 (Repl.1964). They contend that Ark.Stat.Ann. § 42--204 is void on its face, and as applied, in that it offends the Fourth, Fifth, Eighth, Ninth, Thirteenth and Fourteenth Amendments to the United States Constitution and that the evidence is not sufficient to show a violation of Ark.Stat.Ann. § 41--2801. We do not agree with either argument.

As will be noted, the appellants have assaulted § 42--204 by firing a blunderbuss. Some of their arguments seem vague and illusional, but we shall treat them as best we can. The statute reads:

Every person commanded by a public officer to assist him in the execution of process, who, without lawful cause, refuses or neglects to obey the command, is guilty of a misdemeanor and contempt of the court from which the process issued.

Since this contention relates, in part, to the application of the statute in this particular case, we must review the pertinent evidence in the light most favorable to the state. A Little Rock policeman named Haggard went to the residence of Patricia Ann Smith on November 11, 1971, for the purpose of arresting her on a shoplifting charge on a warrant issued by the Municipal Court of Little Rock. Haggard had attempted to serve the warrant previously, but the woman had run out the back door when he approached the house from the front. The officer had information that Mrs. Smith was at home upon the date of his second effort to make the arrest. He had called for assistance from other officers who were patrolling in the vicinity, so that another officer could watch the back door. When he was unable to locate another nearby officer who was not then occupied on other assignments, he saw the two defendants passing and called them over to his patrol car, in which he, in full uniform, was then seated. Haggard testified that he then explained that he was a police officer, exhibited the warrant to them, stating the charge upon which it was issued and sought their assistance in watching the back door of the house and calling out to him if the occupant of the house started out the back door. Haggard said that appellants both profanely stated that they would not assist a police officer at any time or place, and would not help him if he were lying in the street dying. According to the officer, he explained that there was both a state law and a city ordinance requiring a private citizen to aid a police officer upon the officer's request and that refusal to do so subjected the citizen to arrest for a misdemeanor. Haggard further testified that both appellants then used profane language and started walking away, and he informed them that they were under arrest for refusing to aid a police officer. He related that when they continued to walk away he repeated his statement that they were under arrest, walked up behind the appellants, laid his hands upon their shoulders preparatory to using the force necessary to make the arrest, again told them they were under arrest and that he would have to take them to police headquarters, but that they knocked his hands off their shoulders and continued walking away, so he pulled his pistol out, held it beside him and pushed appellants toward his patrol car, at which time another police officer stopped and stood by while he completed the arrest. Haggard testified that a companion of the appellants was not arrested because his assistance was not sought.

Williams testified that he neither cursed nor resisted the officer and that he did not know what the paper Haggard exhibited was, but admitted that he knew that Haggard had previously experienced trouble in making the arrest, that he had seen the officer watching shoplifters at a store, and that he had refused to assist Haggard, telling the officer that that was not Williams' job and that Haggard was being paid for doing this job. Williams denied that the officer had advised him that his refusal constituted a violation of state law before their arrival at the jail. He stated that he was afraid the woman might shoot him.

Hooks said that he declined to assist and told the officer that this was not his (Hooks') job and expressed fear that he might be shot and doubt that anything would or could be done about it. Hooks denied that the officer showed him a warrant or told him that his refusal to aid would be a violation of the law.

The posse comitatus has an ancient history. It has been defined as the power or force of the county, consisting of the entire population of the county over the age of 15, which a sheriff may summon to his assistance in certain cases, such as keeping the peace, pursuing and arresting felons, etc. Black's Law Dictionary, Fourth Edition, p. 1324. Its origins are believed to lie in the pre-conquest English statute of 'hue and cry,' a method then recognized for issuing and enforcing process to bring one committing a crime before the courts, under which one who came upon evidence of a crime was himself guilty of an offense if he failed to raise the 'hue' to call out the neighbors to turn out with weapons they were bound to keep. See II History of English Law, Pollock & Maitland, Second Edition, 578, et seq.; Babington v. Yellow Taxi Corporation, 250 N.Y. 14, 164 N.E. 726 (1928). From this practice, the right of the sheriff to call up the local male population to arrest criminals or prevent riots evolved, and became known as the posse comitatus, which in effect was a civil army to be used by the sheriff for these purposes, among others. Lorence, The Constitutionality of the Posse Comitatus Act, 8 U.M.K.C.L.Rev. 164 (1940). Refusal to render the aid sought by the sheriff was an offense punishable by fine and imprisonment. Commonwealth v. Martin, 7 Pa.Dist.R. 219 (1897); Annot. 44 Am.St.Rep. 136 (1895). See also, 4 Wharton's Criminal Law & Procedure (Anderson) 223, Arrest § 1582.

The criminal nature of refusal to aid an officer in the execution of his duties was recognized in Regina v. Brown, 41 Eng. Common Law Reports 175 (1841). A constable, acting upon information he had received, discovered an illegal prize fight in progress but, being unable to arrest the participants without a warrant, charged Brown to assist him. It was there said that one duly called upon to render such assistance was not excused except for physical impossibility or lawful excuse. This case has been followed in many American cases, and the practice has been utilized in law enforcement throughout the history of this country, although the necessity for aid to law enforcement officers may have diminished over the years. See Annot., 44 Am.St.Rep. 136 (1895); Hooker v. Smith, 19 Vt. 151, 47 Am.Dec. 679 (1847); Babington v. Yellow Taxi Corporation, 250 N.Y. 14, 164 N.E. 726 (1928); 4 Wharton's Criminal Law & Procedure (Anderson) 223, Arrest § 1582. In Babington, a police officer jumped on the running board of a cab and ordered the driver to chase another cab in order that its driver might be arrested. In determining the duty of the driver in these circumstances the court relied upon an 1848 New York statute strikingly similar to Ark.Stat.Ann. § 42--204 and reviewed the history of the duty of citizens in such cases. Mr. Justice Cardozo, speaking for the court, said:

The horse has yielded to the motorcar as an instrument of pursuit and flight. The ancient ordinance abides as an interpreter of present duty. Still, as in the days of Edward I, the citizenry may be called upon to enforce the justice of the state, not faintly and with lagging steps, but honestly and bravely and with whatever implements and facilities are convenient and at hand. The incorporeal being, the Yellow Taxi Corporation, would have been bound to respond in that spirit to the summons of the officer if it had been sitting in the driver's seat. In sending Babington upon the highway, it knew or is chargeable with knowledge that man and car alike would have to answer to the call.

Without further elaboration, it is sufficient to say that Ark.Stat.Ann. § 42--204 is, at most, an extension of the common law concept of posse comitatus, if not merely a codification thereof. Hooker v. Smith, 19 Vt. 151, 47 Am.Dec. 679 (1847). See also, Robinson v. State, 93 Ga. 77, 18 S.E. 1018, 44 Am.St.Rep. 127 (1893).

In Wharton's Criminal Law & Procedure (Anderson), Vol. 4, p. 223, Arrest § 1582, the author states, categorically, but with citation of authorities from five jurisdictions, that every citizen is bound to assist a known public officer in making an arrest, when called upon to do so. He adds, also citing authorities, that any police officer, instead of organizing a formal posse comitatus, may, when he deems it necessary to effect an arrest, summon any bystander to his assistance. See also, 47 Am.Jur. 847, Sheriffs, Police and Constables, § 36; 6 C.J.S. Arrest § 16, p. 616.

We are unaware of any attack upon the posse comitatus or the statutory enactments pertaining to the use of the power upon constitutional grounds in the history of this country. Not only is there a presumption favoring validity of any statute, every reasonable doubt is resolved in favor of its constitutionality, and the fact that a statute has been in effect over a long period of time without...