Yeley v. State
| Citation | 32 Ind.Dec. 317,153 Ind.App. 133,286 N.E.2d 183 |
| Decision Date | 22 August 1972 |
| Docket Number | No. 472A172,472A172 |
| Parties | Larry YELEY, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee. |
| Court | Court of Appeals of Indiana |
Phillip W. Brown, Shelbyville, for defendant-appellant.
Theodore L. Sendak, Atty. Gen., Stephen J. Cuthbert, Deputy Atty. Gen., for plaintiff-appellee.
Defendant-appellant Yeley was convicted by the court without a jury of the offense of resisting or interfering with an officer or person assisting him, which was a violation of Ind.Stat.Ann. § 10--1005a (Burns, 1971 Supp.) (IC 35--31--4--2) which reads as follows, to-wit:
'Drawing weapon or committing injury upon officer or person assisting him.--Whoever shall draw, use or attempt to use a firearm, deadly or dangerous weapon, or commit a bodily injury upon any peace or police officer of this state, or upon any person assisting such peace or police officer knowing him to be such officer or person assisting such peace or police officer, while assaulting, resisting, opposing, obstructing, preventing, impeding or interfering with any peace or police officer, when such officer is arresting or attempting to arrest any person, or while such officer is engaged in the execution of any of the duties of such officer, shall be deemed guilty of a felony, and, upon conviction thereof, shall be imprisoned for a period of not less than one (1) year nor more than five (5) years, or fined not to exceed one thousand dollars ($1000) or both.'
Two issues are presented for review, which are: (1) Whether there is sufficient evidence to sustain the conviction and (2) Whether there was error in overruling defendant's motion for a finding on the evidence. For the purpose of this opinion these two specifications will be grouped and treated as one.
The facts of the case are that defendant-appellant was driving his 1957 Chevrolet motor car on a country road in Shelby County, Indiana, on August 15, 1970, with the hood standing straight up, obliterating his view except for a small opening at the bottom of the hood through which he could look out and see in front of him. A witness, Richard Cox, was meeting defendant-appellant and sounded his horn as he was approaching him and defendant-appellant pulled to the right side of the roadway and missed Mr. Cox. Mr. Cox also testified he was following Norman Murnan, Deputy Sheriff of Shelby County. The Deputy Sheriff was on a routine patrol, heading in a southwesterly direction on London Road.
The Deputy Sheriff had observed the defendant-appellant on the public highway and had observed defendant-appellant meeting the witness Cox to the rear of the Deputy Sheriff, after which the Chevrolet proceeded up the London Road to the intersection with 700 West. The Deputy Sheriff cut through the London Cemetery and cut over to 700 West and headed north behind the 1957 Chevrolet of the defendant-appellant. This car was kept in sight as it proceeded north to the Sugar Creek Addition.
The Deputy Sheriff closely followed the black Chevrolet, which continued to be driven with the hood up, when it turned on 800 North, went to the first street in the Sugar Creek Addition and turned back north.
Defendant-appellant, while driving his 1957 Chevrolet in the Sugar Creek Addition, ran a stop sign at an intersection within the addition, headed east for one block, turned back south and turned into the yard of a home in said addition.
The Deputy Sheriff turned on his red light after the 1957 Chevrolet ran the stop sign and followed said automobile until it stopped at defendant-appellant's residence. After the car stopped defendant-appellant got out of the driver's side and a woman, who was later determined to be defendant-appellant's wife got out of the passenger's side of the car. It was at this time that defendant-appellant's wife told him the police were behind him. They had stopped in the street in front of his home.
Deputy Sheriff Murnan walked into defendant-appellant's yard and asked for his driver's license and his registration. Defendant-appellant took something out of his pocket, threw it through the open window of the car into the front seat and said, in effect, that if the Deputy Sheriff (now and at the time of the trial the duly elected Sheriff of Shelby County, Indiana) wanted the 'sons of bitches' to get them himself.
The Deputy asked him again for the articles and observed a rifle laying on the back seat of the car. Yeley jerked open the passenger's door and the Deputy Sheriff was standing right beside him and told him that he was going to have to cite him for reckless driving. The Deputy then sat on the right edge of the front seat to look for the keys and registration in the glove box and again asked Yeley where they were and got the response, directed to the Deputy Sheriff and the Special Deputy Sheriff, that he would kill them, calling them a name so vile that the court will not publish it in this opinion. At that time the Deputy glanced out of the corner of his eye and the rifle was right at his head ahd held by Yeley. The Deputy grabbed the muzzle of the gun and a tussle ensued between them. Both men went to their knees and the Special Deputy was called, came and grabbed Yeley, who was subdued and the gun taken from him and he was handcuffed with his hands in front of him. Yeley then, while handcuffed, went to the porch of his home and was followed by the officers, and picked up a three legged metal grill and swung it at one or both of the officers.
A number of witnesses were called and testified, most of whom corroborated the evidence as above set out, although there was a dispute as to some of the evidence.
The defendant-appellant Yeley testified in his own behalf and said that he had been squirrel hunting and the gun was unloaded, which it was, and that he had had trouble with his car and that was the reason the hood was up. He further testified on cross examination that he had been at Walnut Grove from about noon until 7 P.M., during which period of time he had had beer and other things to drink; that during that period of time he had had as many as twelve beers to drink but that he knew what he was doing when he left Walnut Grove.
He further testified that he had seen the car following him home but did not know it was the Sheriff until he got out of his car and walked into his yard. He further said when he started into the house he was away from them and did not tell them he was going to get another gun and shoot them.
There was evidence of witnesses that during the scuffle over the rifle at another time the defendant-appellant threatened to kill the Deputy Sheriff and the Special Deputy Sheriff; that his language was abusive and he was loud and quarrelsome.
Defendant-appellant testified that the Sheriff at no time prior to the scuffle for the gun ever told him he was under arrest, had ever offered to put handcuffs on him, or told the defendant anything that led him to believe that he was under arrest. He testified that he was told he was under arrest after he had been handcuffed and had swung the charcoal grill at the officers. He further claimed that the arrest for reckless driving came the next day while he was in jail.
Under the above evidence, we are of the opinion that there was sufficient evidence upon all necessary elements of the offense charged to sustain the conviction.
The defendant-appellant insists that he was not arrested for the traffic violation until after the ticket was written out and handed to him and he was told he was under arrest. His authority is Machlan v. State (1967), 248 Ind. 218, 225 N.E.2d 762. In the Machlan case the defendant was injured and was taken to the hospital where the officer who attended the scene of the collision saw the defendant, Machlan, being administered to for injuries sustained in the collision, and had a conversation about an arrest. The Supreme Court, in an opinion by Judge Myers, concurred in by Judge Jackson, said they were not persuaded to conclude that an arrest was made then since the officer went into another room and made out a 'ticket' which was not given to the defendant, but was given to him later after a 'search' of his automobile when he was at police headquarters, where he signed it. Justice Arterburn dissented in this opinion and Justice Hunter did not participate.
In the case at bar the then Deputy Sheriff informed the defendant-appellant of the fact he was under arrest before there...
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