Hess v. State ( 1973 )

Concurring Opinion

Prentice, J.

Although I dissented in the case of Whited v. State (1971), 256 Ind. 386, 289 N. E. 2d 149, my dissatisfaction therein was not with the statement of the law by the majority but rather with its application to the facts of that particular case. In the case at bar, the evidence discloses to me that the conduct of the appellant was illegal, as tested by the standards of that case and also by the “clear and present danger” test of Brandenburg v. Ohio (1969), 395 U.S. 444, 89 S. Ct. 1827, 23 L. Ed. 2d 430 and Terminiello v. Chicago (1949, 337 U.S. 1, 69 S. Ct. 894, 93 L. Ed. 1131 and the “immediate threat” test of the most recent case of Gooding v. Wilson (1972), 405 U.S. 518, 31 L. Ed. 2d 408. The acts or words complained of must be viewed within the context of the circumstances that surrounded them. “The probable and natural consequences of the conduct is the important element.” Whited v. State (Dissenting Opinion) supra, citing State v. Korich (1949), 219 Minn. 268, 17 N. W. 2d 497. The crowd was volatile and the police officers under stress.

_ “Thus, when a policeman is in the proper performance of his duty and another by conduct set forth in the statute and which is calculated to be, or is reasonably likely to be offensive to him, such conduct would be disorderly within the intent of the statute, if it is probable and natural that the consequences will be to divert or interfere with or limit his effective functioning and thereby create, contribute to, or foster the continuance of a disturbance to the peace and quiet of any neighborhood or family. While it is to be hoped that, among other desirable qualities, our policemen will have an extraordinarily high degree of emotional stability^ we nevertheless are not justified in presuming such. We will remember that they labor under difficult and often exasperating circumstances, and we cannot ascribe to them a tolerance or boiling point higher than that of the ordinary man. Further, we have a right to expect him to be professionally competent and will presume him to be so. Therefore, if he clearly oversteps the boundaries of proper police action, he will be presumed to have done so with knowledge of the same and a wilful disregard of the rights and sensitivity of the assailed. Under such circumstances, he as the offender, is entitled to no greater degree of civility than any other person and responsible for the probable and natural consequences. This is not to say that every miscue of a policeman will justify provocative conduct by the person thereby offended or inconvenienced. The tests are whether or not the action which provoked the assault was, under the circumstances, such as would be acceptable of a professionally competent policeman, and whether or not such action, under the circumstances, would incite the anger of a person of ordinary emotional stability. If the answer to the first question is ‘No’ while the answer to the second is ‘Yes’, the probable and natural consequences will be held to be the conduct of the policeman. If, however, the answer to the first question is ‘Yes’ or if the answer to the second question is ‘No’, the policeman’s action will not be held to justify conduct calculated to be, or reasonably likely to be offensive to him or to incite others to be offensive to him.” Whited v. State (Dissenting Opinion) supra, 269 N. E. 2d at 155.

As to the majority’s view, as written by Justice Givan, I believe that a trial de novo is not a review of the proceedings had before the lower court, but there is yet another reason to deny relief upon the issue of the sufficiency of the affidavit. Even if, as urged by Appellant, the motion to quash was before the trial judge, he did not rule upon it; and we cannot assume that it was considered and overruled. By proceeding without a ruling and without protest, Appellant waived any error that might otherwise have been averted. Chustak et al. v. Northern Indiana Public Service Co. (1972), 259 Ind. 390, 288 N. E. 2d 149; Barnes v. State (1971), 255 Ind. 674, 266 N. E. 2d 617; Wilhoite v. State (1971), 255 Ind. 599, 266 N. E. 2d 23; Brown v. State (1970), 255 Ind. 47, 262 N. E. 2d 515.

DeBruler, J., concurs.