Judges： Brien, Duncan, Galbreath
Filed Date： 6/16/1975
Status： Precedential
Modified Date： 11/14/2024
OPINION
The defendant has appealed from his misdemeanor conviction and judgment based thereon for the offense of “Interfering with an Officer”.
In his first assignment of error, the defendant alleges that the presentment does not state a statutory offense.
The presentment in this case charged: The Grand Jurors for the State of Tennessee, duly elected, empaneled, sworn and charged to inquire for the body of the County of Lewis, and the State aforesaid upon their oath aforesaid, present that Lynn Pope heretofore, to-wit, on the 3rd day of December 1973, before the finding of this indictment, in the county aforesaid, unlawfully, knowingly and willfully did oppose one James Johnston and one Kenneth Mash, duly appointed, qualified and acting police officers of the City of Hohenwald, Tennessee, who were then and there arresting Kenneth Jackson and Michael Cross for the offense of breaking into a bank in the City of Ho-henwald, being committed then and there in the presence of said officers, said opposing said officers consisted of holding the arm of Officer Johnston and causing confusion by shouting and otherwise attempting to hinder said officers in making said arrest; against the peace and dignity of the State.
Since the officers were not armed with a legal writ or process, then T.C.A. § 39-3104 (resisting officer serving process) would not apply. Maverty v. State, 78 Tenn. 729; State v. Wright, 164 Tenn. 56, 46 S.W.2d 59.
Thus, we agree that the presentment does not charge a statutory offense, but it does state a common law offense. 58 Am. Jur.2d, Obstructing Justice, §§ 10 and 12, and 67 C.J.S. Obstructing Justice § 5. See also cases therein cited. In Tennessee, where no statute is in force, then common law crimes are recognized. Goff v. State, 186 Tenn. 212, 209 S.W.2d 13.
Interfering with an officer while in the performance of his duties is a common law offense in Tennessee and is recognized as such by State v. Wright, supra. As stated in the Wright case, for an indictment to be valid it must allege that (1) the officer was acting lawfully; (2) the official character of the officer; and (3) the nature of the resistance by reciting facts relative thereto.
In Wright, the court held the indictment did not contain sufficient allegations to make out the offense under T.C.A. § 39-3104, nor did it contain sufficient criteria as above stated to state a common law offense; however, the instant presentment is much broader, and it does allege all of the criteria required by the Wright case.
Also, it is helpful to keep in mind that Tennessee courts have long held that misdemeanor indictments require somewhat less specificity than felony indictments. The same strictness of averment is not necessary in an indictment for misdemeanors as in felonies. Sanderlin v. State, 21 Tenn. 315; Estep v. State, 183 Tenn. 325, 192 S.W.2d 706; State v. Hughes, 212 Tenn. 644, 371 S.W.2d 445. A substantial description is all that is required in misdemeanor indictments. State v. Kilgore, 25 Tenn. 44; State v. Pennington, 40 Tenn. 119; State v. Odam, 70 Tenn. 220; McLemore v. State, 215 Tenn. 332, 385 S.W.2d 756.
Applying the foregoing principles of law to the presentment at hand, we are of the opinion that the allegations made therein well state a common law misdemeanor of “interfering with an officer while in the performance of his duties”.
The first assignment is overruled.
In his second assignment, the defendant contends that the court’s charge was materially at variance with the presentment and the proof.
The trial judge, even though he was charging on a misdemeanor, gave a full detailed charge to the jury.
The defendant made no objection to the charge at the trial and offered no special requests. Therefore, he is precluded from now complaining about the charge. Turner v. State, 188 Tenn. 312, 219 S.W.2d 188; Cook v. State (Tenn.Cr.App.), 506 S.W.2d 955.
Nevertheless, we have reviewed the court’s charge and we conclude that he adequately covered the law on the common law offense involved. Looking at the entire charge, we feel that it was not inconsistent with the presentment and the proof.
The defendant’s second assignment is overruled.
In his third assignment of error, the defendant alleges that the judgment entered by the court was materially at variance with the indictment and the proof.
As will be reflected hereinafter, under the assignment on the evidence, the proof was consistent with the allegations in the presentment. The jury returned a general verdict of guilty. This was a one count presentment and the general verdict of guilty will be applied to the offense which is alleged in the presentment and which is sustained by the evidence and proof. This presentment, as we have held, charges a common law offense of “interfering with an officer while in the performance of his duties”, and the evidence and proof make out this charge. Accordingly, we apply the verdict and judgment to this offense. T.C.A. § 40-2519; Mendolia v. State, 192 Tenn. 656, 241 S.W.2d 606.
The third assignment is overruled.
In his fourth, fifth and sixth assignments of error, the defendant alleges that the proof was not sufficient to support the verdict and that there was a material variance between the presentment and the proof.
In considering these assignments, we must scrutinize the proof, which is summarized as follows:
On December 3, 1973, a burglary of a bank in Hohenwald was taking place. Officers arrived on the scene and saw windows broken out and observed two (2) persons running from the bank. The officers arrested one of the fleeing individuals nearby, and he was placed in a police car. The officers, being of the belief that another or others were still in the bank, were in and about their duties in an attempt to ferret them out of the bank. At this juncture, the defendant, Lynn Pope, and several friends came up to the scene in an automobile. Officer Kenneth Mash testified that Pope’s friend, Muriel Cowie, got out of the car. The defendant Pope testified that he, himself, got out of the car on this first occasion. At any rate, all of the individuals in the car,
The defendant Pope testified that he was a friend to all of the individuals in the car, and also a close associate of Mike Cross, who had been arrested; that he was also a friend to a Kenny Jackson, whom he thought to still be in the bank; that he had been on the scene on four occasions, but that one time the car just passed by real slow, without stopping. He admitted that he had been told by the officers to leave on the first two occasions; that he was aware that the officers had arrested Mike Cross and had him in the police car; that he may have used some profanity, but denied that he interfered with the officers, and denied he grabbed Officer Johnson; and that his concern was the safety of his friends.
In considering and passing upon an assignment of error challenging the sufficiency of the evidence to warrant and sustain the verdict of the jury in criminal cases, this Court is bound by the rule that a conviction will not be reversed on the facts unless it is shown by the defendant that the evidence preponderates against the verdict and in favor of his innocence. McBee v. State, 213 Tenn. 15, 372 S.W.2d 173; Schweizer v. State, 217 Tenn. 569, 399 S.W.2d 743; McGhee v. State, 3 Tenn.Cr.App. 324, 460 S.W.2d 875.
The jury, by their verdict accredited the testimony given by the State’s witnesses.
Applying this evidence to even that portion of the presentment that charges the defendant did oppose and hinder the officer in arresting “Mike Cross”, it compels us to conclude that the defendant did' interfere with the officers while in the performance of their duties. While Mike Cross had been arrested and placed in the police car when the defendant appeared on the scene, such arrest was still in progress. The mere fact that Cross was in the police car did not terminate the arrest at that point. An arrest is a continuing process from the time one is apprehended until he is placed in jail.
In State of North Carolina v. Leak, 11 N.C.App. 344, 181 S.E.2d 224, the defendant was arrested on a warrant and taken before a magistrate and after proceedings there, he was being escorted to jail when he struck one of the arresting officers. In affirming his conviction for resisting arrest, the court held:
“We hold that an ‘arrest’ does not necessarily terminate the instant a person is taken into custody; arrest also includes ‘bringing the person personally within the custody and control of the law’. The arrest of defendant in the instant case did not terminate until he was delivered to the jailer and properly confined.”
We find no Tennessee case that delineates just when an arrest is completed, but it seems elementary that an arrest is not completed until the arrestee is placed in jail. We conclude that the law on this point is well stated in the Leak case, and we adopt it as applicable to the case at hand.
Again on cross-examination, the record reflects the following telling testimony from Officer Mash:
“Q Well how were you trying to get them out of there, did you have a fog horn or anything?
A Our cars are equipped with them.
Q Are you using it?
A No, because they was causing such disturbance that we had to stop what we were doing to do something with them, we couldn’t have people everywhere up at the time in the situation it was. (Emphasis ours.)
Q You were trying to clear the streets in otherwise?
A Yes, sir, we was trying to get the people back because we didn’t know what we had.”
While, as a general proposition, mere arguments or remonstrances are not sufficient to constitute the offense of interfering with an officer in the performance of his duties, nevertheless it has been held that such may become sufficient where their intensity, or the totality of several acts, is such as to amount to an interference with the officer. See 44 A.L.R.3d 1018, 1035, and cases there cited.
Unquestionably, in all jurisdictions, if force is involved, the offense is complete. In the instant case, the evidence shows that not only was the defendant interfering by hollering, screaming and cursing, but he also used force by grabbing the arm of one of the officers, at a time when the arrest of Cross was still in progress. State of North Carolina v. Leak, supra.
Certainly, law abiding citizens should be encouraged to aid the police in their arduous tasks, but when one appears on the scene of a difficulty and acts as the defendant did on this occasion, then he is not behaving as a helping hand to the police officers and he cannot so act with impunity. In this case, these officers were confronted with an extremely serious situation at the bank, and in spite of repeated harassment and interference by the defendant, they acted with unusual restraint until the defendant’s actions compelled them to arrest him.
The evidence makes out the common law offense as charged in the presentment. It does not preponderate against the verdict, and we overrule the assignments on the evidence.
In the defendant’s seventh assignment, he contends the court erred in ruling that the issue of defendant’s identity was not relevant or material.
At the trial stage it was left unclear just what point the defendant was attempting to establish. Some reference was made by defendant’s counsel that at the jail, a person, other than the defendant, was referred to by one of the officers as being the defendant Pope. At the hearing of the motion for a new trial, the court permitted the testimony of Muriel Cowie to be entered in the record. Cowie testified that he had been in a car with the defendant Pope on the night of the incident and that he was the person ordered to leave the bank’s premises both times. He also testified that he had been identified in jail as being Lynn Pope, and that both he and Pope had a full beard. This testimony strikes us as being a distinction without a difference. It will be recalled that Officer Mash stated that the defendant, Cowie and others came up in the car on the first occasion; that Cowie got out and was told to leave and “they did”; that they returned, and Pope got out and was asked to leave; and that the car came back and Cowie got out on that occasion. We agree with the trial judge that the question of identity was not an issue.
We find no merit to this assignment.
In his eighth assignment of error, the defendant alleges that he was unduly prejudiced because of the remarks and arguments of the prosecuting attorney.
The record reflects that no objection was taken by the defendant to the arguments of the attorney general at the trial, and thus we are precluded from considering same. Harper v. State, 206 Tenn. 509, 334 S.W.2d 933; Turner v. State, supra; Staggs v. State, 210 Tenn. 175, 357 S.W.2d 52.
In his last assignment, the defendant says the verdict shows malice and caprice on the part of the jury. The punishment assessed was within the limits provided by law for this misdemeanor offense. We are of the opinion that the punishment was fair, just and reasonable, under the facts and circumstances present in this case. Hardin v. State, 210 Tenn. 116, 355 S.W.2d 105; Wheeler v. State, 220 Tenn. 155, 415 S.W.2d 121.
Thus, from all of the foregoing, we conclude that there are no errors in this record. We affirm the defendant’s conviction.