State v. Rousseau

Hill, J.

Harold R. Rousseau appeals his conviction on a charge of burglary in the second degree, urging that a Swiss watch, exhibit No. 1, should not have been received in evidence against him, and that his pretrial motion to suppress that evidence should have been granted.'

The pertinent circumstances are that a Seattle police officer, knowing appellant to be an ex-convict and knowing he had given an assumed name to the pawnbroker, saw the appellant attempting to pawn a Swiss wrist watch worth several hundred dollars for thirty dollars, after telling the pawnbroker that he had recently bought it at a jewelry store for one hundred dollars. The officer arrested the appellant after he left the pawnshop and, on searching him, found, in addition to the Swiss watch, three other wrist watches. The officer permitted the watches to remain in appellant’s possession at that time.

Two judges of the superior court for King county concluded that the arrest and search were unlawful because the officer did not then know that the Swiss watch had been stolen; and we shall assume, for the purpose of this opinion, that they were correct.

The arrest occurred near First and Cherry streets in Seattle, and the officer and the appellant, who at his request had not been handcuffed, then started to go to appellant’s automobile, proceeding east on Cherry street from First to Fifth avenue, where they stopped momentarily for a traffic light. As they stepped off the curb to continue eastward across Fifth avenue, the appellant pushed the officer into the path of an approaching automobile and started running west down Cherry street. The officer was able to catch himself on the hood of the car and sustained no injury, and immediately pursued the appellant. As the appellant attempted to rim across Second avenue against a red light, he was hit by an automobile and sustained a cut over his eye, but continued his flight. The officer, however, finally caught up with him and took him into custody a second time, and then took him to the city jail in a prowler car. When appellant was searched there, the Swiss watch and the other watches were taken from his person. (The foregoing is the officer’s version of what happened, and this the judge hearing the motion to suppress the evidence had a right to believe, as did the judge who tried the case and admitted the watch in evidence.)

It developed that the Swiss watch had been stolen from an apartment, and appellant signed a confession telling how he had entered the apartment and taken the watch. He was tried on a charge of burglary in the second degree and convicted.

It is appellant’s contention that it was error not to grant his motion to suppress the evidence taken from his person, and that it was likewise error to admit the Swiss watch in evidence, because his arrest and search and the seizure of the watches were unlawful.

We start with the assumption that the first arrest and search were unlawful. The decisive issue then becomes: Were the second arrest and the search incidental thereto lawful?

It is the law that a person illegally arrested by an officer may resist that arrest, even to the extent of the taking of life if his own life or any great bodily-harm is threatened. John Bad Elk v. United States, 177 U. S. 529, 44 L. Ed. 874, 20 S. Ct. 729; State v. Gum, 68 W. Va. 105, 69 S. E. 463, 33 L. R A. (N.S.) 150. The extent to which one illegally arrested may carry his resistance when the acts and conduct of the officer do not threaten his life or any great bodily injury, presents a question on which there is considerable conflict of authority. It is generally recognized, however, that a man may not oppose an arrest which merely threatens his liberty with the same extreme measures permissible if an attempt is made on his life, because the individual wrongfully deprived of his liberty has a supposedly adequate redress by a resort to the laws. State v. Gum, supra. There is authority to the effect that, even in the case of an unlawful arrest, the person arrested would be warranted in using force and inflicting personal injury upon the officer only in self-defense, the necessity or apparent necessity for which must appear. State v. Spaulding, 34 Minn. 361, 25 N. W. 793.

We find ourselves in accord with the supreme court of West Virginia, which, after an extensive survey and summary of the various holdings in that and other states, laid down the rule that the force used in resisting an unlawful arrest must be reasonable and proportioned to the injury-attempted upon the party sought to be arrested, and he cannot use or offer to use a deadly weapon if he has no reason to apprehend a greater injury than a mere unlawful arrest. State v. Gum, supra. A similar rule was stated in a recent case, State v. Robinson (1950), 72 A. (2d) (Me.) 260, where it was said:

“An illegal arrest is an assault and battery. The person so attempted to be restrained of his liberty has the same right, and only the same right, to use force in defending himself as he would have in repelling any other assault and battery.”

Had the appellant merely attempted to escape from the officer by flight, there would be no question but that the second arrest was as illegal as the first.

“Every man, however guilty, has a right to shun an illegal arrest by flight. The exercise of this right should not, and would not, subject him to be arrested as a fugitive.” Thomas v. State, 91 Ga. 204, 206, 18 S. E. 305; cited with approval in Porter v. State, 124 Ga. 297, 52 S. E. 283.

It is not the appellant’s flight, but the fact that he pushed the officer into the path of an oncoming automobile, which could have seriously injured or killed the officer as effectively as though the appellant had used a gun, a knife, or other deadly weapon, that raises the question of whether the appellant used unreasonable force in resisting arrest and thereby committed an unjustified assault upon the officer, which would make the second apprehension and arrest of the appellant lawful.

The issue of whether unnecessary force has been used in resisting arrest usually arises in prosecutions for assaulting or killing arresting officers, and in such cases that issue is usually a question for' the jury under all the circumstances. Harris v. State, 21 Ga. App. 792, 95 S. E. 268; 4 Am. Jur. 64, Arrest, § 92. But in a case such as this, it is an issue which must be passed upon by the court in the course of its determination of whether certain evidence should be suppressed, and whether or not it is admissible. To make the distinction clear as to the function of the jury in one type of case and of the court in the other, we would point out that if the appellant had been charged with assault upon the officer, the jury might have acquitted him of that charge because of a conclusion that (1) he did not actually push the officer or (2) did not use unreasonable force in resisting arrest; but if there was sufficient evidence to take those issues to the jury on an assault charge, the King county superior court did not err in holding that the appellant was subject to arrest for assault, and the officer who witnessed the assault (and, in this case, was its victim) was justified in making the arrest.

It is our view that a jury could have found that the appellant, in pushing an officer who had refrained from handcuffing him and who was using no force to detain him, into the path of an oncoming automobile, thereby subjecting the officer to the peril of serious and perhaps fatal injury, used unnecessary force in resisting arrest, and that his actions constituted a criminal assault. Appellant was, therefore, lawfully arrested following the assault, and the Swiss watch found on him by the search that was an incident of that arrest was .admissible in evidence against him on the present charge of burglary in the second degree. We therefore conclude that the judge who heard the motion to suppress the evidence did not err in denying that motion, and that the trial judge did not err in admitting the Swiss watch taken from the appellant as an exhibit in his trial on that charge.

It is suggested that the confession which the appellant made was secured by the use of force and duress. The jury was properly instructed as to the effect of force and duress as it may affect confessions, and there is no merit to this suggestion of error.

Nor is there merit to the contention that there was not sufficient evidence to sustain the conviction.

We commend counsel for both appellant and respondent for the manner in which this matter was presented in the superior court. The motion to suppress was heard by the Honorable Robert M. Jones, one of the judges of the superior court for King county, prior to the trial, and' he denied the motion. At .the trial, when counsel for the appellant, to preserve his record, objected to the admission of the evidence which appellant had sought to have suppressed, the record of the hearing before Judge Jones was made available to the trial judge, and his ruling as to the admissibility of the evidence in question was made on the basis of that Krecord.

The judgment appealed from is affirmed.

Schwellenbach, C. J., Hamley, and Olson, JJ., concur.