Minne & Sorenson, by Francis J. Brown, Phoenix, attorneys for appellant Gorman.
[78 Ariz. 216] James H. Garica, Phoenix, for appellant Kurtz.
Ross F. Jones, Atty. Gen., and William T. Birmingham, Asst. Atty. Gen., for appellee.
Defendants, Walter Kurtz and William Gorman, were jointly charged by an information filed in the superior court with obstructing a public officer, a felony. There was a trial before a jury, which resulted in separate verdicts of guilty, and from the judgment rendered thereon they have duly prosecuted a joint appeal to this court. The sentences imposed were one and onehalf to three years in the state penitentiary at Florence, Arizona.
The sole assignment of error is that the trial court was mistaken, as a matter of law, in not granting their motion for a directed verdict at the close of the State's case. The legal question presented for our determination is whether duly appointed and acting city of Phoenix police officers, when privately paid and employed during off-duty hours, as special officers to maintain
order and keep the peace, are 'public officers' within the meaning of that term as used in the penal statute.
The facts, which must necessarily be based upon the State's evidence as neither defendant called witnesses or elected to testify, are:
At 9:00 p. m. on the night of July 4, 1953, Frederick Green, Earl Irving, and Lucien L. Luckett, city of Phoenix police officers, presented themselves, dressed in regulation uniform, for work at Riverside Ballroom-a a dance pavilion within the Phoenix city limits-where they were employed by the ballroom operator to preserve order and protect his property while dances were in progress on the premises. It was the custom and policy to close such dances at 3:00 a. m.
Shortly after this hour in the early morning of July 5, 1953, when most, if not all, the dancing patrons had left the ballroom and while the officers heretofore named were waiting for the manager to pay them, their attention was called to a disturbance occurring outside the ballroom on their employer's premises. Upon their arrival at the scene they found a police car and two on-duty officers of the Phoenix police in the process of arresting two girls and placing them in the patrol car. A crowed of approximately a hundred persons had collected and some among them were shouting abusive language at the arresting officers. As the police car was about to depart defendant Walter Kurtz placed his head inside the car window on the right side, grabbed the door handle and in the presence of the women shouted vile, obscene and abusive language at the officers. Thereupon Officer Irving, who was standing within an arm's length of defendant Kurtz, placed him under arrest for using obscene language in the presence of women, which is a violation of Section 43-3001, A.C.A.1939 and Section 83, Chapter 29 of the 1951 Code of the [78 Ariz. 217] City of Phoenix. As Officers Green and Irving were escorting Kurtz to the ballroom office and were approximately forty feet from the entrance, Gorman, the other defendant, jumped upon Officer Irving's back, pulled him to the ground and kicked and struck him. At the same time Kurtz broke loose and hit Officer Green on the forehead and 'kneed him' in the right leg as they fell to the ground. With the assistance of Officer Luckett and the free use of 'black jacks or saps' both defendants were finally subdued and taken inside the dance hall. Additional police were called and the crowd, which was then attempting to break down the ballroom door and effect a release of defendants, was dispersed. Defendants were finally taken to jail in the paddy wagon. Later a criminal complaint was filed, and after a hearing was had the defendants were held to answer to the superior court.
The statute upon which this prosecution rests provides:
'Every person who wilfully resists, delays or obstructs any public officer in the discharge or attempt to discharge any duty of his office, when no other punishment is prescribed, is punishable by fine not exceeding five thousand dollars ($5,000), and imprisonment in the state prison not exceeding five (5) years.' Section 43-3910, A.C.A.1939.
Defendants in the brief seek to justify their admitted resistance of the arresting officers upon the ground that Irving and Green were not at that time 'public officers' discharging or attempting to discharge the duties of their office, but were stripped of their official character and capacity and relegated to the status of being servants of the proprietor by whom they were employed as 'bouncers' or 'watchmen', and therefore they urge the motion for a directed verdict should have been granted.
At the outset it should be noted that we have heretofore held that members of an incorporated city police force are 'Public Officers', Russell v. Glascow, 63 Ariz. 310, 162 P.2d 129, nor can it be questioned that they are such within the meaning of Section 43-3910, A.C.A.1939, supra. See Tomaris v. State, 71 Ariz. 147, 224 P.2d 209. Cf. Stapleton v. Frohmiller, 53 Ariz. 11, 85 P.2d 49; Section 12-101 et seq., A.C.A.1939. As heretofore stated the question
we must decide is whether officers when engaged in off-duty private employment, as in the instant case, thereby lose their official status to the extent that their acts ...