State v. HuguetState v. Huguet
Eight defendants were charged in one bill of information (Nо. 65025) with resisting an officer in violation of
The state‘s answers to the bill of particulars gives the following facts: on the evening of June 4, 1978, defendants were standing outside the Mason Nez Liquor Store in Covington, Louisiana when Officers Edwards and Johnson, who were patrolling the area, observed the large number of individuals drinking out in the street. With no intention of arresting аnyone, the officers asked the group to take their beer into the bar or elsewhere and move out of the street. At some point, Officer Pechon arrived and was the target of a beer bottle thrown by one of the defendants, Sterling Wayne Smith. Smith was arrested for disturbing the peace. All the others were told to move on, but failed to obey. The defendants were then booked on various charges.
Assignment of Error No. 2
The defense contends by this assignment that the trial court erred in denying the motion to quash because the information failed to allege the offense of resisting an officer,
“Unlawfully and intentionally opposed and obstructed Ptn. Ann Edwards and Res. Ptn. Robert Johnson, members of the Covington Police Department, acting in their official capacity and authorized by law to make a lawful arrest, by congregating with others on a public street, and refusing to move on when ordered to do so by the said officer‘s (sic), in violation of
R.S. 14:108(d) .”
R.S. 14:108 provides:
“Resisting an officer is thе intentional opposition or resistance to, or obstruction of, an individual acting in his official capacity and authorized by law to make a lawful arrest or seizure of property, or to serve any lawful process or court order, when the offender knows or has reason to know that the person arresting, seizing property, or serving process is acting in his official capacity. The phrase `obstruction of’ as used herein shall, in addition to its commоn meaning, signification and connotation mean:
(a) Flight by one sought to be arrested before the arresting officer can restrain him and after notice is given that he is under arrest.
(b) Any violence toward or any resistance or opрosition to the arresting officer after the arrested party is actually placed under arrest and before he is incarcerated in jail.
(c) Refusal by the arrested party to give his name and make his identity known to the arresting officer.
(d) Congregates with others on a public street and refuses to move on when ordered by the officer.
Whoever commits the crime of resisting an officer shall be fined not more than five hundred dollars or be imprisoned for not more than six months, or both.”
The state and defense hold different views of the conduct which
In Cox v. Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965), the United States Supreme Court held unconstitutionally broad
“A. Whoever with intent to provoke a breach of the peace, or under circumstances such that a breach of the peace may be occasioned thereby:
(1) crowds or congregates with others. . . in or upon . . . a public street or public highway, or upon a public sidewalk, or any other public place or building . . . and who fails or refuses to disperse and move on. . . when ordered so to do by any law enforcement officer of any municipality, or parish, in which such act or acts are committed, or by any law enforcement officer of the state of Louisiana, or any other authorized person . . .
shall be guilty of disturbing the peace.”
In passing on a motion to quash, the trial court must determine whether the facts set forth in the bill of particulars, taken in connection with the indictment, are sufficient to constitute a crime; the state, of course, is limited in its proof to the facts recited in the bill of pаrticulars. State v. Heymann, 256 La. 18, 235 So.2d 78 (1970). As this court explained in State v. Legendre, 362 So.2d 570, 571 (La.1978):
“To have a valid trial it is sacramental that an offense punishable under a valid statute or ordinance be charged. And when an indictment is defective it should be quashed when it fails to charge the offense intended to be chаrged in the manner required by law. It will not do to base an indictment . . . upon an allegation of fact which cannot conceivably satisfy an essential element of the crime, and compel the accused to withstand the rigors of a jury triаl with no expectation that a conviction can be supported by such an allegation. . . .” (Emphasis added).
In the instant case, the state‘s responses to the bill of particulars indicate that the officers were not attempting to serve process or seize property and that “[t]he officers had no intention of arresting anyone (before the circumstances giving rise to the charge of resisting an officer). They merely requested the group to takе their beer into the bars or elsewhere and to move out of the street.”4 Further, the defense asked in request 8 of the bill of particulars, “What actions on the part of the officers Edwards and Johnson were opposed or obstruсted by defendants?” The state‘s written response was, “The fact that the defendants failed to obey a lawful order of the police officers, opposed and obstructed the officers,” and in open court its amended answer5 explained that the lawful order was “to disburse [sic] and go back inside with their beer bottles.” The final amended answer accepted by the trial court was:
“Your Honor, if a police officer is working in his official capacity and sеes a
crowd of people gathered that could be instigating riots or anything, the police officer stops and tells them, `Look, I don‘t want to put anybody under arrest. Go back inside and take your bottles in.’ He doesn‘t have to place them under arrest. But as soon as someone starts to obstruct that (order), that would be resisting a lawful officer who is lawfully authorized to make an arrest, and he should reasonably know that if he‘s in uniform.” (Emphasis added).
The state set out faсts in the responses to the bill of particulars to show that the defendants were arrested for disobeying the general order to move on, but the state did not attempt to set out facts to show that the defendants’ disobedience to this order obstructed the officers, acting in their official capacity, while attempting to seize property serve process, or arrest Smith for throwing the beer bottle. The motion to quash the information charging a violation of
Therefore, the district court‘s denial of the motion to quash the bill of information charging the eight defendants with violating
Huguet also complains that he was charged in another bill, No. 65037, with violating
SUMMERS, C. J., dissents from the decree quashing bill of information No. 65025 and concurs in the denial of the motion to quash bill of information No. 65037.
Notes
In addition the defendants were also charged by bill of information with the following:
Mark Huguet—
Glenn Lavigne—
David London—
Edward Sharp—
Michael Smith—
Richard Smith—
Sterling Wayne Smith—
Wallace Smith—
State v. Wallace Smith, 65027, State v. Michael Smith, 65032, and State v. Richard Smith, 65035 were nolle prossed.
The defense argues:
“You go back to 14:108, the very last part of the preamble to that, it uses this language—after it sets these three circumstances forward, it says, `When the offender knows or has reason to know that the person arresting, seizing property, or serving process is acting in his official capacity.’ It re-emphasizes those three categories. It doesn‘t allow an officer to just because he has his uniform on and his badge to do anything that he wishes and let it fall under the heading of `official capacity.’ It tells you right here what his official capacity has to be . . .”
The defense was dissatisfied with the state‘s written response:
“BY THE COURT:
You mean how they opposed and obstructed?
DEFENSE:
Well, what constituted the violation. What facts constituted it.
STATE:
Your Honor, I think it‘s also stated in some of these, the initial people were requested, ordered, whatever, to go inside with their beer bottles or to disburse [sic], and that would be acting in their official capacity and they were in uniform, I believe, at the time.” (Emphasis added).