*1 Refining every compass, of the was most Oil & direction Humble We believe Martin, slight, not a seri- S.W.2d and risk of harm was Co. v. Tex. relies, heavily harm plaintiff ous one because the threatened so station, city, unsuspect- great, for the reason that the threatened volving a service pedestrians, ing only path business harm of a vehicle no existed as to invitation, etc., factually move, ordinarily is so different as which would not out of authority Furthermore, safe, quick no we path easy egress be here. and effected, under the facts excluding could be thus idea case, our instant defendant would not be great that there was threat of harm. principles very accountable under the an- McDonough crockett, j., and c. nounced Prosser and and subscribed to WORTHEN, JJ., WADE and concur. quoted by plaintiff follows: many “There are in which situations hypothetical reasonable man would expected anticipate guard Any-
against
the conduct of others.
experience
required
one with normal
there is an likelihood that occur, will reasonable care must de- precautions occa- against mand negligence sional which is one of the ordinary life, incidents human therefore, anticipated.” appears
It bodily to us that the risk of injury case, in this where there were but people
few safety about and where from a moving vehicle could be found in almost by in- charged P. Sandman
James the crime of formation with discharge of official public officer in the jury impaneled duties. After *2 attorney made his sworn and the district statement, for defendant opening counsel The motion interposed motion dismiss. in- ground that granted * formation, supplemented by opening state, by proof and an offer of statement out a offense. failed to make by appealed permitted The state has as propriety ruling. statute to test particulars bill and the offer The facts, pur- for the proof show these which pose review we must assume to of this 18, 1953, July true: On James party in a fishing and his P. Sandman Stinking County in Wasatch creek called Springs. Game Warden came Leo A. Cox upon lady party in the her noticed on clothing hamburger, indications use prohibited fishing by which as law he this with her state. conversation her a bit fishing learned that husband was down stream. The warden down then went and, approaching stream the defendant Sandman, him angling observed with bait which he said Gen., Callister, Atty. L. Walter R. E. He told Sandman that he was the Gen., appellant. Atty. Asst. Budge, requested to see warden and whereupon away turned Sandman respondent. Woolley, Ogden, for Arthur pole rapidly back and in a jerked forth CROCKETT, swishing which movement Warden Cox Justice.
77-39-4, 5, U.C.A.1953.
1. Section
terpreted dislodge we confront is whether the an attempt trial from the hold court motion to grabbed granting erred hook. Cox ground this; dismiss on the facts above a scuffleensued creek; prima set forth wherein do facie parties both fell into the not make out back, case of Mr. Cox violation of U.C. fell into the stream his A.1953, provides: rocks; lodging and “as he at- between two stream, tempted to head from the raise his “Every person resists, wilfully who violently was struck about the head and delays any public obstructs * * dis- defendant, discharging, attempting to face Sandman *. * charge, any duty office of his again regain able to Mr. [W]hen punishable $1,- exceeding fine not checking his feet while he was the flow county imprisonment 000 or * * * blood wound the de- from the jail exceeding year, one fendant Sandman took both.” * belt and was attached to his constituting thus an indictable misdemean- tipped the water or. rinsed the can and also broke out In order to make out offense under and threw the leader from the line appear duly (A) this statute it must and leader into the water.” *3 (B) engaged constituted in attorney It was stated the district that performance duty an (C) of official try prove to the state would not obstructed or resisted defendant. of was intended in the grabbing arrest, that performance an it was There can (A) be no that peace to the destruction evidence wardens are statute constituted done trying power, to which the warden was obtain. officers who have the “same procedure shall follow the same in making whether, questions note here that the We arrests, prisoners and in handling of circumstances, Mr. Cox could under general Code, and the enforcement of this arrest, initial made an whether with have 2 peace as other officers.” making an arrest he would have or without searching per- in justified been Respecting the (B) contention that greater and whether illegal for son performing was not an Warden Cox offi- than the was used circumstances violence duty, the Fish cial & Game laws make it so, and, thereof, the effect attempt if warranted to unlawful “take to using with take”3 bait.4 dealt which are herein. matters not. (Cum. 4. Angling 23-10-1, for issued Proclamation U.C.A.1953 2. Section 2—14, pursuant to U.C.A.1953 Section Supp.) 23 — U.C.A, 23-3-7, (Cum.Supp.), and Section (Cum.Supp.) (Cum.Supp.) 3. performance structing an officer in the officer to an only practical means for The it could duty destroying milk before his being violated the law is whether discover Inspector inspected by Public Milk inspection of be make an respect is to in this Similarly, in do so. the who was about under Acting being used. substances Maxcy8 the rel. v. State ex provi- “enforce statutory mandate Johnson juice citrus fruit jection of a chemical into was mak- Officer of this Code” sions ob- inspected held to be in about to bait fishermen as to the observations ing perform- inspector struction of His encounter locality using. his duties. ance of a sus- upstream had raised lady using ham- party might be her picion that had informed case at bar Mr. Cox approaching Mr. Sand- burger, warden. the defendant that he was to believe led him observations man his attempt what the defendant His to observe refusal Defendant’s the case. such was request see using as bait and his attempt to dis- and the inspection permit an and were consistent were not unreasonable could before Officer Cox pose duty. his Under the rationale warden’s be- inspect it further bolstered cases, in refus- defendant’s conduct above violating the defendant lief request disposing ing the the warden these facts law. Under inspect attempting warden was which the had not if he derelict his have been obstructing amounted to bait. inspect defendant’s sought to his officer in the question remaining is (C) The further of the statute. The court should violation in refus- conduct the defendant’s whether proceed. allowed the trial to bait and at- inspection of his permit ing to remanded, judgment is reversed to an dispose of it amounted tempting to jeopardy protec- but in view of the double an officer in the resistance of obstruction defendant, there can be no tion afforded duty. interfer- Such performance of in this proceedings further case.9 be in the form need not ence or resistance violence, but it suffi- physical force wade, McDonough, j., j., and c. direct action there be some cient concur. interference.6 affirmative amounting to held that People Rivera it was
Thus *4 HENRIOD, properly convicted of ob- the Justice. (Cum. 1311, Ma. 8. 99 So. 853. 5. Section Supp.) Thatcher, 108 Utah 157 P. 9. v. State 5(b). Obstructing Justice, C.J.S., § jeopardy attaches, 6. 258; as to when 2d Whitman, 93 Utah see State Reports 700. Porto Rico 7. 25 P.2d water and tipped the believe, suggested because I I concur * * * and broke can out also rinsed the and that the Utah by main opinion, and threw the line the leader from to authorize interpretable game laws are ” (Emphasis water.’ leader into the and fish- inspect a reasonably to wardens game added.) laws, to enforce order erman’s war- here that nothing there is and this case was dismissed Since that what concluding anyone in rant jury court taken from order of either to do was was about did or warden State, the court must be if the reversed any physi-
unreasonable, provocative the Bill of Particulars and the offer of what, interfere with that would cal violence proof, presented sufficient facts which believe, I a reasonable point, up to that possible would make it for reasonable minds statutory enjoinder warden’s exercise say beyond doubt a reasonable game laws. the fish enforce crime had been committed. Neither the Bill Information nor the WORTHEN, (dissenting). Justice specify game Particulars what the warden charged The defendant was dissent. attempting in the discharge do resisting with the crime of by information his duties which the defendant resisted. State of Utah at- public officer The information failed to state more than discharge his office. tempting to the language of the Bill statute. When the pertinent following facts stated in of Particulars was demanded the District opinion: majority Attorney set out the herein facts mentioned specified warden was * ** observed “The [Sand- performing following duties: angling ap- with bait he said man] “ * Cox, Leo A. while He told Sandman peared of his duties as a requested warden and he was game warden of whereupon the State of Utah Sandman turned to see the » ‡ ‡‡ jerked rapidly back away and swishing movement which in a Ward- forth This, best, at was a mere conclusion. attempt interpreted as an to dis- en Cox from the lodge grabbed hook. Cox The Bill of Particulars then states that fishing pole this; hold of the a the warden observed the defendant fishing parties wherein both fell ensued into using scuffle what to be * creek Mr. Cox was ground meat for bait. The ‘[W]hen Bill of Par- * * * regain his feet again able to alleges ticulars that defendant violated the took defendant Sandman of Section 76-28-54 attached to his belt and officer in discharge "of his duties. *5 '74 23-10-1, Fish & the 1953 concluding of the in
The Bill of Particulars provides: Game Code alleges: paragraph and Arrests. act- “Seizures A. Cox “That the said Leo law and authority the of ing within the all provided that further “Be it duties, the pursuant to scope the nets, tackles, seines, powder, ex- guns, State of the the statutes provisions of chemicals, lime, drugs, plosives, poison, provisions particularly the of Utah devices, traps used and snares shocking U.C.A.1953; 23-3-11, Sec- furs, of Section taking of in the unlawful by U.C.A.1953, amended 23-3-7, tion in found the game kind fish or 1953; Section Laws the Session by any person un- possession used of or 76- 23-3-21, and Section furs, transporting lawfully taking or 28-39, U.C.A.1953.” any kind, seiz- game shall be fish or arrest, making the officers ed the charged to been com- have is The offense the court that finding a By 18, 1953. the July mitted on they taking the were used in unlawful 1953, Utah, an act 39, Laws of Chapter furs, transportation game, fish or for the Code Fish and Game creating be and after the same shall confiscated Utah, provided that: “Title it was State game held fish and having been the repealed.” Annotated Code Utah months, period of six commission for Code, provi- Game Fish & By new auction shall be sold at repealed Title 23 were in commission, pro- contained sions game fish and re-enacted, enlarged pow- conveyed substantially therefrom ceeds game fund.” and Game Commis- Fish vested ers sion. having Not elected to arrest defend- (possibly because he was unwilling ant to- alleges that de- Particulars Bill of arrest on the evidence) make the available appeared to what fishing with fendant warden demanded that defendant ex- the ward- If hibit his bait. am of the that expert as an hamburger, and he en to be Attorney stipulated District since the hamburger, he it to be believed field pole by grabbing “the Mr. Cox the ar- under place the defendant was free warden, and grabbing un- defendant then he arrested Had rest. intended, of an authority con- of Section der the arrest, purpose for the of preventing Code, he & Game new Fish tained destroying of evidence and bait” we pole, defendant’s legally seized could required to determine the case as of the can and hook, tackle and bait line, game warden demanded time the to see the then or thereafter the officer resistance bait. defendant liable. make thereby estab- (ca- hamburger right warden have Does lished, might have arrested defendant. priciously otherwise) to demand exhibited? hook be bait on a fisherman’s But neither the Bill of Particulars nor statutory provision in the new There no proof offer of state that may demand code declaring hook was baited with or that hook be taken that bait on a fisherman’s *6 any hamburger was seen defendant’s bait exhibited; nor is there from the water can or in the stream after the any provision enjoining a fisherman dumped alleged out. Nor is it or establish- a to so exhibit demand of warden roily ed that the water was or clear—swift bait, any statutory nor were there his or sluggish deep or if the shallow. But — repealed legislation. warden saw what My any called to attention has been probably on the hook he would have been any case statute such as ours car- where dumped better able see a can of to it into part duty on of a fisher- ries with it the the same stream. he comply man to with the demand that ex- State, be further Let it conceded that the been hibit his bait. Nor has this Court issuing fishermen, may licenses to attach where the refusal to show cited to case reasonable conditions—one of might imposes penalty a on the fisherman obligation part well be the on the violating than the law much more severe fisherman to exhibit to warden his fishing with lures, requested his bait and whenever may be that most fish- conceded I think the bait on his hook. ermen, warden under if accosted legislature But fit until the sees to attach here, would detailed the circumstances licensing such conditions of a fisher- line, and bait from the lifted the man, unwilling judicially I am legislate it, the warden see water and allowed and make such statute the fisherman who would have resented the some fishermen his declines to show bait a violator of the interference.
warden’s law. pole, swishing if defendant’s Again, case, that in this when Let us assume Mr. his to see established the demand after right to see demanded defendant’s hamburger, fishing defendant complied with, was not and the demand might have been then made. The an arrest grabbed the from that Mr. Cox defend- tipped the contents of fact hands, raised the bait from the prove the water does not water into ant’s bait can the hook was hamburger, found that baited with an but if and he was This defendant or angleworm. other saw that contents of the can guilty would be held fisherman hamburger and knew the defendant’s licensed having indictable misdemeanor re- the demand to exhibit the bait. fused
Let it be assumed that refusing to bait was conduct in exhibit his unwilling resistance. am to concede that thereby resisted at- enjoined upon tempting discharge him, wit, demanding to see the bait. ruling
I am of the appeal trial court was correct and that the should be dismissed.
286 P.2d *7 LOVETT, Plaintiff Nellie A. Respondent, TRUST AND BANK CONTINENTAL corporation, COMPANY, Executor Giesy, known Mrs. J. U. Estate of also Giesy, Deceased, Defend- Juliet Galena Appellant. ant
No. 8199. Supreme Court of Utah.
Aug.