Opinion
No. 170S8.
Filed March 12, 1971. Rehearing denied May 13, 1971.
1. ARREST — Arrest for Assault and Battery — Requirement That Commission Be in the Presence and View of the Police Officer if Made Without Warrant — Testimony Sufficient for a Conclusion That Assault and Battery Was Committed in the Presence of the Police Officers. — Where police officers testified that defendant and his passenger were visibly scuffling in the front seat of an automobile which was weaving erratically across the highway and where the passenger-victim of the assault and battery had blood running from her nose and was yelling and screaming for the police officers to stop the defendant from beating on her, the officers had sufficient evidence at hand for a conclusion that an assault and battery was committed in their presence which made the arrest a valid one. p. 147.
2. ARREST — Arrest for Assault and Battery — Requirement That Commission Be in the Presence and View of the Police Officer if Made Without Warrant — Testimony Sufficient for a Conclusion That Assault and Battery Was Committed in the Presence of the Police Officers. — In order to constitute an arrest for assault and battery in which the offense was committed in the presence and view of the police officer, it is not necessary that the police view every event leading to the assault and battery since only a single transaction may be involved. p. 147.
3. ARREST — Where Police Officers Fail to Act in a Clear and Timely Manner Thus Making an Attempted Arrest Illegal — Clear and Timely Manner. — Defendant contends that if the police officers in fact observed an assault and battery being committed, then no investigation and questioning would be necessary before an arrest and if such investigation and questioning took place, then the arrest would not be made in a clear and timely manner and would therefore be illegal. The police officers have a right to quickly investigate a situation of this kind before placing a defendant under arrest. Where there is only a brief interval between the stopping of the defendant's car and his arrest, the arrest is not illegal. p. 148.
4. ARREST — Where Police Officers Fail to Act in a Clear and Timely Manner Thus Making an Attempted Arrest Illegal — Clear and Timely Manner. — An arrest must be made at the time the offense, or some part of it, is being committed, or within a reasonable time thereafter, or upon fresh and immediate pursuit of the offender. p. 148.
From the Allen Circuit Court, W.O. Hughes, Judge.
This is an appeal wherein the defendant was found guilty, by jury trial, of the offense of resisting arrest. Defendant argues on appeal that assault and battery for which he was charged was not committed in the presence and view of the police officer and therefore the arrest was illegal. A second contention is that in attempting to arrest the defendant, the police officers failed to act in a clear and timely manner and that this fact alone made the attempted arrest illegal.
Affirmed.
Ralph R. Blume, of Fort Wayne, for appellant.
Theodore L. Sendak, Attorney General, Mark Peden, Deputy Attorney General, for appellee.
This is an appeal from the Allen Circuit Court wherein the defendant was found guilty, after a trial by jury, of the offense of Resisting Arrest and was accordingly sentenced to the Indiana State Farm for a period of one hundred eighty (180) days and fined one hundred dollars ($100.00).
The defendant first argues on this appeal that the assault and battery for which the defendant was arrested was not committed in the presence and view of the police officer who made the 1. arrest without a warrant. Fort Wayne Police Officer Steve C. Burton, however, testified that on March 1, 1969, he observed the defendant and a passenger in a vehicle: "Well, we were northbound on Catalpa; they were approaching us. He was driving rather erratic insomuch as they were weaving. As they approached closer, we could see that there was some scuffling going on in the front seat as they went by us. We turned around, turned our redlight on and stopped them up in the highway garage parking lot." Pertaining to the passenger, he stated: "Well, she was crying. Her face was bleeding. Her nose was distorted inasmuch as it was laying off to the left side of her face."
Police Officer Steven Butz testified: "At the time we saw them, uh, the defendant did not have his car under control and it looked like they were fighting back and forth." He further 2. testified that the passenger "had blood running from her nose and was holding on to her nose and yelling and screaming for us to stop him from beating on her." We find this testimony sufficient for a conclusion that an assault and battery was committed in the presence of the police officers who arrested the defendant for the assault and battery. We would not hold that the police had to view every event leading to the assault and battery since only a single transaction was involved. The offense having been committed in the presence of the officers, we need not discuss defendant's second argument that a warrant should have been obtained prior to arrest.
Defendant next contends that in attempting to arrest the defendant, the police officers failed to act in a clear and timely manner and that this fact alone made the 3, 4. attempted arrest illegal. Defendant states in his reply brief: "If they had observed the assault and battery, no investigation and questioning, as took place in this case, would have been necessary — the arrest could have been made `on the spot.'" We would not condemn the police officers for wanting to quickly investigate the situation before placing the defendant under arrest. In the case before us, there was only a brief interval between the stopping of defendant's car and his arrest. In 5 Am.Jur.2d, Arrest, § 33, p. 725, we find: "The arrest must be made at the time the offense, or some part of it, is being committed, or within a reasonable time thereafter, or upon fresh and immediate pursuit of the offender." (Emphasis added). We find that the officers were reasonably prompt in placing the defendant under arrest and that the defendant was aware of his arrest.
The arrest in the instant case having been legal, the defendant had no right to use force to avoid the arrest, and he was therefore properly charged and convicted of resisting arrest.
The judgment of the trial court is affirmed.
Givan, Prentice, DeBruler and Hunter, JJ., concur.
NOTE. — Reported in 267 N.E.2d 160.