People v. Powell

[179]

VAN DYKE, J.

The appellant, Ernest Powell, and his brother Harold were jointly accused by information in two counts charging violation of Penal Code, section 148. That section makes it a crime for anyone to wilfully resist, delay or obstruct any public officer in the discharge or attempt to discharge any duty of his office. By count I the two brothers were charged as having committed the crime with respect to one George Wagner, and by count II the same charge was made with respect to one Rudy Schinkel, both of whom were police officers. The cause was tried to a jury which returned verdicts of not guilty as to Harold Powell on both counts. As to Ernest Powell the jury found him guilty as to count II, but failed to agree as to count I. Ernest Powell moved for a new trial which was denied by the court and after judgment was pronounced he took this appeal from the order denying his motion for a new trial and from the judgment.

The testimony produced at the trial was sharply in conflict on many matters, but under the well-known rule we are to take the facts as impliedly found by the jury, disregarding conflicting testimony which favored the appellant. So considered, the record shows the following: In the early morning hours of Sunday, April 17, 1949, the two police officers arrived at the Petaluma Café in Petaluma in answer to a police radio call regarding a disturbance at the café. Before they had arrived an altercation had taken place between two men in the café, but this altercation had died down by the time they reached the scene. There was a goodly number of people in the café and as the officers entered two women were then engaged in a second altercation. One of the women was making threatening gestures toward the other and Officer Wagner moved in to separate the contestants, at which time the other woman struck a blow, felling her antagonist. Wagner picked up this woman and, after stating she was under arrest, took her to the police car and placed her in it. Officer Schinkel took hold of another woman who seemed to be participating in the affray, and, following Officer Wagner, placed her in the car with Wagner’s prisoner. He then observed that Officer Wagner had been struck by a bystander, later ascertained to be appellant, and he pulled appellant away from Wagner. He then started to return to the café, and as he turned away appellant struck him, knocking him partially to the ground. Appellant then grabbed the officer’s tie, pulled it around to his back, and the two men scuffled around for some time, until two other officers arrived and the alterca