People v. Manriquez

BARNARD, P. J. The defendant was charged, under section 148 of the Penal Code, with the crime of resisting a [615]public officer while in the discharge of his duties. He was found guilty by a jury and has appealed from the judgment and from an order denying a motion for a new trial.

The incident out of which this charge arose occurred in Tustin on the evening of October 28, 1933, at the home of the appellant’s daughter, a widow, with whom the appellant lived. Several officers came to the house armed with a purported search warrant and demanded admittance. They were admitted and proceeded to search the house, finding a small quantity of liquor and also observing certain things which caused them to believe that other liquor had recently been consumed on the premises. After the search had been completed some of the officers went into the back yard where they observed the .appellant approaching the house. They arrested him on a purported charge which has no connection with what occurred in the house and, in spite of his protest, took him into the house. There is evidence that after being brought into the house the appellant said he would get a gun and shoot the officers. It was obviously impossible for him to do any such thing as the officers gave him no opportunity. The main thing relied upon by the prosecution is that the appellant took hold of a flatiron. The testimony is that he did nothing with it as one of the officers immediately took it away from him. Shortly after he was brought into the house the officers arrested his daughter and one of the officers testified that when they attempted to take the two from the house each of them “hung on to the doors and everything they could get hold of, and we had to take them out by main force”.

The appellant’s contention that the evidence is not sufficient to support the verdict and judgment must be sustained. It developed at the trial that the search warrant under which the officers were acting was illegal and the court properly held it void and of no effect. Not only did the officers have no right to make the search, but the search was completed before the appellant entered the house and, so far as the record shows, before he knew anything about the entire matter, and there is absolutely no evidence to even indicate that the appellant made or offered any resistance to the officers, in so far as their executing a search warrant is concerned. Some claim is made by the respondent that since some liquor was found in the house while the [616]