Here there has been an arrest of a violently disturbed man on the charge of intoxication. The individual was handcuffed and placed into the police wagon where the evidence was that he continued in his wild behavior. The evidence further indicates that a large crowd of people congregated in the immediate area upon the sidewalk, and a large congestion of motor vehicles clogged a main downtown street. In an attempt to restore order, a sergeant gave instructions to one of the police officers to attempt to clear the area and restore order. It was at this time that the arresting officer issued a request to those on the sidewalk, including the defendant, to move on and clear the area. When the defendant refused to depart after several requests, he was placed under arrest for the violation of Columbus Code 2355.02, which reads in part:
"* * * No person shall in any way hinder, obstruct, resist or otherwise interfere with any duly authorized officer or member in the discharge of his official duties * * *." *Page 106
In my opinion, the sergeant, who issued the original order, and his subordinate officer, acted in a proper manner. In other words, there is no question that the arresting officer was duly authorized and was in the discharge of his official duties.
It would also appear there was ample evidence to support a finding that the defendant did hinder and obstruct the officer in the discharge of his duty, of attempting to restore order, during and following the incident for which the officers had been summoned. The fact that the defendant was an attorney would have no bearing on the case. Were these the only facts and circumstances, I would have no hesitancy in affirming the judgment of the trial court.
However, there is an additional factor here which was not covered by the instructions of the trial court to the jury. The defendant testified:
"* * * I saw a man being beaten, and it was by two officers, not by one. Now, I can't say for sure that it was Officer Kirby or who it was. But I know there were two officers in there, and they were hitting this man.
"Now, before I had seen them go over to hit him, I had seen him, of course. He was handcuffed with his hands behind his back. He was just sitting there rocking. He was crying, he was mumbling incoherently. Of course, I was farther away and he was inside the wagon, so I especially couldn't hear what he said. And he was bleeding at the mouth."
Although the fact that the defendant was an attorney would not otherwise make any difference in this case, it would have had a bearing had the jury believed the testimony above set forth. As an officer of the court, the defendant had a duty to have witnessed any violations of the defendant's civil rights. Although it may be argued that the jury, by its finding, did not believe the defendant and did not find these facts to be true, the jury was not instructed with respect to these matters, which were clearly in evidence. There was a duty on the part of the trial court to so charge in the interest of substantial justice and, for this reason, I would reverse and remand this matter for retrial. *Page 107