concurring and dissenting.
The Court's decision today, wherein it finds authority in I.C. 84-4-9-2.1 for the sheriff to make a forcible entry into a private home to serve a civil body attachment, finds no support in past cases, is unjustified in principle, and is directed at ends not appropriately within our domain. I therefore dissent to that part of the majority opinion affirming appellant's convictions for resisting law enforcement.
The gravamen of these alleged offenses is shown in the following evidence. Appellant was living by himself at 717 West Roach Street. More than once he had been summoned to Marion County Municipal Court in response to complaints filed against him by the City of Indianapolis for health and environmental code violations. One time he had been told not to live in the house until he got the utilities turned on. On January 8, 1985, Judge David Jester issued a body attachment for appellant to answer for his failure to appear in response to a summons.
On February 22, 1985, two employees of the Marion County Civil Sheriff's office arrived at appellant's home to execute the body attachment. They knocked on the door and identified themselves as police officers but received no response. A screen door at the front of the house was locked from the inside. They heard noises inside the house and saw a light through a window. The civil deputies sought advice from headquarters as to how to proceed and were told to break into the house. After doing so, they searched the upper levels without success, and after identifying themselves as police officers several times, decided to search the basement of the house. Since none of them had a flashlight, they left the house and called by radio for assistance from the Indianapolis Police Department. IPD Officer Edward Baker responded but did not have a flash*936light. Instead, he rolled up a newspaper, lit it as a makeshift torch, and led the way down the basement stairway. Baker was in uniform.
Gun shots were fired in the direction of the officers and they retreated and called in a "Code One"-officer in need of assistance. Numerous police officers from various agencies responded to the call for assistance. Officer Edward Baker and Marion County Sheriff's Deputies Skiff and Miller entered appellant's house and went again into the basement. Upon being discovered hiding behind the water heater, appellant fired at the officers, shooting Deputy Skiff in the arm. Appellant was also shot four times during the exchange of bullets.
It is appellant's claim that his convictions for resisting law enforcement must fail because there was insufficient evidence to prove that the officers were lawfully engaged in their duties as law enforcement officers, as alleged in the informations.
IC. 35-44-3-3(a)(l), upon which the charges were based, provides:
(a) A person who knowingly or intentionally:
(1) forcibly resists, obstructs, or interferes with a law enforcement officer or a person assisting the officer while the officer is lawfully engaged in the execution of his duties as an officer;
* * l % a *
commits resisting law enforcement, a Class A misdemeanor.
An element of the crime of resisting law enforcement is that the officer be "lawfully engaged in ... his duties" at the time of the conduct of the defendant constituting the crime. Id.
An arrest is defined by statute as "the taking of a person into custody, that he may be held to answer for a crime." I.C. 35-838-1-5. The authority of enforcement officers to make a forcible entry to arrest on warrant is granted by I.C. 85-83-2-3, and is limited by the requirement of a precedent announcement of authority and purpose, and damages are provided for injurious abuse of that authority. An arrest warrant for failure to appear may not be issued. 1C. 35-83-4-1. The State does not contend that the officers were exercising arrest powers when forcibly entering appellant's home. It contends instead that such entry was authorized by I.C. 34-4-9-2.1 which provides in pertinent part:
(b) For the purpose of procuring personal jurisdiction over a person who has allegedly violated a court order or who is otherwise in contempt of court, the court may issue a writ of attachment of the body of the person.
* * 3 # # #
(c) A sheriff ... who receives an order under this section shall immediately:
(1) serve the writ; and
(2) take the person into custody.
The State finds a legislative declaration in these words of command to the sheriff that the interest in the orderly administration of civil justice served by the body attachment, like the interest in enforcing the criminal law served by the arrest warrant, out weighs the peace and security of the home and necessitates the authority to forcibly invade it. I find no such implicit declaration. In this respect, the holding in Casselman v. State (1985), Ind.App., 472 N.E.2d 1310 is absolutely correct. The statute does not authorize the forcible entry in this case. There is no legal basis for the foreible entry within the circumstances of this case. The entry was therefore not lawful.
A statute must be taken as written. The offense embodied in 1.0. 35-44-8-8(a)(1) requires proof that the forcible resistance be met by an officer while he is "lawfully engaged in the execution of his duties." Clearly, the legislature meant more by the language than simply while "engaged in the execution of his duties." "Lawfully" is a modifier. It calls for a determination of whether the conduct of an officer, at the time resistance is met, was within legal limitations. It calls for recognition of the fact that the police power granted to each officer is restrained by law. To construe the language of the statute otherwise is to alter its proscription radically. Whether or not the prosecution has proved this element is a question of fact to be decided by a *937properly instructed trier of fact. The evi-> dence tending to prove this element is insufficient in the case. The convictions for violating 1.0. 35-44-3-8 as charged should be reversed.
DICKSON, J., concurs.