dissenting. The majority have concluded Breakfield v. State, 263 Ark. 398, 566 S.W. 2d 729 (1978) mandates a reversal of the judgment convicting appellant of Ark. Stat. Ann. § 41-2804. I respectfully disagree. In Breakfield the officer was attempting to arrest the accused after the officer requested the accused to leave his office and accused declined to leave. Thereafter, accused left and the officer pursued him outside and the accused threatened to kill the officer. After a scuffle the officer subdued and arrested the accused.
The only evidence that the accused interfered with the officer in the performance of his duties was the statement of the officer that, “I was just before attempting to interview the complainants. They were inside the office or were coming in.” The court on appeal held this was not substantial evidence to support the conviction for interfering with a police officer engaged in performing his official duties.
In the present case the officer had information appellant had been involved in some trouble and started looking for him. Earlier in the day he had driven appellant home and appellant had the smell of alcohol. He saw appellant coming across the tracks with a 30-30 rifle in his hand. The officer approached appellant and said, “Randy, let me have the gun.” Appellant put the gun to the officer’s chest and said, ‘ ‘Back up . . . back up, I will kill you. ’ ’ The accused then ran and was later arrested with the help of other officers.
Under the circumstances here, the officer was engaged in performing his official duties in conserving the peace. Given the circumstances that appellant had been driven home smelling of alcohol, that the officer had received a report that he was involved in some kind of disturbance, and finding the appellant with the 30-30 rifle, the officer was acting properly in the discharge of his duties when he asked appellant to surrender the 30-30 rifle. The officer was justified in concluding appellant was involved in disorderly conduct under Ark. Stat. Ann. § 41-2908(l)(g) when he requested appellant to surrender his gun. This section provides the purposeful creation of a hazardous condition to cause alarm is disorderly conduct. The response to the officer’s reasonable request in the line of duty was a threat to kill the officer.
Appellant did not deny officer’s testimony.
I would affirm. I am authorized to say Judge Hays joins in this dissent.