James P. Sandman was charged by information with the crime of resisting a public officer in the discharge of his official duties. After the jury was impaneled and sworn and the district attorney made his opening statement, counsel for defendant interposed a motion to dismiss. The motion was granted upon the ground that the information, * supplemented by the opening statement and an offer of proof by the state, failed to make out a public offense.
The state has appealed as permitted by statute 1 to test the propriety of such ruling.
The bill of particulars and the offer of proof show these facts, which for the purpose of this review we must assume to be true: On July 18, 1953, defendant James P. Sandman and his party were fishing in a creek in Wasatch County called Stinking Springs. Game Warden Leo A. Cox came upon a lady in the party and noticed on her clothing indications of hamburger, the use of which as fishing bait is prohibited by law in this state. In conversation with her he learned that her husband was fishing a bit down stream. The warden then went down stream and, approaching the defendant Sandman, observed him angling with bait which he said appeared to be hamburger. He told Sandman that he was the game warden and requested to see the bait, whereupon Sandman turned away and jerked his pole rapidly back and forth in a swishing movement which Warden Cox in*71terpreted as an attempt to dislodge the bait from the hook. Cox grabbed hold of the fishing pole to prevent this; a scuffle ensued wherein both parties fell into the creek; Mr. Cox fell into the stream on his back, lodging between two rocks; and “as he attempted to raise his head from the stream, he was struck violently about the head and face by the defendant, Sandman * * *. [W]hen Mr. Cox was again able to regain his feet and while he was checking the flow of blood from the wound * * * the defendant Sandman took the bait can, which was attached to his * * * belt and tipped the contents into the water and rinsed the can out and also * * * broke the leader from the line and threw the hook and leader into the water.”
It was stated by the district attorney that the state would not try to prove that the grabbing of the pole was intended in the performance of an arrest, but that it was done to prevent the destruction of evidence which the warden was trying to obtain.
We note here that the questions whether, under the circumstances, Mr. Cox could have made an initial arrest, whether with or without making an arrest he would have been justified in searching defendant’s person for illegal bait, and whether greater violence was used than the circumstances warranted and, if so, the effect thereof, are matters which are not. dealt with herein.
The question we confront is whether the trial court erred in granting the motion to dismiss on the ground that the facts above set forth do not make out a prima facie case of violation of Section 76-28-54, U.C. A.1953, which provides:
“Every person who wilfully resists, delays or obstructs any public officer in discharging, or attempting to discharge, any duty of his office * * * is punishable by fine not exceeding $1,-000 or by imprisonment in the county jail not exceeding one year, or by both.”
thus constituting an indictable misdemean- or.
In order to make out an offense under this statute it must appear that (A) a duly constituted public officer (B) engaged in the performance of an official duty (C) was obstructed or resisted by defendant.
(A) There can be no question that game wardens are by statute constituted peace officers who have the “same power, and shall follow the same procedure in making arrests, and in the handling of prisoners and the general enforcement of this Code, as other peace officers.” 2
(B) Respecting the contention that Warden Cox was not performing an official duty, the Fish & Game laws make it unlawful to “take * * * or attempt to take”3 fish by using hamburger as bait.4 *72The only practical means for an officer to discover whether the law is being violated in this respect is to make an inspection of substances being used. Acting under the statutory mandate to “enforce the provisions of this Code” 5 Officer Cox was making observations as to the bait fishermen in the locality were using. His encounter with the lady upstream had raised a suspicion that her party might be using hamburger, and upon approaching Mr. Sandman his observations led him to believe that such was the case. Defendant’s refusal to permit an inspection and the attempt to dispose of the bait before Officer Cox could inspect it further bolstered the warden’s belief that the defendant was violating the law. Under these facts the warden would have been derelict in his duty if he had not sought to inspect defendant’s bait.
(C) The further question remaining is whether the defendant’s conduct in refusing to permit inspection of his bait and attempting to dispose of it amounted to an obstruction or resistance of an officer in the performance of his duty. Such interference or resistance need not be in the form of physical force or violence, but it is sufficient that there be some direct action amounting to affirmative interference.6 Thus in People v. Rivera 7 it was held that the defendant was properly convicted of obstructing an officer in the performance of his duty for destroying milk before it could be inspected by the Public Milk Inspector who was about to do so. Similarly, in Johnson v. State ex rel. Maxcy8 the injection of a chemical into citrus fruit juice about to be inspected was held to be obstruction of an inspector in the performance of his duties.
In the case at bar Mr. Cox had informed the defendant that he was a game warden. His attempt to observe what the defendant was using as bait and his request to see it were not unreasonable and were consistent with his duty. Under the rationale of the above cases, defendant’s conduct in refusing the request and disposing of the bait which the warden was attempting to inspect amounted to resisting and obstructing the officer in the performance of his duty in violation of the statute. The court should have allowed the trial to proceed.
The judgment is reversed and remanded, but in view of the double jeopardy protection afforded defendant, there can be no further proceedings in this case.9
McDonough, c. j., and wade, j., concur.. Section 77-39-4, 5, U.C.A.1953.
. Section 23-10-1, U.C.A.1953 (Cum. Supp.)
. Section 23-3-7, U.C.A.1953 (Cum.Supp.)
. Angling Proclamation for 1953, issued pursuant to Section 23—2—14, U.C.A.1953 (Cum.Supp.), and Section 23-3-7, U.C.A, 1953 (Cum.Supp.)
. Section 23-10-1, U.C.A.1953 (Cum. Supp.)
. 67 C.J.S., Obstructing Justice, § 5(b).
. 25 Porto Rico Reports 700.
. 99 Ma. 1311, 128 So. 853.
. State v. Thatcher, 108 Utah 63, 157 P.2d 258; as to when jeopardy attaches, see State v. Whitman, 93 Utah 557, 74 P.2d 696.