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Journal of and Criminology

Volume 45 | Issue 3 Article 17

1954 Science Legal Abstracts and Notes

Follow this and additional works at: https://scholarlycommons.law.northwestern.edu/jclc Part of the Criminal Law Commons, Criminology Commons, and the Criminology and Criminal Justice Commons

Recommended Citation Police Science Legal Abstracts and Notes, 45 J. Crim. L. Criminology & Police Sci. 367 (1954-1955)

This Criminology is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted for inclusion in Journal of Criminal Law and Criminology by an authorized editor of Northwestern University School of Law Scholarly Commons. POLICE SCIENCE LEGAL ABSTRACTS AND NOTES

John L. Flynn*

Accuracy of Radar in Measuring Vehicle's fused to read any exceptions into this "plain Speed Not Proper Subject for Judicial Notice- and unambiguous" phrase. However, the court Defendant was convicted of driving in excess pointed out that generally peace officers may of the speed limit. Over defendant's objection, discharge firearms in the attempt to effectuate the judge judicially noted the theory and the of a felon, but may not do so to effect accuracy of the operation of a radar device in an arrest for a misdemeanor even though the measuring speed. On appeal, reversed. People officer's purpose is merely to stop flight and of City of Bufalo v. Beck, 130 N.Y.S.2d 354 the misdemeanant cannot otherwise be taken. (1954). The appellate court concluded that "'electronics is a recent development in the City Must Post Parking Regulation Signs- science embracing the mystery of electricity" Defendant on four separate dates received and not "the general knowledge of the coun- summonses for parking on a public street in the try" so as to be a proper subject for judicial City of Schenectady, New York in violation of notice. Moreover, every reasonable doubt as to a municipal ordinance regulating nighttime whether a fact is so "notorious" that a court parking. He pleaded not guilty on the ground may take judicial notice of it should be resolved that signs had not been posted restricting the in the negative. Cited in the opinion is People length of parking. The prosecution while con- v. Offerman, 204 Misc. 769, 125 N.Y.S.2d 179 ceding that no such signs were posted, alleged (Sup. Ct. 1953) in which the court determines that after the defendant received the first sum- that the accuracy of radar must be mons he had actual notice, and therefore is established by the ordinary rules of evidence guilty of at least the three subsequent viola- unless the legislature enacts a prima facie pre- tions. The prosecution also contended that sumption. But see also State v. Moffitt, 100 actual notice is the equivalent or superior to A.2d 778 (Del. 1953) where radar evidence of posted signs and that it would cost approxi- vehicle's speed was held admissible after an mately $65,000 to post signs in a city the size expert had testified in detail as to its operation, of Schenectady. The court in overruling these construction, and margin of error. contentions held that since the ordinance did not contain a provision for posting as required by state statute, it was defective and could not Police Officer May Not Discharge Firearm in be cured by knowledge of its existence. As to the Apprehending Motorlst-A police officer who cost argument the court said that any relief fired his revolver in the direction of an auto- would have to be obtained from the legislature. mobile whose driver failed to obey his signal to People v. Evans, 131 N.Y.S.2d 412 (1954). The stop was held to have violated an Ohio statute question as to whether actual notice would declaring that no person shall discharge a fire- suffice if the ordinance contained a provision arm upon a public road or highway. State v. for posting that was not complied with, was not Elder, 120 N.E.2d 508 (Ohio 1953). The defense considered. However, it seems clear that such a argued that the statutory phrase, "no person", procedure would be invalid as not in accord was not intended to include persons lawfully with the mandate of the statute. authorized to bear firearms, but the court re- * Senior Law Student, Northwestern University of to Drunken Driving School of Law. Charge Does Not Create an Estoppel in Revo- POLICE SCIENCE LEGAL ABSTRACTS AND NOTES [Vol. 45 cation Proceeding-Petitioner had pleaded officers had the right to arrest without a war- nolo contendere to the criminal charge of rant. The court points out the driving a motor vehicle while under the in- rule that an arrest without a warrant is un- fluence of intoxicating liquor. Thereafter, lawful. Exceptions were then made in the case petitioner received notice that his driver's of felonies and breach of the peace on the license had been suspended by the Com- ground that public safety demanded "on-the- missioner of Motor Vehicles because he had spot action." A statute declaratory or the "committed an offense" for which mandatory common law confers on peace officers the suspension is required. The Commissioner right to make without process when the suspended the license solely on the conviction officer has "reasonable grounds to believe" (1) entered upon the plea. The Supreme Court of a felony has been committed, (2) that a particu- North Carolina affirmed a judgment for peti- lar person is guilty, and (3) that such person tioner. The plea alone was not satisfactory may escape if not immediately arrested. Thus evidence authorizing the Commissioner to sus- the felony need not be committed in the pend the license and did not estop the peti- presence of the officer nor is it essential that it tioner from denying his guilt in the civil revoca- be committed at all as long as reasonable tion action. Winseti v. Scheidt, 239 N.C. 190, grounds exist. A private citizen may arrest only 79 S.E.2d 501 (1954). The court conceded, when a felony is actually committed in his however, that if the suspension was part of the presence and if he arrests either (1) the guilty judgment in the case in which the plea was person, or (2) the person he had reasonable tendered or made a condition to acceptance, grounds to believe guilty. Peace officers and the defendant would have no cause for com- private citizens have the power of arrest with- plaint. out a warrant in non-felony cases only for a breach or threatened breach of the peace. The court concluded that "mere drunkenness which Arrest Without a Warrant-Police officers is unaccompanied by language or conduct arrested the defendant without a warrant for reasonably calculated to create public disorder" public drunkenness. The defendant, asserting is not a breach of the peace so as to justify he was not drunk, resisted the arrest and a arrest without a warrant. scuffle ensued. The jury returned a verdict of The dissent argued that to require an officer not guilty of public drunkenness, but guilty of to determine at his peril before making arrest resisting arrest and simple assault. On appeal that a breach of the peace is actually com- the Supreme Court of North Carolina reversed. mitted would "inflict a crippling blow on law State v. Mobley, 83 S.E.2d 100 (N.C.1954). The opinion is a lucid exposition on the subject of enforcement." It should be noted that many arrest. It is axiomatic that every person has the jurisdictions and municipalities have provisions right to resist an unlawful arrest with such allowing an arrest without process upon prob- farce as reasonably appears necessary. Since it able cause that a breach of the peace has been was conceded that unnecessary force was not committed or for any crime committed in the used, the question resolved to whether the presence of the officer.