APPEAL from the Circuit Court of Rock Island County; the Hon.
ROBERT J. HORBERG, Judge, presiding.
MR. JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:
Defendants were charged in separate criminal complaints with resisting or obstructing a peace officer on March 7, 1970, in violation of Chapter 38, Section 31-1, Illinois Revised Statutes. In a joint trial before a jury both defendants were found guilty.
Both complaints were identical in wording, except for the named defendants, and each charged that the defendant:
"* * * did then and there knowingly resist or obstruct the performance by Officers Ford, Trudel, Grafton, and Nielsen of an authorized act, to-wit: refused to obey officers orders and resisted arrest, said defendant * * * then and there knew that said Officer Ford, Trudel, Grafton, and Nielsen were peace officers * * *."
Both defendants with their wives were in a combination bowling alley and bar where alcoholic beverages were served and entertainment and dancing were offered to the public.
The manager of the establishment testified he heard the defendants discussing starting a fight with another unknown patron. He cautioned them not to cause a problem. The manager talked with them on several occasions about not causing a problem. On one occasion they said that there would be no problem, they would just bust the unknown patron in the head. The manager further observed one of the defendants elbow a patron in the back and later observed that defendant talking with the patron but he could not hear the conversation.
The manager then asked the defendants to leave. When the defendants refused to leave, the manager told them he would call the police and the defendants stated that they had not done anything and they were not going to leave and the police could not make them leave.
Defendants denied striking or threatening anyone.
The police were called and they asked the defendants to leave. Defendants refused to leave unless charged with something. An officer then placed them under arrest. Defendants got their coats and an officer then took hold of one of the defendant's arms. The defendant pulled away and told the officer to keep his hands off. The defendant again was taken by the arm by an officer who started to pull him out. The defendant told the police officer he wasn't strong enough to do that and the officer then placed a forcible hold on the throat of the defendant. The other defendant, who had been walking along with another officer, then lunged at the officer who had applied the throat hold and he was then subdued by other officers.
Defendants and their witnesses testified that they gave the officers no cause to take hold of one of the defendant's arms and that after that occurred, their actions and their words were directed solely to making the officers release them.
The defendants raised the following issues: (1) they were not proven guilty beyond a reasonable doubt; (2) that the complaints failed to state a criminal offense; (3) that the court erred in the giving of certain instructions; (4) that the State's Attorney made improper argument; (5) that the court erred in denying an offer of proof.
In presenting their first point, the defendants maintain that there was a failure to prove that the police officers were performing an authorized act. They urge the proposition that a person may resist by force an unlawful arrest for the reason that an unlawful arrest is not an authorized act. They cite People v. Royer, 101 Ill. App.2d 44, 242 N.E.2d 288, a Fifth District case, which supports their position. We could avoid the issue by holding the arrest lawful, but we feel that the question of the use of force to resist an officer making an arrest to be of such paramount concern to the public that we should express our opinion.
People v. Carroll, 272 N.E.2d 822, a First District, Third Division case, held that a person may not use force to resist an arrest by one he knows to be a ...