Shuttlesworth was found guilty under § 856 of the City Code of Birmingham for interfering with the chief of police in the latter's taking certain Freedom Riders into "protective custody."
Taking into protective custody we consider to mean the receiving of some one who places himself voluntarily under the protection of a peace officer.
Outside the bus station was a crowd of some 250 to 300 shouting for the police to give way, to let them take care of the Freedom Riders en route to Montgomery who, on the walkout of bus drivers, were stranded in Birmingham. The crowd was trying to press forward toward the bus loading platform. Streets were blocked—Nineteenth entirely; Seventh Avenue between Eighteenth and Nineteenth.
Shuttlesworth has argued to us that the chief of police was not in the discharge of any legal duty. Harris v. City of Tuscaloosa, 21 Ala.App. 392, 108 So. 768, does not apply here; nor are People v. Papp, 19 Misc.2d 331, 185 N.Y.S.2d 907, and White v. Edmunds , Peake 123, in point.
This argument can avail the appellant nothing, because his conduct was also that prohibited by § 825 of the City Code which provides for the same degree of punishment as § 856, § 825 making it an offense against the City for any person to commit an assault.
The definition of assault is well known from the common law. In Kennedy v. State, 39 Ala.App. 676, 107 So.2d 913, we had occasion to consider some of the elements of resisting arrest.
There may be a species of resisting an officer without at the same time committing
Inasmuch as Shuttlesworth blocked the chief's path using words from which the intent to do so "in rudeness or in anger" could probably and rationally be inferred, there was no error in his conviction, since he could have been clearly convicted of a simple assault. The judgment below is due to be
PRICE, P. J., and JOHNSON, J., concur in result.