Guli Tsauna v. R., Crim. App. 150-A-67, 7/10/67, Platt J

Guli Tsauna v. R., Crim. App. 150-A-67, 7/10/67, Platt J

Accused was convicted of one count of assaulting a police officer [P.C. s. 243(b)], a second count of resisting lawful arrest {P. C. s. 243(a)], and a third count of using abusive language [P.C. s. 89(1)(a)]. The prosecution put forward facts showing that when a police officer attempted to arrest accused in connexion with a previous offence, accused attacked him with sticks, addressed abusive language to him and ran away. The particulars of the second count alleged that accused “did resist lawful arrest ….. by running away.” The particular of the third count merely alleged that he had used abusive language. At the trial accused pleaded guilty to the charge, but he attempted on appeal to dispute the facts charged.

            Held: (1) The convictions were based on accused ’s admission in his plea, and he cannot now challenge the facts admitted. (2) An element of the offence created by Penal Code section 243 (a) is an assault with intent to commit a felony or to resist or prevent one’s lawful apprehension. The charge was defective in that it failed to allege such an assault with such intent. (3) The third count was defective in that it failed to allege that the abusive language was used “in such a manner as is likely to cause a breach of the peace ….. “- an essential element in the crime.