presence is an essential element of the crime for which he stands convicted. In support of this position, Mr. Coleman relies on Martin v. State, 31 Ala.App. 334, 17 So.2d 427 (App.Div.1944) and People v. Newton, 72 Misc.2d 646, 340 N.Y.S.2d 77 (Sup.Ct.1973).
In Martin, the defendant was drinking in his home when police officers seized him, took him onto a public highway, and then arrested him there under an Alabama statute punishing "any person who intoxicated or drunk . . . appears in any public place . . . and manifests a drunken condition." Martin's conviction was reversed by the Alabama Court of Appeals because his presence on the public highway was involuntary: "under the plain terms of the statute, a voluntary appearance is supposed." In Newton, the defendant, concealing a loaded revolver on his person, boarded an airplane bound from the Bahamas to Luxembourg. Although no stops in the United States were scheduled, the plane put down in New York, and defendant was arrested on board for possession of a loaded firearm in violation of New York law. The New York Court granted Habeas corpus, finding that his involuntary presence precluded criminal liability.
These decisions properly decided as they very likely were are not, however, compelling authority for the conclusion that Section 113 of Title 18 requires voluntary presence on federal property. Here, unlike Martin and Newton, involuntary presence was not the final ingredient without which criminal liability would not have attached. Rather, appellant was convicted for his voluntary conduct once he was within the territorial jurisdiction of the United States that voluntary conduct being his assault on Officer Ebner. The assault itself constitutes the necessary voluntary act: the requirement is not that every aspect of wrongful behavior be volitional, but that liability be "based on conduct which includes a voluntary act." Model Penal Code § 3.01(1).
Appellant argues that voluntary presence is required because Section 113 "was designed . . . to deter those who would come upon Federal property to commit an assault." But there is nothing to suggest that Congress' purpose was so limited. Congress, it appears, sought to insure that all assaults committed on federal property could be prosecuted in a federal forum, thereby guaranteeing uniform and vigorous protection of federal interests.
Indeed, as the Government notes, appellant's restrictive interpretation would render Section 113 inapplicable to assaults committed by persons imprisoned in federal institutions. The cases applying Section 113 in such circumstances are legion,
and it is hard to conceive that Congress intended otherwise.
Less sweepingly, Mr. Coleman argues that a conviction cannot be sustained under Section 113 where a defendant's "presence (is) the result of compulsion attendant to an unlawful arrest." This argument, although couched in the language of the voluntary act requirement, seems more nearly an assertion that appellant was entitled to use force to resist an illegal arrest.
Even assuming Arguendo that the arrest in this case was illegal,
the argument that forceful resistance was permissible must be rejected. This is not a case in which an arrest was effected in bad faith either to provoke a citizen into criminal conduct or to deter him from exercising his constitutional rights. Compare the cases discussed in Chevigny, The Right to Resist an Unlawful Arrest, 78 Yale L.J. 1128, 1138-50 (1969). Here, appellant Coleman was detained because his conduct posed an appreciable danger to himself and to others. On these facts, I am in agreement with Judge Powers, whose opinion canvasses the developing case law, that "the defendant had no right to use force to resist the arrest."
Accordingly, appellant's conviction is affirmed.