State v. Keziah , 1974 N.C. App. LEXIS 1983 ( 1974 )

HEDRICK, Judge.

Assignments of error 10, 12 and 18 relate to the court’s instructions to the jury and present the question of whether the court erred in not instructing the jury that before the jury could find the defendant guilty of the offense charged it must find that the officer saw the defendant operating a motor vehicle on the public highway and that the officer must have had reasonable grounds to believe the defendant had committed a misdemeanor in his presence. The defendant relies on State v. Jefferies, 17 N.C. App. 195, 193 S.E. 2d 388 (1972), in which this court held that where the defendant was charged with resisting an officer who was attempting to arrest him without a warrant for driving a motor vehicle while under the influence of' an intoxicating beverage it was error for the court not to instruct the jury as an element of the offense charged that the jury must find that the officer had reasonable grounds to believe that the defendant had committed a misdemeanor in his presence. In Jefferies, this court reasoned that absent such an instruction the jury could have found the defendant guilty of resisting an unlawful arrest.

We think the present case is distinguishable in that here the duty the officer was allegedly performing was that of checking the defendant’s driver’s license pursuant to G.S. 20-29 and G.S. 20-183 (a). While there may be little or no distinction between resisting an officer by assaulting him and assaulting an officer while he is performing a duty of his office under G.S. 14-33 (b) (4), there is considerable difference between being arrested unlawfully by an officer and having an officer lawfully check a driver’s license pursuant to G.S. 20-29 and G.S. 20-183(a).

The record here is replete with evidence that Patrolman Barbee was performing a duty of his office by attempting to check the defendant’s driver’s license. The trial court declared and explained the law relating to the officer’s authority and duty to check the defendant’s driver’s license and clearly instructed the jury that before they could return a verdict of guilty of the offense charged in the warrant, they must find that the officer was performing a duty of his office when the alleged assault occurred. These assignments of error are not sustained.

The only other assignments of error brought forward and argued in defendant’s brief are: (1) That the court erred in denying his motion to consolidate the two misdemeanor charges for trial; (2) That the judgment is ambiguous and erroneous; and (3) That “a two-year active sentence in this case manifests inherent unfairness and injustice and offends the public sense of fair play.” Suffice it to say, we have carefully examined each of these assignments of error and find them to be without merit.

We hold the defendant had a fair trial free from prejudicial error.

No error.

Chief Judge Brock and Judge Martin concur.