State v. Mobley , 240 N.C. 476 ( 1954 )

JOHNSON, J.

The offense of resisting arrest, both at common law and under the statute, G.S. 14-223, presupposes a lawful arrest. It is axiomatic that every person has the right to resist an unlawful arrest. In such case the person attempting the arrest stands in the position of a wrongdoer and may be resisted by the use of force, as in self-defense. S. v. Beal, 170 N.C. 764, 87 S.E. 416; S. v. Allen, 166 N.C. 265, 80 S.E. 1075; S. v. Belk, 76 N.C. 10; S. v. Bryant, 65 N.C. 327; S. v. Kirby, 24 N.C. 201; S. v. Curtis, 2 N.C. 471; 4 Am. Jur., Arrest, Sec. 92; 6 C.J.S., Arrest, See. 13, p. 613. See also 28 Va. Law Review, p. 330.

True, the right of a person to use force in resisting an illegal arrest is not unlimited. He may use only such force as reasonably appears to be necessary to prevent the unlawful restraint of his liberty. S. v. Allen, supra. See also S. v. Glenn, 198 N.C. 79, 150 S.E. 663. And where excessive force is exerted, the person seeking to avoid arrest may be convicted of assault, or even of homicide if death ensues (4 Am. Jur., Arrest, Sec. 92), but in no event may a conviction of the offense of resisting arrest be predicated upon resistance of an unlawful arrest. S. v. Allen, supra; S. v. Belk, supra; Prosser on Torts, p. 165.

This brings us to the pivotal question presented by this appeal: Was the arrest of the defendant lawful or unlawful? Necessarily, the answer is dependent on whether the officers had the right to arrest the defendant without a warrant.

It has always been the general rule of the common law that ordinarily an arrest should not be made without warrant and that, subject to well-defined exceptions, an arrest without warrant is deemed unlawful. 4 Bl. Com. 289 et seq.; 6 C.J.S., Arrest, Sec. 5, p. 579; 5 O.J., p. 395. This foundation principle of the common law, designed and intended to protect the people against the abuses of arbitrary arrests, is of ancient origin. It derives from assurances of Magna Carta and harmonizes with the spirit of our constitutional precepts that the people should be secure in their persons. Nevertheless, to this general rule that no man should be taken into custody of the law without the sanction of a warrant or other judicial authority, the processes of the early English common law, in deference to the requirements of public security, worked out a number of exceptions. These exceptions related in the main to cases involving felonies and suspected felonies and to breaches of the peace. 4 Bl. Com. 292 et seq.; Arehbold’s Criminal P. and P., 29th Edition, p. 1013 et seq.; 4 Am. Jur., Arrest, Sections 22 to 38. Arrest without warrant in felony cases was justified at common law on the theory that dangerous criminals and persons charged with heinous offenses should be incarcerated with all possible haste in the interest of public safety. Whereas, the necessity for prompt on-the-spot action in suppressing and preventing disturbances of the public peace was the factor which justified arrest without warrant in misdemeanor cases involving breaches of the peace. In such cases, with the moving consideration being the immediate preservation of the public peace, rather than the due apprehension of the offender, the theory prevailed that unless the public peace was menaced, the delay incident to obtaining a warrant from a judicial officer would not prejudice the interests of the State in punishing the offender. See Carroll v. United States, 267 U.S. 132, 69 L. Ed. 543, 45 S. Ct. 280, 39 A.L.R. 790. See also 75 University of Pennsylvania Law Review, 485.

It is not necessary for us to deal at length with the refinements of the common law exceptions to the general rule against arrest without warrant. This is so for the reason that in this State the common law exceptions have been enacted or supplanted by statute, so that the power of arrest without warrant is now defined and limited entirely by legislative enactments. And the rule is that where the right and power of arrest without warrant is regulated by statute, an arrest without warrant except as authorized by statute is illegal. Sims v. Smith, 115 Conn. 279, 161 A. 239; S. v. Bradshaw, 53 Mont. 96, 161 P. 710; S. v. De Hart (N. J. C. Pl.), 129 A. 427; Mazzolini v. Gifford, 90 Vt. 352, 98 A. 904; 6 C.J.S., Arrest, Sec. 5, pp. 579 and 580. See also Stearns v. Titus, 193 N.Y. 272, 85 N.E. 1077; Vinson v. Commonwealth, 219 Ky. 482, 293 S.W. 984; Fitzpatrick v. Commonwealth, 210 Ky. 385, 275 S.W. 819.

Our General Assembly of 1868-69 enacted a comprehensive, all-embracing set of rules prescribing and limiting the power of arrest without warrant. This Act, which may well be called our Code of Arrest Without Warrant, is Chapter 178, Subehapter 1, Session Laws of 1868-69. Its caption reads as follows: “When and by whom arrests may be made without process.” This statute clarifies, in some particulars modifies, and in other ways extends the pre-existing rules of the common law governing arrest without warrant, but in the main the Act is declaratory of the common law. The statute has been preserved and brought forward through successive codifications of our statute law. It is now codified in pertinent parts as G.S. 15-39, 15-40, .15-41, 15-43, 15-44, 15-45, and 15-46.

The basic rules governing arrest without warrant as precribed by the Act of 1869 may be distinguished as they relate to (1) felonies and to (2) misdemeanors. We discuss them in that order:

1. Felonies. — G.S. 15-41 (Subchapter 1, Section 3 of the Act of 1869) confers on peace officers the right to make arrests without process when the officer has “reasonable ground to believe” (1) a felony has been committed or a “dangerous wound” inflicted, (2) that a particular person is guilty, and (3) that such person may escape if not immediately arrested. Under this statute the significant features are that the felony or dangerous wound need not necessarily be committed or inflicted in the presence of the officer. Indeed, in order to justify the arrest it is not essential that any such serious offense be shown to have been actually committed. It is only necessary that the officer have reasonable ground to believe such offense has been committed. Moreover, in the instances enumerated an arresting officer is protected by the statute against the consequences of an erroneous arrest based on mistaken identity of the offender; all that is required is that the officer have reasonable ground to believe he is after tbe right person and that the suspect will escape unless immediately-arrested.

G.S. 15-40 (Subchapter 1, Section 6 of the Act of 1869) authorizes private persons to make arrests in certain felony cases. By the terms of this statute, when a felony actually has been committed in the presence of a private person, he may forthwith arrest without warrant (1) the person he knows to be guilty, or (2) the person he has reasonable ground to believe to be guilty. It is noted that this statute confers on a private citizen the right of arrest only when a felony is actually committed in his presence. Thus, if it turns out that the supposed offense is not a felony, then the arresting private citizen may not under the terms of the statute justify taking the suspect into custody. However, if a felony actually has been committed-in his presence, then the private person making the arrest has the protective benefits of the statute if he arrests either (1) the guilty person or (2) the person he has reasonable ground to believe is guilty of the offense, although perchance the person arrested may be innocent.

2. Misdemeanors. — G.S. 15-39 (Subchapter 1, Section 1 of the Act of 1869) deals with breaches of the peace. This statute confers on peace officers and private persons, on equal terms, the power of arrest without warrant in certain misdemeanor cases. The statute follows in the main the pre-existing principles of the common law. The language of the statute is as follows: “Every person present at any riot, rout, affray or other breach of the peace, shall endeavor to suppress and prevent the same, and, if necessary for that purpose, shall arrest the offenders.” It is significant to note that the statute — as did the rules of the common law it supplanted' — confers no power of arrest without warrant in misdemeanor cases, as such. The power of arrest without warrant is referable entirely to the question of breach of the peace. The test is not whether the offense is a misdemeanor, but, rather, whether an arrest is necessary in order to “suppress and prevent” a breach of the peace. The fact that an offense arrestable under this statute as a breach of the peace is also a misdemeanor, is purely coincidental. See Alexander v. Lindsey, 230 N.C. 663, 55 S.E. 2d 470.

This brings us to an analysis of the intent and meaning of G.S. 15-39. Its language is plain and clear. An arrest without warrant may be made under the provisions of this statute by anyone when it is necessary to “suppress and prevent” a breach of the peace. This means that either a peace officer or a private person may arrest anyone who in his presence is (1) actually committing or (2) threatening to commit a breach of the peace. To justify an arrest on the ground of necessity in order to “suppress” a breach of the peace, the conduct of the person arrested must amount to an actual breach of the peace in the presence of the person making the arrest. Whereas, to justify an. arrest in order to “prevent” a breach of the peace, ordinarily there must be at least a threat of a breach of the peace, together with some overt act in attempted execution of the threat. However, we think a breach of the peace is threatened within the meaning of the statute if the offending person’s conduct under the surrounding facts and circumstances is such as reasonably justifies a belief that the perpetration of an offense amounting to a breach of the peace is imminent. Quinn v. Heisel, 40 Mich. 576. See also Martin v. State, 89 Ala. 115, 8 So. 23, 18 Am. St. Rep. 91; Com. v. Gorman, 288 Mass. 294, 192 N.E. 618, 96 A.L.R. 977; 4 Am. Jur., Arrest, Sec. 26.

In testing the legality of an arrest without warrant by the provisions of G.S. 15-39, it must be kept in mind that not every misdemeanor is a breach of the peace. As to what constitutes a breach of the peace within the meaning of the rules which authorize an arrest without warrant in such cases, the better reasoned authorities emphasize the essentiality of showing as an element of the offense a disturbance of public order and tranquillity by act or conduct not merely amounting to unlawfulness but tending also to create public tumult and incite others to break the peace. We find this succinct statement in 4 Am. Jur., Arrest, Sec. 30:

“Generally speaking, any violation of public order or disturbance of the public tranquillity by any act or conduct tending to provoke or incite others to violence constitutes a breach of the peace, within the meaning of the rules which authorize an arrest without a warrant for a breach of the peace. . . .

“A breach of the peace may be occasioned by an affray or assault, by the use of profane and abusive language by one person toward another on a public street and in the presence of others, or by a person needlessly shouting and making a loud noise.”

The Restatement of Torts, Section 116, puts it this way: “A breach of the peace is a public offense done by violence or one causing or likely to cause an immediate disturbance of public order.” See also Prosser on Torts, p. 160; Ballentine’s Law Dictionary, p. 171; 22 Michigan Law Review, 541, 573.

In applying the statute at hand, G.S. 15-39, it is manifest that mere drunkenness unaccompanied by language or conduct which creates, or is reasonably calculated to create, public excitement and disorder amounting to a breach of the peace, will not justify arrest without warrant under the statute. See Yarbrough v. Commonwealth, 219 Ky. 319, 292 S.W. 806; S. v. Munger, 43 Wyo. 404, 4 P. 2d 1094; King v. State, 132 Tex. Cr. R. 200, 103 S.W. 2d 754; Grow v. State, 152 Tex. Or. R. 586, 216 S.W. 2d 201; 8 Am. Jur., Breach of Peace, Sections 6 to 10; 11 C.J.S., Breach of the Peace, Sections 1 to 6.

It is to be kept in mind that G.S. 15-39 contains no provisions, comparable to those in G.S. .15-41 dealing with felony cases, which justify. arrest when the facts furnish reasonable ground to believe an offense covered by the statute is being committed. Therefore, a person making an arrest under the authority of G.S. 15-39 must determine, at his peril, preliminary to proceeding without warrant, whether an offense arrestable under the statute is being committed. S. v. Hunter, 106 N.C. 796, 11 S.E. 366; S. v. McAfee, 107 N.C. 812, 12 S.E. 435; S. v. Rollins, 113 N.C. 722, 18 S.E. 394. See also McKenna v. Whipple, 97 Conn. 695, 118 A. 40; People v. Ward, 226 Mich. 45, 196 N.W. 971; Fitzpatrick v. Commonwealth, supra (210 Ky. 385, 275 S.W. 819, headnote 27); Edgin v. Talley, 169 Ark. 662, 276 S.W. 591, 42 A.L.E. 1194; 6 C.J.S., Arrest, Sec. 5, p. 580.

The State, urging that a peace officer may arrest without warrant either when (1) a misdemeanor is actually committed in his presence or (2) when he has reasonable cause to believe a misdemeanor is being committed in his presence, cites some twenty or more cases from other jurisdictions, principally those listed in the footnotes supporting one of the diverse views given in the text statement appearing in 6 C.J.S., Arrest, Sec. 6, p. 595. All the cited cases have been examined. They are distinguishable. In the light of the plain meaning of G.S. 15-39, none of the cited cases is considered authoritative or controlling with us. The cases fall generally into four classifications: (1) decisions controlled by statutes which expressly confer on peace officers broader powers of arrest in misdemeanor cases than are conferred by either the common law or our statute (G.S. 15-39) ; (2) decisions not controlled by statutes but which, nevertheless, are based on cases controlled by statutes conferring broader powers of arrest in misdemeanor cases than are conferred by either the common law or our statute; (3) decisions based upon the erroneous premise that under the common law any offense, felony or misdemeanor, committed in the presence of a peace officer is arrestable without warrant; and (4) decisions based on an erroneous declaration of the common law, as set out in the third classification, and which also embrace the further erroneous concept that under the common law an arrest without warrant may be justified in any case where the officer has probable cause or reasonable ground to believe a misdemeanor is being committed in his presence. Some of the cited decisions are premised on an erroneous interpretation of Carroll v. United States, supra (267 U.S. 132, 69 L. Ed. 543, 45 S. Ct. 280, 39 A.L.R. 790), as being authority for the proposition that a peace officer may arrest generally for any misdemeanor committed in his presence. "Whereas, the decision in the Carroll case, opinion by Mr. Chief Justice Taft, is susceptible of no such meaning; it rests squarely on the provisions of the National Prohibition Act, which expressly authorizes summary seizure and arrest whenever any person is found transporting intoxicating liquors in any vehicle in violation of law. For a clear analysis of the opinion in the Carroll case, and criticisms of subsequent cases based on the erroneous interpretation of this decision, see 75 University of Pennsylvania Law Review, 485 ei seq.

While the Act of 1868-69, which supplanted the common law rules of arrest without warrant, remains unchanged in basic principles and as now codified in its various parts — G.S. 15-39 through 15-46 — furnishes the fundamental rules governing arrest without warrant in this State, nevertheless, since the original enactment of this code of arrest without warrant, the Legislature has seen fit from time to time to extend the power of arrest without warrant to cover numerous specific situations and types of cases, some of State-wide application, others of local nature.

Chief among the local implementing statutes- are numerous municipal charter provisions which confer on peace officers authority to arrest on sight without process any person found violating any municipal ordinance, or in some instances committing any misdemeanor, regardless of whether the offense does or does not amount to a breach of the peace. See Coates, Law of Arrest in North Carolina, 15 N. C. Law Review, 101, where numerous examples of such charter provisions are cited. See also Alexander v. Lindsey, supra.

It is also noted that a number of implementing State-wide statutes have been enacted from time to time conferring on peace officers the power of arrest without warrant in cases not amounting to a breach of the peace. For example, G.S. 20-183 confers on law -enforcement officers power to stop any motor vehicle for the purpose of determining whether it is being operated in violation of any provision of the Motor Vehicle Act, and empowers such officers “to arrest on sight” any person found violating any provision of the Act. Also, when a peace officer discovers a person in the act of transporting intoxicating liquor in any vehicle in violation of law, G.S. 18-6 makes it the officer’s duty to seize the liquor, take possession of the vehicle, and arrest the person in charge- thereof. G.S. 113-91 (d) confers- on game protectors the power to arrest on the spot for violations of game laws committed in their presence. Forest wardens are given similar powers under G.S. 113-49 with respect to violations of the- forestry laws. For a list of other North Carolina statutes giving power of arrest without warrant in misdemeanor cases not amounting to a breach of peace, see Machen, Law of Arrest (publication of the Institute of Gov'ernment, University of North Carolina, 1950), p. 46.

We have examined the charter of the Town of Dallas, Chapter 351, Private Laws of 1913. It nowhere purports to confer on the police officers of the town authority to make arrests in misdemeanor cases without warrants in cases not amounting to a bre'ach of the peace. Indeed, no special statute implementing the Act of 1868-69 covering the ease at band bas been called to our attention, and our research discloses none. Nor does it appear that the defendant was tried for public drunkenness under a town ordinance. Rather, he was charged with public drunkenness under G.S. 14-335. Therefore, upon the record as presented the legality or illegality of the arrest in the instant case must be tested by the terms of the Act of 1868-69, and more particularly by the section thereof now codified as G.S. 15-39.

In the case at hand the evidence on which the State relies fails to show prima, facie- that the defendant’s conduct at the time of the arrest amounted either to an actual or threatened breach of the peace within the intent and meaning of G.S. 15-39. Hence, the arrest must be treated as illegal. This- being so, the State failed to make out a prima facie case of resisting arrest.

Nor does the evidence in any aspect show that the defendant used excessive force in resisting the illegal arrest. Therefore, the defendant’s motion for judgment as of nonsuit, both as to the charge of resisting arrest and assault, should have been allowed, and it is so ordered. The judgment below will be vacated and reversed and the motion for nonsuit sustained.

We have not overlooked the decision of this Court in S. v. Freeman, 86 N.C. 683, cited and relied on by the State, wherein peace officers were held justified in making an arrest without warrant for public drunkenness in their presence. The person arrested was found between the hours of ten and eleven o’clock at night lying helplessly intoxicated upon the sidewalk exposed to public view at a place much frequented in the town of Hendersonville, in violation of a town ordinance making such helpless state of intoxication a nuisance and punishable by fine or imprisonment. The arrest was upheld by the Court, not upon the theory that the prosecutor’s condition of drunkenness amounted to a breach of the peace, but rather upon the express ground that such drunkenness was an offense “against decency and morality” amounting to a nuisance and therefore arrestable on sight without warrant. It is apparent that the Court in so deciding S. v. Freeman was not advertent to the provisions of Chapter 178, Subchapter 1, Session Laws of 1868-69, and its salutary impact on the law of arrest in this State. This statute is nowhere mentioned in the opinion. Instead, the Court in holding that nuisance, as distinguished from breach of the peace, is sufficient to justify arrest without warrant, cites Archbold’s Criminal P. and P., *page 26, note 2. This is a standard English treatise on criminal law and procedure, first published in 1822. It has since appeared in numerous editions, the last one available to us being the 29th Edition, published in 1934. It was the 6th Edition published in 1853, with American notes by Waterman, that was available to the Court when S. v. Freeman was decided in 1882. The Archbold text clearly states tbe common law rule to the effect tbat in nonfelony cases arrest without warrant is justified only in breach of peace cases. The support for the novel proposition that nuisance not amounting to breach of the peace is arrestable without warrant is found in the cited footnote 2, *page 26. An examination of this footnote discloses that it in turn is based solely on the authority of “Swan’s Jus. p. 474.” Further investigation discloses that Swan’s is a manual type of work relating to powers and duties of justices of the peace and constables in Ohio, with forms, the 3rd Edition of which was published in 1841. It is significant that the next edition of Archbold available to us, the 8th Edition, with American notes by the eminent legal scholar J. N. Pomeroy, nowhere refers to the proposition stated in the cited Waterman note. In fact, Pomeroy does not bring forward any part of the Waterman note 2 found on *page 26 of the 6th Edition. It is manifest that the 8th Edition of this work, though published in 1880, was not available to the Court when S. v. Freeman was decided (in 1882). At any rate, nowhere among the authorities presently available to us, including subsequent editions of Arehbold, have we found authoritative support for the proposition that, in the absence of special statutory enactment, a nuisance not amounting to a breach of the peace is arrestable without warrant. And it is manifest that an offense amounting to a nuisance is not per se a breach of the peace. 66 C.J.S., Nuisance, Sec. 9. Accordingly, we are constrained to hold that the decision in S. v. Freeman, being repugnant to established common law rules of arrest and also in direct contravention of the provisions of the Act of 1869, and particularly the portion thereof now codified as G.S. 15-39, is overruled. And we withdraw and treat as unauthoritative the subsequent pronouncements of this Court, whether they be — as in most instances they are' — obiter dicta, or — as in a few instances — decisive of decided cases, to the effect that, in the absence of statute, a nuisance or other misdemeanor not amounting to a breach of the peace is arrestable without warrant. See S. v. Pillow, 234 N.C. 146, 66 S.E. 2d 657; Perry v. Hurdle, 229 N.C. 216, 49 S.E. 2d 400; S. v. Loftin, 186 N.C. 205, 119 S.E. 209; S. v. Rogers, 166 N.C. 388, 81 S.E. 999; Sossamon v. Cruse, 133 N.C. 470, 45 S.E. 757; S. v. McAfee, supra (107 N.C. 812); S. v. Hunter, supra (106 N.C. 796).

Similarly, we treat as unauthoritative the decision in S. v. McNinch, 90 N.C. 695, which contains this statement to which the State directs our attention: “In malcing an arrest upon personal observation and without warrant, the officer will be excused when no offense has been perpetrated, if the circumstances are such as reasonably warrants the belief that it was (Neal v. Joyner, 89 N.C. 287) and the jury must judge of the reasonableness of the grounds upon which the officer acted.” (Italics added.) In making this pronouncement the Court inadvertently failed to note that Neal v. Joyner, 89 N.C. 287, on which the decision is expressly rested, was a felony case controlled by another part of the Act of 1869 — now G.S. 15-41 — which clearly authorized arrest on reasonable ground of belief: whereas, in S. v. McNinch the Court was dealing with -an alleged misdemeanor wherein the officer’s power of arrest derived from the so-called “breach of peace” portion of the Act of 1869 — now G.S. 15-39 — • which justifies arrest without warrant only when it is necessary to “suppress or prevent” a breach of the peace. Alexander v. Lindsey, supra (230 N.C. 663). Thus, it is manifest that the pronouncement contained in the foregoing italicized excerpt from S. v. McNinch is an erroneous application in a misdemeanor case of a rule applicable only in felony and “dangerous wound” cases. The pronouncement is disapproved and withdrawn, as are similar statements based on like facts in subsequent decisions of the Court. See S. v. Jenkins, 195 N.C. 747, 143 S.E. 538; S. v. Campbell, 182 N.C. 911, 110 S.E. 86; Sigmon v. Shell, 165 N.C. 582, 81 S.E. 739.

Where there are conflicting decisions the doctrine of stare decisis has no application. Patterson v. McCormick, 177 N.C. 448, 457, 99 S.E. 401. Nor should stare decisis be applied where it conflicts with a pertinent statutory provision to the contrary. 21 C.J.S., Courts, Sec. 187, p. 304. Moreover, where a statute covering the subject matter has been overlooked, the doctrine of stare decisis does not 'apply. 15 C.J. 958. Nor may the court by a line of erroneous decisions overrule a statutory enactment. Patterson v. McCormick, supra, at p. 457. Besides, the doctrine of stare decisis should never be applied to perpetuate palpable error. 21 C.J.S., Courts, Sections 187 and 193.

It is to be kept in mind that the decision in this case is no attempt to provide a code for arrest without warrant, nor do we attempt to close the hiatuses in present arrest procedure. Such matters are not within the province of the Court. Our intent here is to eliminate or minimize the conflicts that have developed in the construction and application of present statutes, to the end that peace officers may know with reasonable exactitude their rights and duties in respect to making arrests without warrant.

In the situation thus presented it is for the Legislature, rather than the Court, to determine whether it has or has not kept pace with the exigencies of the times in its process of conferring on various peace officers from time to time by piecemeal enactments broadened powers of arrest without warrant. In short, since this branch of the law has come to be prescribed and regulated wholly by statute, it is for the Legislature to ponder and decide whether the present statutes meet the minimum requirements of public safety and security, or whether further extensions are necessary; for example, by the enactment of a single State-wide statute authorizing any peace officer to arrest without warrant (1) when a misdemeanor or other criminal offense is committed in his presence, or (2) when he has reasonable ground to believe that the person to be arrested has committed a criminal offense and will evade arrest if not immediately taken into custody, with further enactment requiring that the minimum bond of $1,000 now required of peace officers by G.S. 128-9 be substantially increased. See Langley v. Patrick, 238 N.C. 250, 77 S.E. 2d 656.

For constructive criticisms of the present law of arrest see Machen, The Law of Arrest, p. 76 et seq.; 15 N. C. Law Review, p. 101, 103 et seq.; 29 Michigan Law Review, pp. 452 and 453; 28 Virginia Law Review, pp. 331, 332, and 343 et seq. See also 22 Michigan Law Review, p. 541; 49 Harvard Law Review, p. 566.

The judgment below is

Reversed.

BarNHill; C. J., concurs in result.