State v. Jefferies , 17 N.C. App. 195 ( 1972 )

193 S.E.2d 388 (1972) 17 N.C. App. 195

STATE of North Carolina
v.
John Thomas JEFFERIES.

No. 7215SC781.

Court of Appeals of North Carolina.

December 29, 1972. Certiorari Denied February 6, 1973.

Atty. Gen. Robert Morgan, by Asst. Atty. Gen. William W. Melvin, for the State.

W. R. Dalton, Burlington, for defendant.

Certiorari Denied by Supreme Court February 6, 1973.

BROCK, Judge.

Defendant's assignments of error are directed to one principal argument. Defendant argues that the trial judge failed and refused to allow the jury to pass upon whether the arresting officer had reasonable grounds to believe that defendant had committed a misdemeanor (operated a motor vehicle upon a public highway while under the influence of intoxicating liquor) in the officer's presence.

Under the provisions of G.S. § 20-183 and G.S. § 15-41(1) a North Carolina Highway Patrolman has authority to arrest without a warrant when the officer has reasonable ground to believe that the person to be arrested has committed a misdemeanor in the officer's presence.

Defendant first argues that the verdict of not guilty of the offense for which defendant was arrested (driving a motor vehicle on a public highway while under the influence of intoxicating liquor) was tantamount to a finding that the arresting officer did not have reasonable ground to believe defendant had committed the offense in the officer's presence. This argument must fail. The failure of the State to satisfy the jury beyond a reasonable doubt of defendant's guilt of the offense charged is a far cry from a failure to satisfy the jury beyond a reasonable doubt that the arresting officer had reasonable ground to believe defendant had committed the offense in the officer's presence. In order to justify an officer in making an arrest without a warrant, it is not essential that the 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. State v. Mobley, 240 N.C. 476, 83 S.E.2d 100.

Defendant argues that, unless the arresting officer had reasonable grounds to believe that defendant had committed the offense in the officer's presence, the arrest would be unlawful and defendant would be justified in resisting. We think the legal principles argued by defendant are generally sound.

"The offense of resisting arrest, both at common law and under the statute, G.S. § 14-223, presupposes a lawful arrest." State v. Mobley, supra. Likewise, the offense under G.S. § 14-33(c)(4) of assaulting a public officer when such officer is discharging or attempting to discharge a duty of his office presupposes lawful conduct of the public officer in discharging or attempting to discharge a duty of his office. "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. (citations omitted)." State v. Mobley, supra.

Defendant further argues that his plea raised the question of whether the officer had reasonable grounds to believe defendant had committed the offense in the officer's presence. He argues that this is a factual question to be decided by the jury and that the trial judge would not allow the jury to decide it.

We agree that the reasonableness of the officer's grounds to believe the defendant had committed a misdemeanor in the officer's presence, when properly raised, is a factual question to be decided by the jury. However, we do not agree with defendant that the jury was not allowed to decide the question in this case. The trial judge clearly instructed the jury that it must find beyond a reasonable doubt, as one of the elements of the offense of an assault on a public officer, that the officer had probable cause to believe that defendant had committed the offense in the officer's presence. With respect to the conviction of assault under G.S. § 14-33(c)(4) defendant's assignment of error is overruled.

However, with respect to the charge of resisting arrest, the trial judge did not require the State to prove beyond a reasonable doubt that the officer had reasonable grounds to believe the defendant had committed the misdemeanor offense in his presence. The instructions given merely required the State to prove beyond a reasonable doubt that the defendant resisted arrest "after an officer had given him notice that he was arresting him for a criminal offense." Under this instruction a defendant could be found guilty of resisting an illegal arrest. We hold this instruction to be incomplete and erroneous.

However, we note that the two charges of which defendant was found guilty were consolidated for judgment. The sentence imposed is fully supported by the verdict of guilty of assault under G.S. § 14-33(c)(4) in which we find no error. Therefore, we conclude that the error in the instruction upon the charge of resisting arrest is not prejudicial. See State v. Thomas, 244 N.C. 212, 93 S.E.2d 63.

Defendant does not argue or otherwise raise any question in this case as to whether the evidence discloses one offense against the arresting officer or whether it discloses two offenses against the arresting officer. cf. State v. Summrell, Supreme Court of North Carolina, 192 S.E.2d 569, filed 15 November 1972.

No error.

CAMPBELL and GRAHAM, JJ., concur.