State v. Thorne , 238 N.C. 392 ( 1953 )

78 S.E.2d 140 (1953) 238 N.C. 392

STATE
v.
THORNE.

No. 77a.

Supreme Court of North Carolina.

October 14, 1953.

Harry McMullan, Atty. Gen., and Claude L. Love, Asst. Atty. Gen., for the State.

W. O. Rosser, Whitakers, for defendant, appellant.

ERVIN, Justice.

The testimony indicating that the defendant intentionally struck Thomas sometime after they reached the police station and that her sole object in so doing was to vent her spleen upon him suffices to overcome the general motion for a compulsory nonsuit and to support a conviction for simple assault. For this reason, we by-pass without discussion or decision the question debated by counsel whether or not the State's evidence compels the single conclusion that Thomas arrested the defendant without authority of law and that consequently the blows she struck in resistance to her arrest were justified.

We made this observation in the recent case of State v. Albarty, 238 N.C. 130, 76 S.E.2d 381, 382; "There can be no valid trial, conviction, or punishment for a crime without a formal and sufficient accusation. * * * As a consequence, it is impossible to overmagnify the necessity of observing the rules of pleading in criminal cases. The first rule of good pleading in criminal cases is that the indictment or other accusation must inform the court and the accused with certainty as to the exact crime the accused is alleged to have committed."

Scant heed was paid to the rules of pleading in criminal cases in the preparation of the warrant in the instant action. To be sure, the allegation "that * * * the * * * defendant (Evella Thorne) unlawfully, willfully violated the laws of North Carolina * * * by * * * assault on * * * one Harvey Thomas" is sufficient to charge a simple assault. This is so because it charges that offense "with such a degree of certainty and in such a manner as to enable a person of common understanding to comprehend the charge, and the court to pronounce judgment on the conviction according to the law of the case, and the accused to plead an acquittal or conviction on it in bar of another prosecution for the same offense." 6 C.J.S., Assault and Battery, § 104, p. 960.

The warrant is fatally defective in all other respects.

The allegation "that * * * the * * * defendant unlawfully, willfully violated the laws of North Carolina * * * by disorderly conduct by using profane and indecent language" imputes no crime to the accused. The phrase "disorderly conduct," standing alone, does not denote an offense known to the general law of the State. State v. Myrick, 203 N.C. 8, 164 S.E. 328; State v. Sherrard, 117 N.C. 716, 23 S.E. 157. The allegation cannot be construed to charge the statutory crime denounced by G. S. § 14-197 in these words: "If any person shall, on any public road or highway and in the hearing of two or more persons, in a loud and boisterous manner, use indecent or profane language, he shall be guilty of a misdemeanor and upon conviction shall be fined not exceeding fifty dollars or imprisoned not exceeding thirty days." It omits at least three elements of the statutory offense. It fails to state that the defendant used indecent or profane language (1) on a public road or highway, or (2) in the hearing of two or more persons, or (3) in a loud and boisterous manner. State v. Shanks, 88 Miss. 410, 40 So. 1005; 72 C.J.S., Profanity, § 4, p. 1213.

This brings us to the allegation "that * * * the * * * defandant unlawfully, willfully violated the laws of North Carolina * * * by * * * resisting arrest." There is no validity in the contention of the State that this allegation imputes to the accused a violation of G.S. § 14-223, which specifies that "if any person shall willfully and unlawfully resist, delay or obstruct a public officer in discharging or attempting to discharge a duty of his office, he shall be guilty of a misdemeanor." A similar contention was expressly rejected in the recent case of State v. Raynor, 235 N.C. 184, 69 S.E.2d 155, 156, where a similar allegation was adjudged "wholly insufficient to support the verdict and judgment rendered."

In reaching the conclusion that the warrant does not charge any criminal offense except simple assault, we do not overlook the circumstances that the solicitor moved the court for authority to amend the warrant so as "to charge the violations in the words of the statutes, to-wit, * * * G.S. § 14-197 and G.S. § 14-223," and that the court allowed the motion. These events added nothing whatever to the warrant. The amendments were not actually made. State v. Moore, 220 N.C. 535, 17 S.E.2d 660; Sovine v. State, 85 Ind. 576. Since neither the motion nor the order set out the contemplated wording of the proposed amendments, the order allowing the motion to amend was not self executing. See in this connection: State v. Yellowday, 152 N. C. 793, 67 S.E. 480 and 42 C.J.S., Indictments and Informations, § 237, p. 1247. The warrant would not be bettered if the words of the motion were inserted in it. State v. Ballangee, 191 N.C. 700, 132 S.E. 795.

The defendant did not move in arrest of judgment in the superior court or in this court upon the supposed counts for disorderly conduct and resisting arrest on the ground that the allegations of the warrant relating to these matters do not charge criminal offenses. The respective duties of the superior court and this court under such circumstances are thus stated in State v. Watkins, 101 N.C. 702, 8 S.E. 346. "It seems that no motion in arrest of judgment was made in the court below; but that court should, in the absence of such motion, have refused to give judgment, upon the ground that the offense was not sufficiently charged in the indictment. The court cannot properly give judgment, unless it appears in the record that an offense is sufficiently charged. It is the duty of this court to look through and scrutinize the whole record, and, if it sees that the judgment should have been arrested, it will, ex mero motu, direct it to be done."

On the charge of simple assault: No error.

On all other charges: Judgment arrested.