State v. Faulkner , 241 N.C. 609 ( 1955 )

86 S.E.2d 81 (1955) 241 N.C. 609

STATE
v.
Andrew June FAULKNER.

No. 577.

Supreme Court of North Carolina.

March 9, 1955.

Harry McMullan, Atty. Gen., and Ralph Moody, Asst. Atty. Gen., for the State.

W. B. Nivens, Monroe, John H. Rennick, Wadesboro, for Defendant, Appellant.

PARKER, Justice.

In this Court the defendant made a motion for arrest of judgment on the charge in the warrant upon the alleged ground that the warrant is void, because in the complaint attached to the warrant Dutton's name is written, where the defendant's should have been.

In the recent case of State v. Scott, 241 N.C. 178, 84 S.E.2d 654, 655, an indictment charging that the defendant did "``resist, delay and obstruct a public officer in discharge and attempting to discharge the duty of his office * * *.'" was held insufficient to charge the offense of resisting an officer. Upon the authority of that case we hold that the warrant here does not charge the offense of resisting an officer, that the motion in arrest of judgment raises the question for decision, and it is ordered that the judgment be arrested.

Therefore, it is not necessary for us to decide whether the warrant is void on the ground alleged by defendant. On this point see State v. Hammonds, 241 N.C. 226, 85 S.E.2d 133, and the cases therein cited.

The use of the word "or" in the warrant, to wit: "resist, delay or obstruct a public officer in discharging or attempting to discharge, etc.," instead of the word "and" is bad pleading. State v. Williams, 210 N.C. 159, 185 S.E. 661; 42 C.J.S., Indictments and Informations, § 101.

The defendant assigns as error the failure of the lower court to allow his motion for judgment of nonsuit. This exception is brought forward by the defendant, but in support of it no reason or argument is stated or authority cited, except argument that the warrant is void. We have said in State v. Tola, 222 N.C. 406, 23 S.E.2d 321, 324, "A defect appearing in a warrant or bill of indictment can be taken advantage of only by motion to quash or by motion in arrest of judgment." It would seem that the defendant by virtue of Rule 28, Rules of Practice in the Supreme Court, 221 N.C. 544, has abandoned his exception as to the insufficiency of the evidence to carry the cases to the jury.

The defendant assigns as error this part of the charge: "If the defendant's evidence raised a reasonable doubt as to his guilt or if such evidence caused to linger in the minds of the jury from the original presumption of innocence beyond a reasonable doubt as to his guilt or, if upon all the evidence, the jury entertained a reasonable doubt as to his guilt, the defendant is entitled to a verdict of not guilty, although the defendant's evidence may not have justified the jury of the matters and justifications or excuse." (Italics ours).

It is evident that the trial court in this part of its charge intended to quote what we said in State v. Carver, 213 N.C. 150, 195 S.E. 349, 350, which has been quoted with approval in State v. Cephus, 239 N.C. 521, 80 S.E.2d 147. The words used in the charge are the same as those in the Carver case with these exceptions: one, in the charge the word "beyond" is inserted; two, in the charge the word "justified" is used instead of "satisfied," and three, the charge used the words, "of the matters and justifications or excuse," when the Court's words were "matters in justification or excuse."

Just before the part of the charge excepted to above the trial court correctly charged as follows: "Now, there is no burden on the defendant at all in this case. The burden rests on the State to satisfy you from the evidence and beyond a reasonable doubt as to all of the elements." But when the judge went on to charge that if the defendant's "evidence caused to linger in the minds of the jury from the original presumption of innocence beyond a reasonable doubt as to his guilt" he would be entitled to a verdict of acquittal, it would seem that those words meant that the defendant's evidence must raise not a reasonable doubt, but beyond a reasonable doubt as to his guilt, before he could be acquitted. That, of course, is not the law and the error is prejudicial. State v. Cephus, supra. The statement of the law correctly before and later in the part of the charge assigned as error, except as to the unfortunate use of the word "justified" instead of "satisfied", does not cure the error. State v. Stroupe, 238 N.C. 34, 76 S.E.2d 313.

For error in the charge, there must be a new trial in the case of a felonious assault.

In the case of resisting arrest the legal effect of arresting the judgment is to vacate the verdict and sentence, and the State may proceed against the defendant, if it so desires, upon a new and sufficient warrant or bill of indictment. State v. Scott, 237 N.C. 432, 75 S.E.2d 154; State v. Sherrill, 82 N.C. 694, 695; 15 Am.Jur., Criminal Law, Sec. 441.

It is therefore ordered

In the Resisting an Officer Case—Judgment Arrested.

In the Felonious Assault Case—New Trial.

BARNHILL, C. J., and DEVIN, J., took no part in the consideration or decision of this case.