State v. Harvey

86 S.E.2d 793 (1955) 242 N.C. 111

STATE
v.
Mamie Garrett HARVEY.

No. 292.

Supreme Court of North Carolina.

April 13, 1955.

C. J. Gates, M. E. Johnson, Durham, for defendant-appellant.

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

WINBORNE, Justice.

Defendant moves in this Court for arrest of judgment (1) in the two cases based on warrants charging the defendant "did resist, hinder, delay and obstruct" a named officer, while in the performance of his official duty, and (2) in the case based on warrant charging that defendant "did assault Jim Davis, an authorized highway patrolman, while in the performance of his official duty."

(1) In the light of decisions of this Court in State v. Raynor, 235 N.C. 184, 69 S.E.2d 155; State v. Thorne, 238 N.C. 392, 78 S.E.2d 140; State v. Jenkins, 238 N.C. 396, 77 S.E.2d 796; State v. Scott, 241 N.C. 178, 84 S.E.2d 654; State v. Eason, N.C., 86 S.E.2d 774, interpreting and applying the provisions of G.S. § 14-223, the charge in each of the two cases, first mentioned above, is fatally defective. While the public officer is identified by name, the charge fails to "indicate the official duty he was discharging or attempting to discharge, nor does it point out even in a general way the manner in which the defendant is charged with having resisted or delayed or obstructed such public officer",—quoting language of Bobbitt, J., in the Eason case supra.

Therefore defendant's motions in arrest of judgment as to the charge in these two cases are allowed.

(2) However, the charge of assault upon the officer Davis is sufficient to repel a motion in arrest of judgment. Hence the motion is denied.

Moreover, the evidence offered by the State tends to show that while police officer Ackert, assisted by highway patrolman Davis, had defendant under lawful arrest for traffic violations committed in the presence of officer Ackert, at the police station she was "kicking, biting and hollering," and that she attempted to strike Ackert with a Coca Cola bottle and kicked him four or five times on his legs; and (b) that she grabbed a Coca Cola bottle, and swinging at patrolman Davis, she turned it "aloose" and it struck him across the knee, and that she bit him on the hand.

True, defendant on the other hand denied in the main evidence of the State in these respects, but the evidence offered by the State was sufficient to take the case to the jury and to support the verdicts of guilty on the charges of assault. Hence the case was properly one of fact for the jury to decide under appropriate charge of the court.

Other assignments of error presented by defendant, in brief filed in this Court, have been given due consideration, and in them prejudicial error is not made to appear. Therefore express consideration of them seriatim would serve no useful purpose.

It is noted that the numbering given to the case in Superior Court is not clear as to which case each applies. This needs clarification, and may be done in Superior Court in the light of this opinion.

Also, it appears that the judgments in the assault cases were suspended on conditions stated. But a court may suspend the execution of its judgment upon prescribed conditions only with defendant's consent, express or implied. Here defendant did not consent. She excepted and appealed. The judgment, therefore, is stricken out in each of the assault cases and the causes remanded for proper judgment on the verdicts, State v. Cole, 241 N.C. 576, 86 S.E.2d 203, and cases cited. See also State v. Eason, supra.

For reasons stated:

Judgments arrested: On charges resisting officer.

Judgments stricken and causes remanded for proper judgment: On charges of assault.

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