State v. Dunn

• Citation: 13 S.E. 881,109 N.C. 839
• Parties: State v. Dunn et ux.
• Decision Date: 18 November 1891
• Court: United States State Supreme Court of North Carolina

13 S.E. 881

109 N.C. 839

State v. Dunn et ux.

Supreme Court of North Carolina

November 18, 1891

Appeal from superior court, Randolph county; Jesse F. Graves, Judge.

Indictment of George Dunn and wife for resisting an officer. From an order arresting judgment on conviction the state assigns error. Reversed.

The bill of indictment is, in substance, as follows: "The jurors present," etc., "that George Dunn and his wife, Mrs. George Dunn, *** with force and arms, *** in and upon one J. A. Brady, then being one of the constables in the township of Brower, in the county of Randolph, and in the due execution of his said office, did make an assault; and him the said J. A. Brady, so being in the due execution of his said office, then and there willfully and unlawfully did resist, delay, obstruct, and hinder in discharging, and attempting to discharge, his duties as such constable against the form of the statute," etc. "And the jurors," etc., "do further present *** that the above-named defendants, with force and arms and with deadly weapons, to-wit, with a wagon tire of the weight of five pounds, did unlawfully make an assault upon one J. A. Brady against the form of the statute," etc.

The Attorney General, for the State.

Clark J.

There was error in granting the motion in arrest of judgment. It is not necessary, either under our statute (Act 1889, c. 51) or at common law, that the indictment for resisting an officer should "set out the warrant so as to show the title of the cause and name of the party named therein under which the officer attempted to make the arrest," when he was resisted, obstructed, etc., by the defendant. 1 Whart. Crim. Law, (9th Ed.) 650; Bowers v. People, 17 Ill. 373; McQuaid v. People, 3 Gilman, 76. Indeed, the indictment in this case seems to be a substantial copy of the form in 1 Archb. Crim. Pr. 941. It is sufficient to charge the assault as made upon the officer, etc., he being "in the due execution of his said office," and that thereby the defendant did willfully and unlawfully resist, hinder and obstruct said officer in the discharge of his duties as such. Com. v. Kirby, 2 Cush. 577. If there had been any technical reason that the warrant should name the title of the writ, and the person to be arrested thereunder when the officer was assaulted and resisted by the defendant, this was cured by the verdict. It was too late to object on that ground after the merits had been...