State v. Jefferies

• Decision Date: 29 December 1972
• Docket Number: No. 7215SC781,7215SC781
• Citation: 193 S.E.2d 388,17 N.C.App. 195
• Parties: STATE of North Carolina v. John Thomas JEFFERIES.
• Court: North Carolina Court of Appeals

Page 388

193 S.E.2d 388

17 N.C.App. 195

STATE of North Carolina v. John Thomas JEFFERIES.

No. 7215SC781.

Court of Appeals of North Carolina.

Dec. 29, 1972 Certiorari Denied by Supreme Court Feb. 6, 1973.

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

W. R. Dalton, Burlington, for defendant.

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...