State v. Jenkins

• Decision Date: 06 June 1928
• Docket Number: 575.
• Parties: STATE v. JENKINS.
• Court: North Carolina Supreme Court

143 S.E. 538

195 N.C. 747

STATE v. JENKINS.

No. 575.

Supreme Court of North Carolina

June 6, 1928

Appeal from Superior Court, Graham County; Deal, Judge.

Sherman Jenkins was convicted of assault and battery with a deadly weapon, and he appeals. New trial.

R. L Phillips, of Robbinsville, for appellant.

D. G Brummitt, Atty. Gen., and Frank Nash, Asst. Atty. Gen., for the State.

CLARKSON J.

The defendant was convicted of assault and battery with a deadly weapon upon one Luther Spivey, and, from the judgment upon such conviction, appealed to this court.

Luther Spivey was indicted in one bill of indictment for an assault with a deadly weapon on Sherman Jenkins, and Sherman Jenkins was indicted in another bill for assault with deadly weapon on Luther Spivey. By agreement, the cases were tried together.

The following seems to be a fair statement of the case as made out by the state. Sherman Jenkins was deputy sheriff of Graham county, and had been such for about four years. Luther Spivey testified himself that he knew Sherman Jenkins. The defendant, Sherman Jenkins, offered to prove by one I. N Wilson that he (Wilson) told him (Sherman Jenkins) that Luther Spivey was bringing in liquor and selling it, and, if he would watch him, he could catch him; that he had been getting some himself. On the early evening of September 15 1927, he met Luther Spivey coming up the highway about 75 yards from his house. The lights of the car were right on Spivey, who had in his hand a suitcase apparently full of liquor, and he had a walking stick in the other hand. Jenkins was accompanied by a witness, Wence Orr. On seeing Spivey with this suitcase, he halted him, and told him he was under arrest, and that he would have to see what he had in the grip. Spivey knew him, and he had, on the outside of his coat, his badge as deputy sheriff. Spivey told him that he could not search the grip without a warrant; thereupon he sent Orr after a warrant. When Spivey started walking up the road, the defendant, Jenkins, walked in front of him. Thereupon Spivey stepped off the banks into the woods, and went down the mountain, and undertook to go up the river. Jenkins told Spivey that he had taken that suitcase as far as he was going to, and he went to take hold of it, having his pistol in his hand at the time. Spivey struck him with a stick about the size of a round of a chair, and thereupon Jenkins shot at him. One of the shots took effect in the hip of Spivey. Spivey contradicted this evidence of Jenkins as to the time when he was shot in the hip, and claimed that he did not strike Jenkins at the time that he was shot, but later on, when he had gone about a quarter of a mile.

According to Jenkins' testimony Spivey, in the fight, dropped the suitcase which he thought had in it liquor. Near a branch right where Spivey entered the brush toward the river a suitcase was found. It had four half-gallon cans of whisky in it, and four big apples. This was testified to also by Bob Jenkins, the magistrate, and Wence Orr. Spivey denied that this suitcase was his, and claimed that he had nothing in the suitcase that he was carrying except clothes. It appears that Spivey was carrying a suitcase loaded with liquor for the purpose of sale.

Without treating consecutively the exceptions of the defendant's counsel on this appeal, there can be no doubt, we think, under the decisions of this court, that the defendant, Jenkins, had authority to arrest Spivey when he met him coming along the road with a suitcase loaded as this suitcase was, particularly when his attention had been directed to Spivey specifically as a man who was selling liquor in the camp, and, if he would watch out for him, he would find him transporting it or selling it. All he need show is satisfactory reasons for his belief that Spivey was in his presence breaking the law by transporting spirituous liquors. Neal v. Joyner, 89 N.C. 257.

In State v. McAfee, 107 N.C. at p. 816, 12 S.E. 437, 10 L. R. A. 607, it is said:

"If the assault with the stick described was committed in the presence of the officer, Severs, and he was known to the defendant to be a justice of the peace, it was not unlawful to arrest without informing the offender of the nature of the charge, as well as without warrant. 3 Whart. Cr. L. § 2829. We concur with the judge below in the view expressed in his charge, that, if the defendant struck his wife with the stick described by the witness at a point so near to the officer that he could distinctly hear what was said and the sound made by the blow, it would be considered in law a breach of the peace in his presence, though he could not at the time actually see the former, because it was too dark." State v. Hunter, 106 N.C. 796, 11 S.E. 366, 8 L. R. A. 530, and notes. Neal v. Joyner, supra; State v. McNinch, 90 N.C. 695; Martin v. Houck, 141 N.C. 317, 54 S.E. 291, 7 L. R. A. (N. S.) 576; Brewer v. Wynne, 163 N.C. 322, 79 S.E. 629, Ann. Cas. 1915B, 319; State v. Fowler, 172 N.C. 910, 90 S.E. 408; State v. Blackwelder, 182 N.C. 899, 109 S.E. 644; State v. Campbell, 182 N.C. at page 914, 110 S.E. 86.

The defendant, Jenkins, had arrested Spivey, and Spivey was then in his custody. When Spivey told him that he could not search his suitcase without a search warrant, he had a right to hold Spivey until the search warrant came. It is necessary to remember that Spivey was under arrest.

In State v. Dunning, 177 N.C. 559, at p. 562, 98 S.E. 530, 531, 3 A. L. R. 1166, Hoke, J., says:

"It is a principle very generally accepted that an officer, having the right to arrest an offender, may use such force as is necessary to effect his purpose, and to a great extent he is made the judge of the degree of force that may be properly exerted. Called on to deal with violators of the law, and not infrequently to act in the presence of conditions importing serious menace, his conduct in such circumstances is not to be harshly judged, and if he is withstood, his authority and purpose being made known, he may use the force necessary to overcome resistance and to the extent of taking life if that is required for the proper and efficient performance of his duty. It is when excessive force has been used maliciously or to such a degree as amounts to a wanton abuse of authority that criminal liability will be imputed. The same rule prevails when an officer has a prisoner under lawful arrest and the latter makes forcible effort to free himself; and, in this jurisdiction, the position holds whether the offense charged be a felony or a misdemeanor, the governing principle being based on the unwarranted resistance to lawful authority and not dependent, therefore, on the grade of the offense. These views are in accord with numerous decisions of our Court in which the questions presented were directly considered as in S. v. Sigman, 106 N.C. 728 S. v. McMahan, 103 N.C. 379 S. v. Pugh, 101 N.C. 737 [7 S.E. 757, 9 Am. St. Rep. 44;] S. v. McNinch, 90 N.C. 695; S. v. Garrett, 60 N.C. 144 S. v. [Stalcup] Stallcup, 24 N.C. 50."

The limits of the authority of an officer to use a deadly weapon to stop a fleeing prisoner are also set out. State v Simmons, 192 N.C. 692, 135...