State v. Mobley

• Decision Date: 09 July 1954
• Docket Number: No. 506,506
• Court: North Carolina Supreme Court
• Parties: STATE, v. MOBLEY

Page 100

83 S.E.2d 100

240 N.C. 476

STATE, v. MOBLEY

No. 506

Supreme Court of North Carolina.

July 9, 1954

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

R. Gregg Cherry, Ernest R. Warren, and Charles E. Hamilton, Jr., Gastonia, for defendant, appellant.

JOHNSON, Justice.

The offense of resisting arrest, both at common law and under the statute, G.S. § 14-223, presupposes a lawful arrest. 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. State v. Beal, 170 N.C. 764, 87 S.E. 416; State v. Allen, 166 N.C. 265, 80 S.E. 1075; State v. Belk, 76 N.C. 10; State v. Bryant, 65 N.C. 327; State v. Kirby, 24 N.C. 201; State v. Curtis, 2 N.C. 471; 4 Am.Jur., Arrest, Sec. 92; 6 C.J.S., Arrest, § 13, page 613. See also 28 Va. Law Review, p. 330.

True, the right of a person to use force in resisting an illegal arrest is not unlimited. He may use only such force as reasonably appears to be necessary to prevent the unlawful restraint of his liberty. State v. Allen, supra. See also State v. Glenn, 198 N.C. 79, 150 S.E. 663. And where excessive force is exerted, the person seeking to avoid arrest may be convicted of assault, or even of homicide if death ensues, 4Am.Jur., Arrest, Sec. 92, but in no event may a conviction of the offense of resisting arrest be predicated upon resistance of an unlawful arrest. State v. Allen, supra; State v. Belk, supra; Prosser on Torts, p. 165.

This brings us to the pivotal question presented by this appeal: Was the arrest of the defendant lawful or unlawful? Necessarily, the answer is dependent on whether the officers had the right to arrest the defendant without a warrant.

It has always been the general rule of the common law that ordinarily an arrest should not be made without warrant and that, subject to well-defined exceptions, an arrest without warrant is deemed unlawful. 4 Bl.Com. 289 et seq.; 6 C.J.S., Arrest, § 5, page 579; 5 C.J., p. 395. This foundation principle of the common law, designed and intended to protect the people against the abuses of arbitrary arrests, is of ancient origin. It derives from assurances of Magna Carta and harmonizes with the spirit of our constitutional precepts that the people should be secure in their persons. Nevertheless, to this general rule that no man should be taken into custody of the law without the sanction of a warrant or other judicial authority, the processes of the early English common law, in deference to the requirements of public security, worked out a number of exceptions. These exceptions related in the main to cases involving felonies and suspected felonies and to breaches of the peace. 4 Bl.Com. 292 et seq.; Archbold's Criminal P and P, 29th Edition, p. 1013 et seq.; 4 Am.Jur., Arrest, Sections 22 to 38. Arrest without warrant in felony cases was justified at common law on the theory that dangerous criminals and persons charged with heinous offenses should be incarcerated with all possible haste in the interest of public safety. Whereas, the necessity for prompt on-the-spot action in suppressing and preventing disturbances of the public peace was the factor which justified arrest without warrant in misdemeanor cases involving breaches of the peace. In such cases, with the moving consideration being the immediate preservation of the public peace, rather than the due apprehension of the offender, the theory prevailed that unless the public peace was menaced, the delay incident to obtaining a warrant from a judicial officer would not prejudice the interests of the State in punishing the offender. See Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, 39 A.L.R. 790. See also 75 University of Pennsylvania Law Review, 485.

It is not necessary for us to deal at length with the refinements of the common law exceptions to the general rule against arrest without warrant. This is so for the reason that in this State the common law exceptions have been enacted or supplanted by statute, so that the power of arrest without warrant is now defined and limited entirely by legislative enactments. And the rule is that where the right and power of arrest without warrant is regulated by statute, an arrest without warrant except as authorized by statute is illegal. Sims v. Smith, 115 Conn. 279, 161 A. 239; State v. Bradshaw, 53 Mont. 96, 161 P. 710; State v. De Hart, N.J.Com.Pl., 129 A. 427; Mazzolini v. Gifford, 90 Vt. 352, 98 A. 904; 6 C.J.S., Arrest, § 5, pages 579 and 580. See also Stearns v. Titus, 193 N.Y. 272, 85 N.E. 1077; Vinson v. Commonwealth, 219 Ky. 482, 293 S.W. 984; Fitzpatrick v. Commonwealth, 210 Ky. 385, 275 S.W. 819.

Our General Assembly of 1868-69 enacted a comprehensive, all-embracing set of rules prescribing and limiting the power of arrest without warrant. This Act, which may well be called our Code of Arrest Without Warrant, is Chapter 178, Subchapter 1, Session Laws of 1868-69. Its caption reads as follows: 'When and by whom arrests may be made without process. ' This statute clarifies, in some particulars modifies, and in other ways extends the pre-existing rules of the common law governing arrest without warrant, but in the main the Act is declaratory of the common law. The statute has been preserved and brought forward through successive codifications of our statute law. It is now codified in pertinent parts as G.S. §§ 15-39, 15-40, 15-41, 15-43, 15-44, 15-45, and 15-46.

The basic rules governing arrest without warrant as prescribed by the Act of 1869 may be distinguished as they relate to (1) felonies and to (2) misdemeanors. We discuss them in that order:

1. Felonies.--G.S. § 15-41, Subchapter 1, Section 3 of the Act of 1869, confers on peace officers the right to make arrests without process when the officer has 'reasonable ground to believe' (1) a felony has been committed or a 'dangerous wound' inflicted, (2) that a particular person is guilty, and (3) that such person may escape if not immediately arrested. Under this statute the significant features are that the felony or dangerous wound need not necessarily be committed or inflicted in the presence of the officer. Indeed, in order to justify the arrest it is not essential that any such serious 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. Moreover, in the instances enumerated an arresting officer is protected by the statute against the consequences of an erroneous arrest based on mistaken identity of the offender; all that is required is that the officer have reasonable ground to believe he is after the right person and that the suspect will escape unless immediately arrested.

G.S. § 15-40, Subchapter 1, Section 6 of the Act of 1869, authorizes private persons to make arrests in certain felony cases. By the terms of this statute, when a felony actually has been committed in the presence of a private person, he may forthwith arrest without warrant (1) the person he knows to be guilty, or (2) the person he has reasonable ground to believe to be guilty. It is noted that this statute confers on a private citizen the right of arrest only when a felony is actually committed in his presence. Thus, if it turns out that the supposed offense is not a felony, then the arresting private citizen may not under the terms of the statute justify taking the suspect into custody. However, if a felony actually has been committed in his presence, then the private person making the arrest has the protective benefits of the statute if he arrests either (1) the guilty person or (2) the person he has reasonable ground to believe is guilty of the offense, although perchance the person arrested may be innocent.

2. Misdemeanors.--G.S. § 15-39, Subchapter 1, Section 1 of the Act of 1869, deals with breaches of the peace. This statute confers on peace officers and private persons, on equal terms, the power of arrest without warrant in certain misdemeanor cases. The statute follows in the main the pre-existing principles of the common law. The language of the statute is as follows: 'Every person present at any riot, rout, affray or other breach of the peace, shall endeavor to suppress and prevent the same, and, if necessary for that purpose, shall arrest the offenders. ' It is significant to note that the statute--as did the rules of the common law it supplanted--confers no power of arrest without warrant in misdemeanor cases, as such. The power of arrest without warrant is referable entirely to the question of breach of the peace. The test is not whether the offense is a misdemeanor, but, rather, whether an arrest is necessary in order to 'suppress and prevent' a breach of the peace. The fact that an offense arrestable under this statute as a breach of the peace is also a misdemeanor, is purely coincidental. See Alexander v. Lindsey, 230 N.C. 663, 55 S.E.2d 470.

This brings us to an analysis of the intent and meaning of G.S. § 15-39. Its language is plain and clear. An arrest without warrant may be made under the provisions of this statute by anyone when it is necessary to 'suppress and prevent' a breach of the peace. This means that either a peace officer or a private person may arrest anyone who in his presence is (1) actually committing or (2) threatening to commit a breach of the peace. To justify an arrest on the ground of necessity in order to 'suppress' a breach of the peace, the conduct of the person arrested must amount to an actual breach of the peace in the presence of the person making the arrest. Whereas, to justify an arrest in order to 'prevent' a breach of the peace, ordinarily there must be at least a threat of a breach of the peace, together with some overt act in attempted execution of the threat. However, we think a breach of the peace is...