State v. Thorne
| Decision Date | 14 October 1953 |
| Docket Number | No. 77,77 |
| Citation | 78 S.E.2d 140,238 N.C. 392 |
| Parties | STATE, v. THORNE. a |
| Court | North Carolina Supreme Court |
Harry McMullan, Atty. Gen., and Claude L. Love, Asst. Atty. Gen., for the State.
W. O. Rosser, Whitakers, for defendant, appellant.
The testimony indicating that the defendant intentionally struck Thomas sometime after they reached the police station and that her sole object in so doing was to vent her spleen upon him suffices to overcome the general motion for a compulsory nonsuit and to support a conviction for simple assault. For this reason, we by-pass without discussion or decision the question debated by counsel whether or not the State's evidence compels the single conclusion that Thomas arrested the defendant without authority of law and that consequently the blows she struck in resistance to her arrest were justified.
We made this observation in the recent case of State v. Albarty, 238 N.C. 130, 76 S.E.2d 381, 382;
Scant heed was paid to the rules of pleading in criminal cases in the preparation of the warrant in the instant action. To be sure, the allegation 'that * * * the * * * defendant (Evella Thorne) unlawfully, willfully violated the laws of North Carolina * * * by * * * assault on * * * one Harvey Thomas' is sufficient to charge a simple assault. This is so because it charges that offense 'with such a degree of certainty and in such a manner as to enable a person of common understanding to comprehend the charge, and the court to pronounce judgment on the conviction according to the law of the case, and the accused to plead an acquittal or conviction on it in bar of another prosecution for the same offense.' 6 C.J.S., Assault and Battery, § 104, p. 960.
The warrant is fatally defective in all other respects.
The allegation 'that * * * the * * * defendant unlawfully, willfully violated the laws of North Carolina * * * by disorderly conduct by using profane and indecent language' imputes no crime to the accused. The phrase 'disorderly conduct,' standing alone, does not denote an offense known to the general law of the State. State v. Myrick, 203 N.C. 8, 164 S.E. 328; State v. Sherrard, 117 N.C. 716, 23 S.E. 157. The allegation cannot be construed to charge the statutory crime denounced by G. S. § 14-197 in these words: 'If any person shall, on any public road or highway and in the hearing of two or more persons, in a loud and boisterous manner, use indecent or profane language, he shall be guilty of a misdemeanor and upon conviction shall be fined not exceeding fifty dollars or imprisoned not exceeding thirty days.' It omits at least three elements of the statutory offense. It fails to state that the defendant used indecent or profane language (1) on a public road or highway, or (2) in the hearing of two or more persons, or (3) in a loud and boisterous manner. State v. Shanks, 88 Miss. 410, 40 So. 1005; 72 C.J.S., Profanity, § 4, p. 1213.
This brings us to the allegation 'that * * * the * * * defendant unlawfully, willfully violated the laws of North Carolina * * * by * * * resisting arrest.' There is no validity in the contention of the State that this allegation imputes to the accused a violation of G.S. § 14-223, which specifies that 'if any...
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...offense.”) (quoting Johnson v. United States, 559 U.S. 133, 138, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010) (alterations in original)). In State v. Thorne, the high court unambiguously held that an indictment for simple assault need not specify the type of assault alleged. 238 N.C. 392, 78 S.E.2d......
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...ex mero motu direct it to be done") (citing State v. Strickland , 243 N.C. 100, 103, 89 S.E.2d 781, 784 (1955) ;2 State v. Thorne , 238 N.C. 392, 396, 78 S.E.2d 140, 142 (1953) ; State v. Scott , 237 N.C. 432, 433–34, 75 S.E. 2d 154, 155 (1953) ), we are required by well-established North C......
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...principle. Among these are: State v. Ballengee, 191 N.C. 700, 132 S.E. 795; 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. Strickland, 243 N.C. 100, 89 S.E.2d 781; State v. Burton, 243 N.C. 277, 90 S.E.2d In the light of these decisions,......
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