State v. . Dunn

Supreme Court of North Carolina

State v. . Dunn

13 S.E. 881, 109 N.C. 839

CourtSupreme Court of North Carolina

DecidedSeptember 5, 1891

StatusPublished

Cited by4 cases

This text of 13 S.E. 881 (State v. . Dunn) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. . Dunn, 13 S.E. 881, 109 N.C. 839 (N.C. 1891).

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Opinion

Clark, J.:

There was error in granting the motion in arrest of judgment. It is not necessary, either under our statute (Acts, 1889, ch. 51) nor 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 #as resisted, obstructed, etc., by the defendant. 1 Wharton, C. L (9th Ed.), 650; Bowers v. People, 17 Ill., 373; McQuaid v. People, 3 Gilm., 76. Indeed, the indictment in this case seems to be a substantial copy of the form in 1 Arch. Or. 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 wilfully 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 passed on by a.jury. But as we have seen, these details were matters of evidence, and need not be charged in the indictment. Had the defendant desired (as it seems he did not) this additional information to enable him to make a better defence, he should have moved the Court before going into the trial for a bill of particulars. State v. Brady, 107 N. C., 822.

Besides, the indictment was unquestionably good for the simple assault (State v. Goldston, 103 N. C., 323), and if any offence was charged, though not the one intended, it was error to quash or arrest the judgment. State v. Evans, 27 N. C., 603. If the indictment had been defective, except as a charge of a simple assault, the jurisdiction of the Court might have been *841 ousted by showing that the offence took place within twelve months before indictment found, but the judgment could not be arrested on that ground, as the date alleged is not traversable, and the jurisdiction is in the Superior Court, unless it is shown in proof that the requisite-time had not elapsed. State v. Taylor, 83 N. C., 601.

The judgment in arrest must be set aside and the case remanded, that judgment may be pronounced upon the verdict.

Error.

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Clark, J.:

There was error in granting the motion in arrest of judgment. It is not necessary, either under our statute (Acts, 1889, ch. 51) nor 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 #as resisted, obstructed, etc., by the defendant. 1 Wharton, C. L (9th Ed.), 650; Bowers v. People, 17 Ill., 373; McQuaid v. People, 3 Gilm., 76. Indeed, the indictment in this case seems to be a substantial copy of the form in 1 Arch. Or. 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 wilfully 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 passed on by a.jury. But as we have seen, these details were matters of evidence, and need not be charged in the indictment. Had the defendant desired (as it seems he did not) this additional information to enable him to make a better defence, he should have moved the Court before going into the trial for a bill of particulars. State v. Brady, 107 N. C., 822.

Besides, the indictment was unquestionably good for the simple assault (State v. Goldston, 103 N. C., 323), and if any offence was charged, though not the one intended, it was error to quash or arrest the judgment. State v. Evans, 27 N. C., 603. If the indictment had been defective, except as a charge of a simple assault, the jurisdiction of the Court might have been *841 ousted by showing that the offence took place within twelve months before indictment found, but the judgment could not be arrested on that ground, as the date alleged is not traversable, and the jurisdiction is in the Superior Court, unless it is shown in proof that the requisite-time had not elapsed. State v. Taylor, 83 N. C., 601.

The judgment in arrest must be set aside and the case remanded, that judgment may be pronounced upon the verdict.

Error.

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Bluebook (online)

13 S.E. 881, 109 N.C. 839, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-dunn-nc-1891.

Opinion

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