State v. . Jones

41 S.E.2d 288, 227 N.C. 170, 1947 N.C. LEXIS 363

• Court: Supreme Court of North Carolina
• Decided: February 26, 1947
• Status: Published

Opinion

Stacy, C. J.

The charge of attempting to assault an officer with a deadly weapon was not before the Superior Court. S. v. Nichols, 215 N. C., 80, 200 S. E., 926; S. v. Perry, 225 N. C., 174, 33 S. E. (2d), 869. The defendant had been acquitted on this count in the Eecorder’s Court, and his appeal on the second warrant was limited to the count of resisting arrest. See S. v. Crandall, 225 N. C., 148, 33 S. E. (2d), 861, and cases there cited. Cf. S. v. Baldwin, 226 N. C., 295, 37 S. E. (2d), 898; S. v. Bell, 205 N. C., 225, 171 S. E., 50. When judgment of nonsuit was entered on this count, there remained nothing but the charge of disorderly conduct as contained in the first warrant.

The first warrant is artlessly drawn. Its imprecision is conceded.Indeed, it may be doubted whether it sufficiently charges any offense. But however this may be, the record hardly supports the charge of “acting in a disorderly manner on Granville St. by using indecent language.”

The ordinance of the Town of Tarboro provides: “Disturbing of Peace. It shall be unlawful to disturb the good order, peace and quiet of the town.” S. v. Sherrard, 117 N. C., 716, 23 S. E., 157.

If this be the ordinance which the defendant is charged with violating, so far as the record discloses, the only “indecent language” used by the defendant was an inquiry addressed to the chief of police, who immediately arrested the defendant, not so much for the inquiry, but because “he had run his mouth so much” and “was killing time” in getting his car out of the loading zone. The peace of the town seems to have been in the hands of the officers, who apparently were swift to enforce it, even to the point of harshness.

On the record as presented, we are constrained to hold that the prosecution on the first warrant must fail. This entitled the defendant to his discharge.

Reversed.