State v. Morrisey

Supreme Court of North Carolina

State v. Morrisey

127 S.E.2d 283, 257 N.C. 679, 1962 N.C. LEXIS 414

DecidedSeptember 26, 1962

StatusPublished

This text of 127 S.E.2d 283 (State v. Morrisey) 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. Morrisey, 127 S.E.2d 283, 257 N.C. 679, 1962 N.C. LEXIS 414 (N.C. 1962).

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Opinion

Pee Cueiam.

The defendant’s brief is devoted to the contention that his attempted arrest by Constable Chesnutt was unlawful and for that reason the trial judge erred in overruling his motion for non-suit.

If Constable Chestnutt’s attempt to arrest defendant was lawful, defendant was clearly guilty of an assault upon him. If the attempted arrest was unlawful, the defendant was permitted to use only such force as reasonably appeared to him to be necessary to prevent being taken into custody. State v. Mobley, 240 N.C. 476, 83 S.E. 2d 100.

According to the State’s evidence, which we accept as true on the motion for nonsuit, after the constable hit defendant with a blackjack, defendant cut him once in the head and three times in the stomach. Thirty-eight stitches were required to close the wounds. A uniformed policeman was on the scene but defendant asked for no protection.

This evidence would require the submission of the case to the jury on the question of whether the defendant used excessive force even should it be conceded that Constable Chesnutt was unlawfully attempting to arrest him. The issue of his guilt was submitted to the jury under a charge which gave the defendant the benefit of every contention and inference arising from the evidence in his behalf. He took no exception to any of it. The record discloses that defendant has had a fair trial and that the jury decided against him.

No error.

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Pee Cueiam.

The defendant’s brief is devoted to the contention that his attempted arrest by Constable Chesnutt was unlawful and for that reason the trial judge erred in overruling his motion for non-suit.

If Constable Chestnutt’s attempt to arrest defendant was lawful, defendant was clearly guilty of an assault upon him. If the attempted arrest was unlawful, the defendant was permitted to use only such force as reasonably appeared to him to be necessary to prevent being taken into custody. State v. Mobley, 240 N.C. 476, 83 S.E. 2d 100.

According to the State’s evidence, which we accept as true on the motion for nonsuit, after the constable hit defendant with a blackjack, defendant cut him once in the head and three times in the stomach. Thirty-eight stitches were required to close the wounds. A uniformed policeman was on the scene but defendant asked for no protection.

This evidence would require the submission of the case to the jury on the question of whether the defendant used excessive force even should it be conceded that Constable Chesnutt was unlawfully attempting to arrest him. The issue of his guilt was submitted to the jury under a charge which gave the defendant the benefit of every contention and inference arising from the evidence in his behalf. He took no exception to any of it. The record discloses that defendant has had a fair trial and that the jury decided against him.

No error.

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Bluebook (online)

127 S.E.2d 283, 257 N.C. 679, 1962 N.C. LEXIS 414, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-morrisey-nc-1962.

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