87 S.E. 416 | N.C. | 1915
After stating the case: The defendant assigned three errors. The court failed to instruct the jury, as requested, that the defendant had the right to interfere and demand the production of the warrant, and, this being refused, to knock the officer down with the rock in order to rescue his brother; but in this we see no error, if the jury find the facts to be as the witness stated them. Justice Hoke said in S. v. Hill,
Whether a weapon is deadly does not depend so much upon the result of its use, which may be considered, as upon its size and character, the manner of its use, the size and strength of the person using it, and the person upon whom it is used, and, perhaps, other circumstances tending to throw light upon the question, all of which must be regarded by the court in determining whether or no the particular weapon is deadly. There are some instruments which are deadly per se, such as a gun, pistol, large knife, bar of iron, a club or bludgeon. A heavy oaken staff has been declared to be so. S. v. Phillips,
Justice Avery, in S. v. Phillips, supra, when quoting from S. v. Porter,
A deadly weapon is defined to be one which, if not of the class mentioned as so per se, would likely cause death or great bodily harm, considering the manner and circumstances of its use. In the case last cited it is said, at p. 605: "As to whether an instrument used in as assault and battery is a deadly weapon or not is generally a question of law.S. v. Huntley,
If it is a deadly weapon per se, and the court failed so to instruct the jury, the latter corrected the error by the verdict. If its character as being deadly or not depended upon the facts and circumstances, it became a question for the jury with proper instructions from the court. The officer was not bound to show his warrant, if he had one, when he made the arrest, if he was known to be an officer. S. v. Curtis,
In this case it appears that Harworth Beal made no resistance when he was arrested, and did not demand the production of the warrant or the authority of the officer to take him into custody, but went with the officer quietly and peaceably, and without the slightest protest, if the jury find these to be the facts from the evidence. Under these circumstances we think that the interference of the defendant and the assault on the officer were without legal excuse or justification. He had no right to demand a warrant, and there was no reason why he should have assaulted the officer with such violence. There was nothing in the situation of his brother that called for such action on his part. The officer (768) had a warrant for him, he submitted unresistingly to the arrest and never demanded that the officer show his warrant or other authority. The officer, being known as such, was therefore not violating the law, and defendant's attack upon him was unlawful. But what we have said is all based upon the assumption of a finding by the jury according to the evidence as now presented.
We must not be understood as justifying this or any other officer in arresting without warrant, except where allowed by law. An officer should obey the law as well as other persons, and, when he does so, the law will protect him while in the execution of its process.
This covers two of the assignments.
But we must grant a new trial because the court told the jury that, in his view, if the solicitor had seen proper to charge defendant with resisting an officer in the performance of his duty he would have been guilty. This was an expression of opinion upon the facts, in other words, that the witness had told the truth about the matter, and upon his testimony defendant would be guilty of resisting an officer. He could not be guilty of that crime unless the witness had testified truthfully. The judge may have meant that if the jury should find the facts *861
to be as they were stated by the witness, defendant would have been guilty of resisting the officer, and this would not have been any intimation of opinion upon the weight of the evidence; but that is not what was said, and the remark of the court was calculated to impress the jury with the belief that in the opinion of the court the fact that he had resisted the officer by assaulting him had been fully proved, and all that was in the way of a conviction therefor was a proper indictment. We are sure that the learned and careful judge did not intend to convey any such meaning by his language, and that it was merely an inadvertence; but the harm was done, though innocently, and without regard to the intention. This must result in a new trial. S. v. Dick,
There is also an error in regard to the doctrine of reasonable doubt, the opening sentence of the charge confining it, by implication, to the single question whether defendant used a deadly weapon. The new trial, though, is given upon the other ground.
New trial.
Cited: S. v. Sullivan,
(769)