13 S.E. 881 | N.C. | 1891
The prosecution was instituted under chapter 51, Laws 1889.
The bill of indictment is, in substance, as follows:
"The jurors present, etc., that George Dunn and his wife, Mrs. George Dunn . . . with force and arms . . . in and upon one J. A. Brady, then being one of the constables in the township of Brower in the county of Randolph and in the due execution of his said office, did make an assault; and him, the said J. A. Brady so being in the due execution of his said office, then and there wilfully and unlawfully did resist, delay, obstruct and hinder in discharging and attempting to discharge his duties as such constable, against the form of the statute, etc.
"And the jurors, etc., do further present . . . that the above-named defendants, with force and arms and with deadly weapons, to wit, with a wagon-tire of the weight of five pounds, did unlawfully make an assault upon one J. A. Brady, against the form of the statute," etc.
There was a nol. pros. as to the second count, and after verdict of guilty upon the first, his Honor, upon motion of defendants, arrested the judgment, and the State appealed.
There was error in granting the motion in arrest of judgment. It is not necessary, either under our statute (Laws 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 *599
arrest," when he was resisted, obstructed, etc., by the defendant. 1 Wharton, C. L. (9 Ed.), 650; Bowers v. People,
Besides, the indictment was unquestionably good for the simple assault(S. v. Goldston,
The judgment in arrest must be set aside and the case remanded, that judgment may be pronounced upon the verdict.
Error.
Cited: S. v. Davis, ante, 810; S. v. Pickett,