25 N.C. 20 | N.C. | 1842
The defendant was indicted for a misdemeanor. The first count in the indictment charges, that one William Bailey was arrested by William H. Gullidge, a deputy sheriff of ANSON, by lawful authority; that Bailey resisted the officer, who summoned the defendant to assist, and who refused to obey. The second count charges, that Elisha Hubbard, a justice of the peace, commanded William H. Gullidge, the deputy sheriff, to arrest William Bailey for disorderly (22)conduct, then and there committed in the presence of the magistrate, and that the justice then and there commanded the defendant, to assist the said deputy sheriff in the arrest, and that the defendant, in disregard of the command of the justice, refused to obey.
The jury, under the charge of the Court, found the defendant guilty on both counts.
We are of opinion, that the first count is so clearly insufficient, that it is not necessary to enquire, whether there was evidence to support it. That count is very bad, because the authority to the deputy sheriff to arrest Bailey, is not set forth in the said count. The statement that the arrest was by lawful authority, is not sufficient. The grand jury can only state such facts and circumstances, in the count, as will enable the Court (who is to decide upon the law,) to see whether they make up a crime, if true, as there stated. The grand jury are lay gens; and are not entrusted by the law to pronounce what will constitute a lawful authority, to enable an officer to make an arrest; the Court must see the authority set forth in the count, that it may judge whether it be a lawful authority or not.
The second count charges the defendant with disobedience to the command of Elisha Hubbard, the magistrate, to aid in the arrest of Bailey. Now, without deciding whether this count was sufficiently precise, there was no evidence in the cause that the magistrate ever ordered the defendant to aid the deputy sheriff in making the arrest of Bailey. *24 It appears from the case, that, after the deputy sheriff had been ordered by the magistrate to make the arrest, Bailey resisted the officer, and then the deputy sheriff summoned the defendant to aid him in making the arrest. Where the magistrate was, at that time, is not stated. But there is no evidence of any disobedience by the defendant to his command.
PER CURIAM. New trial.
Cited: S. v. Jones,
(23)
