21 N.C. App. 530 | N.C. Ct. App. | 1974
It is common knowledge that the military frequently pays a bounty to those who turn in deserters. On the night in question, the officers involved, apparently acting as bounty hunters, with no probable cause, no warrant and no legal authority, simply entered the Onslow Guest House and began canvassing for deserters. The Onslow Guest House is private property, surrounded by a four-foot fence and open only to tenants and their guests. One of the specific duties of the manager, so he testified, was to prevent members of the public from wandering through the fence and into the Onslow Guest House. The officers were, in effect, trespassers and were told by Mr. Carroll, in no uncertain terms, to leave the premises.
The officers then took out an arrest warrant for Mr. Carroll for disorderly conduct in violation of G.S. 14-288.4 (a) (2). This statute prohibits the creation of a “public disturbance.” At all relevant times the defendant was on his own property, protecting it and his tenants from the harassment of trespassers. The officers were aware of this fact and knew or should have known that the- Onslow Guest House was not a public place and that it was they and not Mr. Carroll who were acting illegally and outrageously. We think it clearly appears from the record that the arrest warrant was not taken in good faith but in retaliation and charged the defendant with an offense that was trumped up by the officers.
In State v. McGowan, 243 N.C. 431, 90 S.E. 2d 703 (1956), the North Carolina Supreme Court held that where police officers attempt an arrest under an invalid arrest warrant, the person sought to be arrested has a legal right to resist and that, in such instances, in prosecutions for resisting arrest, the defendant’s motion for judgment as of nonsuit should be granted. See also State v. Sparrow, 276 N.C. 499, 173 S.E. 2d 897 (1970). The warrant in this case was most questionable under the circumstances; and the defendant, in resisting the arrest, did act within his legal right. We adopt the reasoning of State v. McGowan, swpra, and hold that it was error not'to grant the defendant’s motion for judgment as of nonsuit.