Lead Opinion
Thе offense of resisting arrest, both at common law and under the statute, G.S. 14-223, presupposes a lawful arrest. It is axiomatic that every person has the right to resist an unlawful arrest. In such case the person attempting the arrest stands in the position of a wrongdoer and may be resisted by the use of force, as in self-defense. S. v. Beal,
True, the right of a person to use force in resisting an illegal arrest is not unlimited. He may use only such force as reasonably appears to be necessary to prevent the unlawful restraint of his liberty. S. v. Allen, supra. See also S. v. Glenn,
This brings us to the pivоtal question presented by this appeal: Was the arrest of the defendant lawful or unlawful? Necessarily, the answer is dependent on whether the officers had the right to arrest the defendant without a warrant.
It has always been the general rule of the common law that ordinarily an arrest should not be made without warrant and that, subject to well-defined exceptions, an arrest without warrant is deemed unlawful. 4 Bl. Com. 289 et seq.; 6 C.J.S., Arrest, Sec. 5, p. 579; 5 O.J., p. 395. This foundation principle of the common law, designed and intended to protect the people against the abuses of arbitrary arrests, is of ancient origin. It derives from assurances of Magna Carta and harmonizes with the spirit of our constitutional precepts that the people should be secure in their persons. Nevertheless, to this general rule that no man should be taken into custody of the law without the sanction of a warrant or other judicial authority, the processes of the early English common law, in deference to the requirements of public security, worked out a number of exceptions. These exceptions related in the main to cases involving felonies and suspected felonies and to breaches of the peace. 4 Bl. Com. 292 et seq.; Arehbold’s Criminal P. and P., 29th Edition, p. 1013 et seq.; 4 Am. Jur., Arrest, Sections 22 to 38. Arrest without warrant in felony cases was justified at common law on the theory that dangerous criminals and persons charged with heinous offenses should be incarcerated with all possible haste in the interest of public safety. Whereas, the necessity for prompt on-the-spot action in suppressing and preventing disturbances of the public peace was the factor which justified arrest without warrant in misdemeanor cases involving breaches of the peace. In such cases, with the moving consideration being the immediate preservation of the public peace, rather than the due apprehension of the offender, the theory prevailed that unless the public peace was menaced, the delay incident to obtaining a warrant from a judicial officer would not prejudice the interests of the State in punishing the offender. See Carroll v. United States,
It is not necessary for us to deal at length with the refinements of the common law exceptions to the general rule against arrest without warrant. This is so for the reason that in this State the common law exceptions have been enacted or supplanted by statute, so that the power of arrest without warrant is now defined and limited entirely by legislative enactments. And the rule is that where the right and power of arrest without warrant is regulated by statute, an arrest without warrant except as authorized by statute is illegal. Sims v. Smith,
Our General Assembly of 1868-69 enacted a comprehensive, all-embracing set of rules prescribing and limiting the power of arrest without warrant. This Act, which may well be called our Code of Arrest Without Warrant, is Chapter 178, Subehapter 1, Session Laws of 1868-69. Its caption reads as follows: “When and by whom arrests may be made without process.” This statute clarifies, in some particulars modifies, and in other ways extends the pre-existing rules of the common law governing arrest without warrant, but in the main the Act is declaratory of the common law. The statute has been preserved and brought forward through successive codifications of our statute law. It is now codified in pertinent parts as G.S. 15-39, 15-40, .15-41, 15-43, 15-44, 15-45, and 15-46.
The basic rules governing arrest without warrant as precribed by the Act of 1869 may be distinguished as they relate to (1) felonies and to (2) misdemeanors. We discuss them in that order:
1. Felonies. — G.S. 15-41 (Subchapter 1, Section 3 of the Act of 1869) confers on peace officers the right to make arrests without process when the officer has “reasonable ground to believe” (1) a felony has been committed or a “dangerous wound” inflicted, (2) that a particular person is guilty, and (3) that such person may escape if not immediately arrested. Under this statute the significant features are that the felony or dangerous wound need not necessarily be committed or inflicted in the presence of the officer. Indeed, in order to justify the arrest it is not essential that any such serious offense be shown to have been actually committed. It is only necessary that the officer have reasonable ground to believe such offense has been committed. Moreover, in the instances enumerated an arresting officer is protected by the statute against the consequences of an erroneous arrest based on mistaken identity of the offender; all that is required is that the officer have reasonable ground to believe he is after
G.S. 15-40 (Subchapter 1, Section 6 of the Act of 1869) authorizes private persons to make arrests in certain felony cases. By the terms of this statute, when a felony actually has been committed in the presence of a private person, he may forthwith arrest without warrant (1) the person he knows to be guilty, or (2) the person he has reasonable ground to believe to be guilty. It is noted that this statute confers on a private citizen the right of arrest only when a felony is actually committed in his presence. Thus, if it turns out that the supposed offense is not a felony, then the arresting private citizen may not under the terms of the statute justify taking the suspect into custody. However, if a felony actually has been committed-in his presence, then the private person making the arrest has the protective benefits of the statute if he arrests either (1) the guilty person or (2) the person he has reasonable ground to believe is guilty of the offense, although perchance the person arrested may be innocent.
2. Misdemeanors. — G.S. 15-39 (Subchapter 1, Section 1 of the Act of 1869) deals with breaches of the peace. This statute confers on peace officers and private persons, on equal terms, the power of arrest without warrant in certain misdemeanor cases. The statute follows in the main the pre-existing principles of the common law. The language of the statute is as follows: “Every person present at any riot, rout, affray or other breach of the peace, shall endeavor to suppress and prevent the same, and, if necessary for that purpose, shall arrest the offenders.” It is significant to note that the statute — as did the rules of the common law it supplanted' — confers no power of arrest without warrant in misdemeanor cases, as such. The power of arrest without warrant is referable entirely to the question of breach of the peace. The test is not whether the offense is a misdemeanor, but, rather, whether an arrest is necessary in order to “suppress and prevent” a breach of the peace. The fact that an offense arrestable under this statute as a breach of the peace is also a misdemeanor, is purely coincidental. See Alexander v. Lindsey,
This brings us to an analysis of the intent and meaning of G.S. 15-39. Its language is plain and clear. An arrest without warrant may be made under the provisions of this statute by anyone when it is necessary to “suppress and prevent” a breach of the peace. This means that either a peace officer or a private person may arrest anyone who in his presence is (1) actually committing or (2) thrеatening to commit a breach of the peace. To justify an arrest on the ground of necessity in order to “suppress” a breach of the peace, the conduct of the person arrested must amount to an actual breach of the peace in the presence of the person
In testing the legality of an arrest without warrant by the provisions of G.S. 15-39, it must be kept in mind that not every misdemeanor is a breach of the peace. As to what constitutes a breach of the peace within the meaning of the rules which authorize an arrest without warrant in such cases, the better reasoned authorities emphasize the essentiality of showing as an element of the offense a disturbance of public order and tranquillity by act or conduct not merely amounting to unlawfulness but tending also to create public tumult and incite others to break the peace. We find this succinct statement in 4 Am. Jur., Arrest, Sec. 30:
“Generally speaking, any violation of public order or disturbance of the public tranquillity by any act or conduct tending to provoke or incite others to violence constitutes a breach of the peace, within the meaning of the rules which authorize an arrest without a warrant fоr a breach of the peace. . . .
“A breach of the peace may be occasioned by an affray or assault, by the use of profane and abusive language by one person toward another on a public street and in the presence of others, or by a person needlessly shouting and making a loud noise.”
The Restatement of Torts, Section 116, puts it this way: “A breach of the peace is a public offense done by violence or one causing or likely to cause an immediate disturbance of public order.” See also Prosser on Torts, p. 160; Ballentine’s Law Dictionary, p. 171; 22 Michigan Law Review, 541, 573.
In applying the statute at hand, G.S. 15-39, it is manifest that mere drunkenness unaccompanied by language or conduct which creates, or is reasonably calculated to create, public excitement and disorder amounting to a breach of the peace, will not justify arrest without warrant under the statute. See Yarbrough v. Commonwealth,
The State, urging that a peace officer may arrest without warrant either when (1) a misdemeanor is actually committed in his presence or (2) when he has reasonable cause to believe a misdemeanor is being committed in his presence, cites some twenty or more cases from other jurisdictions, principally those listed in the footnotes supporting one of the diverse views given in the text statement appearing in 6 C.J.S., Arrest, Sec. 6, p. 595. All the cited cases have been examined. They are distinguishable. In the light of the plain meaning of G.S. 15-39, none of the cited cases is considered authoritative or controlling with us. The cases fall generally into four classifications: (1) decisions controlled by statutes which expressly confer on peace officers broader powers of arrest in misdemeanor cases than are conferred by either the common law or our statute (G.S. 15-39) ; (2) decisions not controlled by statutes but which, nevertheless, are based on cases controlled by statutes conferring broader powers of arrest in misdemeanor cases than are conferred by either the common law or our statute; (3) decisions based upon the erroneous premise that under the common law any offense, felony or misdemeanor, committed in the presence of a peace officer is arrestable without warrant; and (4) decisions based on an erroneous declaration of the common law, as set out in the third classification, and which also embrace the further erroneous concept that under the common law an arrest without warrant may be justified in any case where the officer has probable cause or reasonable ground to believe a misdemeanor is being committed in his presence. Some of the cited decisions are premised on an erroneous interpretation of Carroll v. United States, supra (
While the Act of 1868-69, which supplanted the common law rules of arrest without warrant, remains unchanged in basic principles and as now codified in its various parts — G.S. 15-39 through 15-46 — furnishes the fundamental rules governing arrest without warrant in this State, nevertheless, since the original enactment of this code of arrest without warrant, the Legislature has seen fit from time to time to extend the power of arrest without warrant to cover numerous specific situations and types of cases, some of State-wide application, others of local nature.
Chief among the local implementing statutes- аre numerous municipal charter provisions which confer on peace officers authority to arrest on sight without process any person found violating any municipal ordinance, or in some instances committing any misdemeanor, regardless of whether the offense does or does not amount to a breach of the peace. See Coates, Law of Arrest in North Carolina, 15 N. C. Law Review, 101, where numerous examples of such charter provisions are cited. See also Alexander v. Lindsey, supra.
It is also noted that a number of implementing State-wide statutes have been enacted from time to time conferring on peace officers the power of arrest without warrant in cases not amounting to a breach of the peace. For example, G.S. 20-183 confers on law -enforcement officers power to stop any motor vehicle for the purpose of determining whether it is being operated in violation of any provision of the Motor Vehicle Act, and empowers such officers “to arrest on sight” any person found violating any provision of the Act. Also, when a peace officer discovers a person in the act of transporting intoxicating liquor in any vehicle in violation of law, G.S. 18-6 makes it the officer’s duty to seize the liquor, take possession of the vehicle, and arrest the person in charge- thereof. G.S. 113-91 (d) confers- on game protectors the power to arrest on the spot for violations of game laws committed in their presence. Forest wardens are given similar powers under G.S. 113-49 with respect to violations of the- forestry laws. For a list of other North Carolina statutes giving power of arrest without warrant in misdemeanor cases not amounting to a breach of peace, see Machen, Law of Arrest (publication оf the Institute of Gov'ernment, University of North Carolina, 1950), p. 46.
We have examined the charter of the Town of Dallas, Chapter 351, Private Laws of 1913. It nowhere purports to confer on the police officers of the town authority to make arrests in misdemeanor cases without warrants in cases not amounting to a bre'ach of the peace. Indeed, no
In the case аt hand the evidence on which the State relies fails to show prima, facie- that the defendant’s conduct at the time of the arrest amounted either to an actual or threatened breach of the peace within the intent and meaning of G.S. 15-39. Hence, the arrest must be treated as illegal. This- being so, the State failed to make out a prima facie case of resisting arrest.
Nor does the evidence in any aspect show that the defendant used excessive force in resisting the illegal arrest. Therefore, the defendant’s motion for judgment as of nonsuit, both as to the charge of resisting arrest and assault, should have been allowed, and it is so ordered. The judgment below will be vacated and reversed and the motion for nonsuit sustained.
We have not overlooked the decision of this Court in S. v. Freeman,
Similarly, we treat as unauthoritative the decision in S. v. McNinch,
Where there are conflicting decisions the doctrine of stare decisis has no application. Patterson v. McCormick,
It is to be kept in mind that the decision in this case is no attempt to provide a code for arrest without warrant, nor do we attempt to close the hiatuses in present arrest procedure. Such matters are not within the province of the Court. Our intent here is to eliminate or minimize the conflicts that have developed in the construction and application of present statutes, to the end that peace officers may know with reasonable exactitude their rights and duties in respect to making arrests without warrant.
In the situation thus presented it is for the Legislature, rather than the Court, to determine whether it has or has not kept pace with the exigencies of the times in its process of conferring on various peace officers from time to time by piecemeal enactments broadened powers of arrest without warrant. In short, since this branch of the law has come to be prescribed and regulated wholly by statute, it is for the Legislature to ponder and decide whether the present statutes meet the minimum requirements of public safety and security, or whether further extensions are necessary; for example, by the еnactment of a single State-wide statute authorizing
For constructive criticisms of the present law of arrest see Machen, The Law of Arrest, p. 76 et seq.; 15 N. C. Law Review, p. 101, 103 et seq.; 29 Michigan Law Review, pp. 452 and 453; 28 Virginia Law Review, pp. 331, 332, and 343 et seq. See also 22 Michigan Law Review, p. 541; 49 Harvard Law Review, p. 566.
The judgment below is
Reversed.
Dissenting Opinion
dissenting. The State’s evidence tends to show the following facts. J ess Broome, a police officer of the Town of Dallas dressed in his uniform with badge and pistol, saw the defendant around 9 :30 or 10 p.m. at the Dallas Grill, a public restaurant. The defendant was staggering around drunk, and cursed Broome and the brother of the Chief of Police of Dallas, who was talking to Broome. Broome asked the defendant to hush cursing. The defendant replied if Broome got out of his car, he, the defendant, would cut his head off, and for Broome “to call the County” — manifestly referring to the County Law Enforcement Officers. Broome did not arrest the defendant then, but “called the County” for help. Broome then went to the courthouse, called the Dallas Chief of Police A. R. Eidson, went to Eidson’s home, picked him up, came back up town, and found the defendant at a service station, a public place. Chief Eidson had on a white shirt and was in civilian clothes, but had his badge on his shirt and a gun. The officers had no warrant. The officers got out of the car, and Chief Eidson told the defendant he was under arrest for being drunk. Chief Eidson took hold of his lеft arm, Broome his right arm, and started to the car. The defendant scuffled around behind the car, and struck Chief Eidson on the head knocking his hat off. He struck at Chief Eidson “a whole lot.” Broome hit the defendant a glancing blow on the head with a blackjack. The defendant told Chief Eidson to shoot him. [John Puett, a witness for the defendant, testified the defendant raised his shirt, and said to Chief Eidson “You yellow bellied s.o.b., let’s see you put a slug in it.”) The officers then seized the defendant, put him in their car and carried him to the county jail. The “scuffle or pulling” between the officers and the defendant lasted about
The defendant, and one of his witnesses, testified that Chief Eidson told the defendant he was arresting- him for being drunk and disorderly. The defendant testified on cross-examination that one time he went before the Town Board to try to make Jess Broome pay him a debt, and that he had talked to three members of the Board about firing Chief Eidson. The defendant further admitted on cross-examination that he had served a prison sentence for assault with a deadly weapon with intent to kill; had been convicted of speeding and reckless driving; of violating the prohibition law; of carrying a concealed weapon; and probably convicted of an affray. The defendant testified that he knew Chief Eidson was a police officer of the Town of Dallas when he was arrested.
Whether cursing a police officer or addressing scurrilous words to him constitute a breach of the peace for which an arrest may be made without a warrant depends upon the circumstances, involved. Mere impudence will not suffice. Anno.
The State’s evidеnce shows that the defendant cursed Broome in the presence of others, while Broome was sitting in his car on a public street in the Town of Dallas, threatened immediate force to Broome’s person if he got out of his car, and then and there cursed Eidson, brother of the town’s Chief of Police. It is common knowledge such conduct on a public street in the presence of others provokes and incites to immediate violence. If that evidence is accepted as true by the jury, it shows with apodeictic certainty, according to the authorities cited in the majority opinion, that the defendant committed a breach of the peace in Broome’s actual presence, for which offense it was Broome’s duty to arrest the defendant promptly without a warrant. G. S. N. C. 15-39. A policeman has the same authority to make arrests within the town limits as is vested by law in a sheriff. G. S. N. 0. 160-21.
Did Broome’s delay in arresting the defendant make the arrest illegal ? In my opinion, the answer is No, considering the evidence in the light most favorable to the State, as is requisite on a motion for nonsuit.
It is said in 4 Am. Jur., Arrest, sec. 67: “In making an arrest without a warrant for breach of the peace or a misdemeanor, an officer must act promptly at the time of the offense***In order to justify a delay, there should be a continued attempt on the part of the officer or person apprehending the offender to make the arrest; he cannot deffiy for any purpose which is foreign to the accomplishment of the arrest. If an officer sees an affray and calls other officers to his assistance, the fact that the actual arrest is made after the affray is over does not make the arrest without a warrant illegal.***The shortness of the interval does not
In S. v. McClure,
It is a fair inference from the evidence that Broome knew the defendant had hard feelings against him. The defendant’s admissions of his criminal record, on cross-examination, did not enlarge Broome’s authоrity, and would not justify an illegal arrest. Larson v. Feeney,
The defendant knew that Chief Eidson and Broome were police officers of the Town of Dallas. The fact that Chief Eidson, and not Broome, told the defendant he was under arrest is immaterial. In reality Broome, with Eidson’s aid, made the arrest. Though Eidson said, according to the State’s evidence, he was arresting the defendant for being drunk — the defendant testified Eidson said he was arresting him for being drunk and disorderly — that does not erase the defendant’s breach of the peace, if the
“If tbe official authority of an officer is known to tbe person who is being arrested, it is not essential that be announce it or make known bis intention or purpose before actually apprehending tbe offender.” 4 Am. Jur., Arrest, Sec. 65.
To resist an officer in tbe lawful discharge of bis duties is made a crime at common law and in all jurisdictions by statute. 39 Am. Jur., Obstructing Justice, Sec. 8; 67 O. J. S., Obstructing Justice, Sec. 5. In Edmund Burke’s words “obedience to law is what makes government.”
In my opinion tbe trial court correctly overruled tbe motions for non-suit, and I so vote.
I think there are prejudicial errors in tbe charge for wbicb a new trial should be awarded.
Tbe defendant assigns as error that tbe Court several times in its charge said tbe officers would be justified in making tbe arrest if in tbe officer’s own judgment and opinion tbe defendant was guilty, when tbe Court should have charged -that it was for tbe jury to say whether or not tbe officer bad reasonable grounds to warrant tbe arrest. Tbe defendant supports bis argument by what this Court said in S. v. McNinch,
Tbe majority opinion states: “We think a breach of tbe peace is threatened within tbe meaning of tbe statute (G.S.N.C. 15-39) if the offending person’s conduct under tbe surrounding facts and circumstances is such as reasonably justifies a belief that tbe perpetration of an offense amounting to a breach of tbe peace is imminent,” citing authorities from other jurisdictions. In my opinion that is a restatement, only slightly
The majority opinion also says: “to justify an arrest on the ground of necessity in order to 'suppress’ a breach of the peace, the conduct of the party arrested must amount to an actual breach of the peace in the presence of the officer making the arrest”; and also states: “a person making an arrest under the authority of G.S. 15-39 must determine, at his peril, preliminary to proceeding without warrant, whether an offense arrestable under the statute is being committed,” (citing in support of the last quoted excerpt S. v. Hunter,
To say that an officer making an arrest without a warrant under the provisions of G.S.N.C. 15-39 for a breach of the peace being committed in his presence must determine at his peril before making an arrest that a breach of the peace is actually being committed, and to say that if a breach of the peace is threatened, he can act upon probable cause is to my mind an unsound distinction. Such a distinction would in one case make the officer an insurer that an offense had been committed, and in another permit him to act upon probable cause.
The excerpt quoted above from S. v. McNinch, supra, is sound law, is followed by us in later decisions, and is apparently supported by the majority of courts elsewhere “dealing with the exact question.”
In Peru v. U. S., 4 Fed. (2d) 881, it is said: “A mere suspicion is not sufficient upon which to base an arrest for a misdemeanor without a warrant. U. S. v. Slusser (D.C.),
This decision is criticised in 75 Penn. Law Review 485 et seq. as follows : “It is difficult to see how the Carroll case can be taken as authority
An article entitled “Arrest without Warrant” in the Wisconsin Law Review (1939) pp. 335, 387 says: “Some jurisdictions hold that the officer must actually know an offense is being committed and would hold him liable in such circumstances. The majority of jurisdictions, however, hold that it is not essential that the officer arresting without a warrant absolutely know that an offense is being committed in his presence, and rule that a lona ;fide belief on his part that it is being committed is enough.”
In my opinion t-he fact that some of the courts were construing statutes which authorize peace officers to arrest without a warrant for all misdemeanors committed in their presence, and in S. v. McNinch, supra, we were interpreting a statute restricted to riots, routs, affrays or other breach of the peace makes no difference. The rationale of the decisions is identical.
I think that these words in S. v. Hunter, supra, (quoted in S. v. McAfee, supra, and referred to in S. v. Rollins, supra) : “but policemen of Asheville must determine, at their peril, preliminary to proceeding without warrant, whether a valid ordinance has been violated within or out of their view,” is in direct conflict with what we had previously said in S. v. McNinch, supra, and what we have repeatedly said later in Perry v. Hurdle,
Unless our peace officers in arresting without a warrant under G.S.N.C. 15-39 can act upon reasonable grounds or probable cause, as set forth in S. v. McNinch, supra, and subsequent decisions of this Court, a crippling blow will be inflicted upon law enforcement in this State. If officers, who' in lawfully making arrests are “rightfully the aggressors',” are not given reasonable protection in the discharge of their duties, society cannot
For prejudicial errors in the charge I cast my vote for a new trial.
Concurrence Opinion
concurring: "While the majority opinion deals only with the facts as to what occurred at Brewer’s Service Station, the previous conduct of the defendant at the Dallas Grill, in my opinion, did not justify Chief Eidson in arresting him without a warrant.
When all the evidence adduced in the trial below is considered, it clearly appears that bad blood existed between Broome and the defendant. The evidence most favorable to the State is Broome’s testimony to the effect that he saw the defendant at the Dallas Grill; that “he was staggering around”; that the defendant cursed him and Arnold Eidson, a brother of the Chief of Police of the town оf Dallas. The evidence also discloses that Arnold Eidson and officer Broome were in Broome’s ear at the time the purported cursing took place. There is in the record, however, no evidence tending to show that the defendant was loud and boisterous or that any person or persons other than Broome and Eidson heard anything he said. Moreover, the warrant upon which the defendant was tried, which was signed by Broome and Chief Eidson, as complainants, does not charge the defendant with disorderly conduct, but merely of appearing “in public under the influence of intoxicating liquor.”
Furthermore, it is disclosed by the defendant’s evidence and not denied by the State, that after the defendant left the Dallas Grill he went to Brewer’s Service Station and was there “about 35 or 40 minutes” before the officers attempted to arrest him. And there is no evidence tending to show any misconduct on thе part of the defendant while he was at the filling station prior to the arrival of the officers. I realize that neither the defendant’s evidence nor the result of the trial on the charge of being drunk is controlling on the legal question presented for review, nevertheless it is significant that a number of the leading citizens of the town of Dallas talked with the defendant while he was at the filling station and were there when he was arrested, and these citizens testified unequivocally in the trial below that the defendant was not drunk at the time of his arrest. The jury believed them and found the defendant not guilty of the charge.
If it be conceded that the facts as related by Broome are true (which were vigorously denied by the defendant), in view of the personal animosity that existed between Broome and the defendant, I have considerable dpubt as to whether the conversation or controversy between Broome and the defendant which occurred at the Dallas Grill, constituted a breach of the peace. G.S. 15-39; and the authorities cited on this point in the majority opinion. Hence, I think that on the record before us, the majority opinion has construed the law aright.