State v. Shirlen

269 N.C. 695 | N.C. | 1967

PER Curiam.

Defendant brings forward only the assignment of error based upon his exceptions to the overruling of his motions for nonsuit. He contends that his conduct in the presence of the officer did not amount to a breach of the peace; that Ensminger, therefore, had no right to arrest him without a warrant; and that he had the legal right to resist arrest and defend himself. On this record, it is not necessary to decide whether defendant’s conduct amounted to a breach of the peace, the question largely debated in the brief. Viewing the evidence in the light most favorable to the State, as we are required to do in passing upon a motion for nonsuit, it is sufficient to establish that defendant was drunk in a public place, a violation of G.S. 14-335(10). The officer, therefore, had the right to arrest defendant without a warrant. G.S. 15-41(1). In addition, it is noted that at the time defendant angrily grabbed Ensminger by the arm, the officer himself had not touched defendant. He had made no effort to consummate the arrest by manually seizing defendant, who had not submitted to his authority. Stancill v. Underwood, 188 N.C. 475, 124 S.E. 845; 6 C.J.S., Arrest § 1(b) (1937). Defendant’s attack upon the officer, therefore, was offensive rather than defensive. The judgment of nonsuit was properly overruled.

No error.