Opinion · Nclaw North Carolina
STATE v. SHAW, 25 N.C. 20 (1842)
25 N.C. 20
- Type
- Opinion
- Court
- Nclaw North Carolina
- Jurisdiction
- Nclaw
- Date
- 1842-01-01
- Topic
- general
STATE v. SHAW, 25 N.C. 20 (1842) STATE v. MALCOLM SHAW.Supreme Court of North Carolina (December Term, 1842.) Where one is indicted for refusing to assist an officer in securing a person whom he has arrested, it is not sufficient to State in the indictment that this was an arrest by lawful authority, the authority to arrest must be set forth in the indictment. APPEAL from Dick, J., at Fall Term, 1842, of ANSON. The defendant was tried at that term upon the following indictment: STATE OF NORTH CAROLINA — Anson County — ss.
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STATEv. SHAW,25 N.C. 20(1842)
STATEv. MALCOLM SHAW.
Supreme Court of North Carolina
(December Term, 1842.)
The defendant was tried at that term upon the following indictment:
STATE OF NORTH CAROLINA — Anson County —ss.
Superior Court of Law, Fall Term, 1841.
The jurors for the State, upon their oath, present that one William Bailey, being arrested by one William H. Gullidge, a deputy sheriff in and for said County of Anson, by lawful authority, on 10 April, 1841, the said William Bailey resisted the said officer; and the said William H. Gullidge, deputy sheriff as aforesaid, summoned Malcolm Shaw and Jacob Lockhart to assist in taking in custody the said William Bailey, which said summons of the said William H. Gullidge the said Malcolm Shaw and the said Jacob Lockhart then and there utterly disregarded and refused to obey the same, in contempt of the law, to the evil example of all others in like case offending, and against the peace and dignity of the State.
And the jurors aforesaid, upon their oath aforesaid, do further present that Elisha S. Hubbard, an acting justice of the peace in and for the County of Anson aforesaid, on the day and year aforesaid, at and in the County of Anson aforesaid, being in the discharge of his official duty as a justice of the peace, then and there commanded one William H. Gullidge, a deputy sheriff in and for the County of Anson aforesaid, to arrest one William Bailey for disorderly conduct (21) then and there committed in the presence of the said magistrate, and then and there commanded the said Malcolm Shaw and the said Jacob Lockhart to assist the said deputy sheriff then and there in the said arrest, and that the said Malcolm Shaw and the said Jacob Lockhart, in contempt of the law, and in utter disregard of the said command, of the said Elisha S. Hubbard, justice of the peace as aforesaid, then and there utterly refused and neglected to obey the said command, to the evil example of all others in like cases offending, and against the peace and dignity of the State.
On the trial, it appeared in evidence, that the said William Bailey was intoxicated, and swearing and making a loud noise, and threatening to beat some person, in one of the most populous streets in Wadesboro — that he was requested by a magistrate to desist and go home, which he refused to do, and continued swearing and making a loud noisePage 23in the street; whereupon the magistrate verbally ordered a deputy sheriff, then present (W. H. Gullidge), to take said Bailey into custody and carry him before a magistrate, and Bailey resisted the officer. The deputy sheriff then summoned the defendant and Lockhart, who were present, to assist him in arresting the said Bailey, and carrying him before a magistrate, which they refused to do.
The jury, under the charge of the court, found the defendant Shaw guilty, and judgment having been pronounced against him in pursuance of the verdict, he appealed to the Supreme Court.
No counsel for the defendant.
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 wasby 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 arelay 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.
Thesecondcount 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 wasnoevidence in the cause that the magistrate ever ordered the defendant to aid the deputy sheriff in making the arrest of Bailey.Page 24It 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 tohiscommand.
PER CURIAM. New trial.Cited: S. v. Jones,78 N.C. 422;S. v. Baldwin,80 N.C. 393.
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