State v. Jenkins

77 S.E.2d 796 (1953)

238 N.C. 396

STATE v. JENKINS.

No. 77b.

Supreme Court of North Carolina.

October 14, 1953.

*797 Harry McMullan, Atty. Gen., and Claude L. Love, Asst. Atty. Gen., for the State.

W. O. Rosser, Whitaker, for defendant, appellant.

ERVIN, Justice.

The Constitution of North Carolina guarantees to the accused in all criminal prosecutions the right to be informed of the accusation against him. N.C.Const. art. I, Sec. 11.

This constitutional guaranty is, in essence, an embodiment of the common-law rule requiring the charge against the accused to be set out in the indictment or warrant with sufficient certainty to identify the offense with which he is sought to be charged, protect him from being twice put in jeopardy for the same offense, enable him to prepare for trial, and enable the court to proceed to judgment according to law in case of conviction. State v. Green, 151 N.C. 729, 66 S.E. 564; State v. Lunsford, 150 N.C. 862, 64 S.E. 765; State v. Harris, 145 N.C. 456, 59 S.E. 115; 42 C.J.S., Indictments and Informations, § 90, p. 957.

The warrant in the instant case falls short of these requirements. The allegation that the defendant resisted arrest, standing alone, does not charge an offense known to the law. State v. Raynor, 235 N.C. 184, 69 S.E.2d 155. There is no validity in the contention of the State that this allegation and the additional allegation that the defendant interfered "with an officer while legally performing the duties of his office" suffice to impute to defendant a violation of G.S. § 14-223, which provides that "if any person shall willfully and unlawfully resist, delay or obstruct a public officer in discharging or attempting to discharge a duty of his office, he shall be guilty of a misdemeanor." These allegations do not describe the official character of the person alleged to have been resisted with sufficient certainty to show that he was a public officer within the purview of the statute. State v. Pickett, 118 N.C. 1231, 24 S.E. 350; 67 C.J.S., Obstructing Justice, § 13, p. 58. We refrain from deciding whether the warrant is fatally defective in other respects.

The legal standing of the State is not improved an iota by the order granting the solicitor permission to amend the warrant so as "to charge the violation in the words of the statute, to-wit, G.S. § 14-223." The amendment was not actually made. State v. Moore, 220 N.C. 535, 17 S.E.2d 660. Inasmuch as neither the motion nor the order stated the contemplated language of the proposed amendment, the order allowing the motion to amend was not self-executing. See in this connection: State v. Yellowday, 152 N.C. 793, 67 S.E. 480, and 42 C.J.S., Indictments and Informations, § 237 P. 1247.

Since the warrant does not charge a criminal offense, the judgment must be arrested.

Judgment arrested.