State v. Mink, 18 N.C. App. 346 (1973)

May 23, 1973 · North Carolina Court of Appeals · No. 7323SC280

18 N.C. App. 346

STATE OF NORTH CAROLINA v. TONY MINK

No. 7323SC280

(Filed 23 May 1973)

Arrest and Bail § 6; Assault and Battery § 11— assault on public officer — ■ .resisting arrest — warrant

. ; Warrant is insufficient to charge the offense of assault on a public officer, G.S. 14-33(c)(4), or the offense of resisting an officer, G.S. 14-223, where it fails to allege the duty of his office that the public officer was discharging or attempting to discharge.

Appeal by defendant from Kivett, Judge, 2 October 1972 Session of Superior Court held in Wilkes County.

Defendant was charged iii a warrant reading as follows:

“The undersigned, Bobby McCann, being duly sworn,' complains and says that at and in the County named above and on or about the 4th day of August, 1972, the defendant named above did unlawfully, wilfully, and feloniously assault an officer of the law Bobby McCann while he was attempting to discharge a duty of his office.

' “The offense charged here was committed against the peace and dignity of the State and in violation of law G.S. 1433 (c)(4)”

Defendant was convicted and sentenced to a term of ten days in the county jail.

Attorney General Morgan, by Assistant Attorney General Johnson, for the State. ■

Porter, Conner & Winslow, by Kurt B. Conner, for the defendant.

BROCK, Judge.

The warrant upon which defendant was tried in the District Court and upon which he was tried in the Superior Court is insufficient to charge an offense. It fails to allege the duty of his office that the public officer was discharging or attempting to discharge. For this reason it fails to allege an offense under either G.S. 14-33 (c) (4) or G.S. 14-223. See State v. Wiggs, 269 N.C. 507, 512, 153 S.E. 2d 84, 88; State v. Smith, 262 N.C. 472, 474, 137 S.E. 2d 819, 820.

Judgment arrested.

Judges Morris and Parker concur.