State v. Scott, 241 N.C. 178 (1954)

Nov. 24, 1954 · Supreme Court of North Carolina

241 N.C. 178

STATE v. ALFORD LINDOR SCOTT.

(Filed 24 November, 1954.)

1. Indictment § 9—

The allegations in a bill of indictment must particularize the crime charged and be sufficiently explicit to protect the defendant against a subsequent prosecution for the same offense.

S. Indictment § 13—

While a motion to quash is the more appropriate method of raising the question whether the bill of indictment charges the commission of any criminal offense, motion in arrest of judgment may be used to the same end.

3. Arrest § 3—

An indictment charging that defendant did unlawfully “resist, delay and obstruct a public officer in discharge and attempting to discharge the duty of his office . . .” is insufficient to charge the offense of resisting arrest. G.S. 14-223.

Appeal by defendant from Stevens, J., June Term 1954, Waee. Beversed.

Criminal prosecution under two bills of indictment in which it is charged that defendant did unlawfully (1) “operate an automobile upon the public highways of Wake County while then and there being under the influence of intoxicating liquors . . .” and (2) “resist, delay and obstruct a public officer in discharge and attempting to discharge the duty of his office . .

In the court below the jury returned a verdict of not guilty under the first bill of indictment and a verdict of guilty under the second bill charging resisting an officer in violation of Gr.S. 14-223. Defendant in apt time demurred to the evidence under Gr.S. 15-173. After verdict he moved in arrest of judgment, which motion was denied. The court pronounced judgment, and defendant excepted and appealed.

Attorney-General McMullan and Assistant Attorney-General Moody for the State.

Pittman & Staton and Edwin B. Hatch, Jr., for defendant appellant.

Barnhill, C. J.

The bill of indictment fails to meet the test set forth in S. v. Sumner, 232 N.C. 386, 61 S.E. 2d 84, and other decisions of like import. Tbe allegations in a bill of indictment must particularize tbe crime charged and be sufficiently explicit to protect tbe defendant against a subsequent prosecution for tbe same offense. Tbis tbe bill of indictment appearing in tbis record fails to do. S. v. Morgan, 226 N.C. 414, 38 S.E. 2d 166; S. v. Cochran, 230 N.C. 523, 53 S.E. 2d 663.

While a motion to quash is tbe most appropriate method of raising tbe question whether tbe bill of indictment charges tbe commission of any criminal offense, motion in arrest of judgment may be used to tbe same end. S. v. Cochran, supra.

S. v. Raynor, 235 N.C. 184, 69 S.E. 2d 155, and S. v. Thorne, 238 N.C. 392, 78 S.E. 2d 140, are directly in point. What is said in tbe opinions in those cases is controlling here.

Tbe defendant is entitled to bis discharge. To that end tbe judgment entered in the court below is arrested.

Reversed.