State v. Tripp , 9 N.C. App. 518 ( 1970 )

176 S.E.2d 892 (1970)

STATE of North Carolina
v.
Billy Ashley TRIPP.

No. 7010SC581.

Court of Appeals of North Carolina.

October 21, 1970.

Atty. Gen. Robert Morgan, by Asst. Atty. Gen. Howard P. Satisky, for the State.

William T. McCuiston, and Michael A. Ashburn, Raleigh, for defendant appellant.

BRITT, Judge.

Defendant first assigns as error the failure of the court to sustain his motion for non-suit interposed at the close of all of the evidence. We hold that the evidence was sufficient to survive the motion for non-suit and the assignment of error is overruled.

Defendant assigns as error the following instruction of the trial judge to the jury: "The defendant in this case had no right and no duty to arrest anyone or to take anyone to the police. He was not acting, if he did act, in any proper exercise or lawful authority". This assignment of error is sustained and entitles defendant to a new trial.

Defendant contends that under the evidence introduced by him he had a right and duty to arrest Freeman and was attempting to carry out this right and duty when he fired his pistol at Freeman's automobile. To properly consider this contention, it is necessary to review defendant's evidence as it related to the shooting and events immediately prior thereto. This evidence tended to show:

With defendant lying on the floor of the back seat, Mrs. Tripp was driving his automobile north on Person Street and stopped for a red traffic signal at the intersection of Davie Street. Freeman was then parked on Person Street, facing north, some four or five car lengths south of the intersection. When the light turned green Mrs. Tripp turned left on Davie Street; Freeman drove from his parked position north on Person to Davie where he made a left turn, drove up beside Mrs. Tripp on her left and turned sharply to the right, causing Mrs. Tripp to turn to the right, run up on the curb and stop at a point about halfway between Person and Blount Streets. Freeman's car was then stopped at a forty-five degree angle with his right front fender very close to Mrs. Tripp's door; Mrs. Tripp was crying. Defendant jumped out of the right side of his car and as he ran around the front of his car, Freeman backed away from defendant's car and started forward on Davie Street. Defendant ordered Freeman to stop but instead of stopping Freeman tried to run over defendant who got out of his way and then fired a .22 calibre pistol at Freeman's car "trying to bust a tire or gas tank so I could * * * stop his car and take him to the police station". Freeman proceeded on to Blount Street where he made a left turn and wrecked his automobile before getting to the next intersection.

With respect to the defendant's original plan to catch Freeman and carry him to the police, we agree with the trial judge that the defendant had no right and no duty to arrest anyone. However, when the events developed as above testified to by the defendant and his witnesses, a different situation arose.

G.S. § 15-39 provides as follows:

"Persons present may arrest for breach of peace.—Every person present at any riot, rout, affray or other breach of the peace, shall endeavor to suppress and prevent the same, and, if necessary for that purpose, shall arrest the offenders."

In State v. Mobley, 240 N.C. 476, 83 S.E.2d 100, in an opinion by Johnson, J., our Supreme Court in interpreting this statute said:

"This statute confers on peace officers and private persons, on equal terms, the power of arrest without warrant in certain misdemeanor cases. The statute follows in the main the pre-existing principles of the common law. (Statute quoted) * * * the power of arrest without warrant is referable entirely to the question of breach of the peace. The test is not whether the offense is a misdemeanor, but, rather, whether an arrest is necessary in order to `suppress and prevent' a breach of the peace. * * * It (the statute) language is plain and clear. An arrest without warrant may be made under the provisions of this statute by anyone when it is necessary to `suppress and prevent' a breach of the peace. This means that either a peace officer or a private person may arrest anyone who in this presence is (1) actually committing or (2) threatening to commit a breach of the peace. * * * [W]e think a breach of the peace is threatened within the meaning of the statute if the offending person's conduct under the surrounding facts and circumstances is such as reasonably justifies a belief that the perpetration of an offense amounting to a breach of the peace is imminent. (Numerous authorities cited)".

In State v. Lanier, 71 N.C. 288 (1874) our Supreme Court, in passing upon the legality of an arrest by a police officer under this statute, found it appropriate to determine if the facts in that case constituted a breach of the peace. The facts were that the defendant rode a horse through the corridor of the court house when court was not in session and very few people were in the court house. We quote from the opinion:

"* * * [W]e think it may be conceded that the driving or riding without arms through a court house or crowded street at such a rate or in such a manner as to endanger safety of the inhabitants amounts to a breach of the peace and is an indictable offence at common law. (citation)".

If Freeman drove his car on Davie Street as stated by defense witnesses, forcing Mrs. Tripp to drive on the curb and stop, and stopping with his (Freeman's) right front fender close to her door, we think he was guilty of a breach of the peace justifying his arrest by the defendant or anyone else present at the time.

The question then arises, does a person have the right to complete a citizen's arrest after the breach of the peace has terminated? It has been held that a private person's right to arrest for an affray or breach of the peace exists while it is continuing or immediately after it has been committed. 5 Am.Jur.2d, Arrest, § 35, p. 725; Ogulin v. Jeffries, 121 Cal. App. 2d 211, 263 P.2d 75. If a person's right to arrest for a breach of the peace committed in his presence terminated immediately when the breach of the peace ceased, the right of arrest would be completely negated.

We next inquire as to the amount of force a person may use in making a citizen's arrest. Our Supreme Court has held that a police officer may use reasonable and necessary force in making an arrest, and whether the force used in any particular case is reasonable and necessary or excessive and unnecessary is ordinarily a question for the jury. State v. Eubanks, 209 N.C. 758, 184 S.E. 839. We think the same rule applies to a private citizen making or attempting to make a lawful arrest.

Freeman, as a witness for the State, denied writing the notes to Mrs. Tripp and denied that he forced her to stop on Davie Street. This being true, it was for the jury to reconcile the conflict in the testimony and to determine, upon proper instructions from the trial judge, if the defendant was properly exercising a right of arrest under G.S. § 15-39 and if he was using no more force than was reasonably necessary to accomplish that purpose.

We realize that a citizen's arrest or attempted arrest can create a dangerous situation and that one who attempts it does so at his peril. However, G.S. § 15-39 is a law of this State and citizens are entitled to rely on it and our courts are obligated to apply and interpret it until the General Assembly sees fit to amend or repeal.

We do not deem it necessary to discuss the other assignments of error brought forward and argued in defendant's brief as they may not arise on a re-trial of this case.

For the reasons hereinbefore stated, the defendant is awarded a

NEW TRIAL.

CAMPBELL and VAUGHN, JJ., concur.