State v. Summrell , 13 N.C. App. 1 ( 1971 )

HEDRICK, Judge.

In the cases charging resisting arrest and assault on an officer, the defendant assigns as error the court’s denial of his motions to require the solicitor to elect, to quash the warrants, and to arrest the judgments. The defendant’s motion made before the introduction of any evidence to require the solicitor to elect whether he would prosecute the defendant on the charge of resisting arrest or assault on an officer was properly denied. State v. Stephens, 170 N.C. 745, 87 S.E. 131 (1915) ; State v. Smith, 201 N.C. 494, 160 S.E. 577 (1931) ; State v. Hall, 214 N.C. 639, 200 S.E. 2d 375 (1939). A motion to quash challenges the sufficiency of a bill of indictment or warrant. 4 Strong, N.C. Index 2d, Indictment and Warrant, § 14, pp. 359-60. “ ‘A motion in arrest of judgment is one made after verdict and to prevent entry of judgment, and is based upon the insufficiency of the indictment or some other fatal defect appearing on the face of the record.’ State v. McCollum, 216 N.C. 737, 6 S.E. 2d 503.” State v. Kirby, 276 N.C. 123, 171 S.E. 2d 416 (1970). The defendant was charged in separate warrants with resisting arrest, in violation of G.S. 14-223, and with assault on an officer, in violation of G.S. 14-33 (b) (6). The warrants charge the separate offenses in the language of the statute, no defect appears on the face of the warrants, and the face of the record proper discloses no fatal defect. The court properly denied the defendant’s motions.

Defendant’s second contention is that the court erred in failing to quash the warrant charging disorderly conduct. He contends that G.S. 14-288.4 (2) is “unconstitutionally vague and overbroad.” The pertinent portions of G.S. 14-288.4 are as follows:

“Disorderly conduct is a public disturbance caused by any person who:

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(2) Makes any offensively coarse utterance, gesture, or display or uses abusive language, in such a manner as to alarm or disturb any person present or as to provoke a breach of the peace.”

“It is settled law that a statute may be void for vagueness and uncertainty. . . . Even so, impossible standards of statutory clarity are not required by the constitution. When the language of a statute provides an adequate warning as to the conduct it condemns and prescribes boundaries sufficiently distinct for judges and juries to interpret and administer it uniformly, constitutional requirements are fully met. United States v. Petrillo, 332 U.S. 1, 91 L. ed. 1877, 67 S.Ct. 1538.” In re Burrus, 275 N.C. 517, 169 S.E. 2d 879 (1969) ; State v. Sparrow, 276 N.C. 499, 173 S.E. 2d 897 (1970).

The statute provides an adequate warning of the conduct condemned and is sufficiently distinct for judges and juries to apply uniformly, and the court did not commit error by denying defendant’s motion to quash the warrant which charged the offense in the language of the statute. This assignment of error is overruled.

By his third assignment of error, the defendant contends that the court committed error by denying his motion “to see any and all exculpatory statements which the state had.” “Pursuant to G.S. 15-155.4, the solicitor in a criminal trial is obligated to furnish certain specifically identified exhibits to the defendant to better enable him to prepare his defense. State v. Macon, 276 N.C. 466, 173 S.E. 2d 286 (1970).” State v. McDonald, 11 N.C. App. 497, 181 S.E. 2d 744 (1971), cert. den. 279 N.C. 396 (1971).

There is nothing in this record to indicate that the State had any “exculpatory statements” in its possession, nor is there anything in the record to show that the defendant made any request for such statements or exhibits in accordance with the statute. Moreover, the record discloses that the defendant was given full opportunity to examine all of the State’s witnesses prior to the trial. This assignment of error has no merit.

The defendant’s fourth assignment of error relates to the admission and exclusion of evidence. First, the defendant contends the court committed prejudicial error by allowing Officer Phillips to testify over defendant’s objection that the defendant was “talking very loud and boisterous,” and “using very loud and boisterous language.” “An observer may testify to common appearances, facts and conditions in language which is descriptive of facts observed so as to enable one not an eyewitness to form an accurate judgment in regard thereto.” State v. Goines, 273 N.C. 509, 160 S.E. 2d 469 (1968). The record discloses that the officer was merely describing the manner in which the defendant was conducting himself in the emergency room. This exception has no merit.

Next, the defendant contends the court committed prejudicial error by allowing over defendant’s objections (1) the solicitor to ask a leading question, (2) a witness to give an answer which was not responsive to a question, (3) to go back over areas already covered, (4) to make a self-serving declaration, (5) to testify to facts not within her knowledge, and (6) to state conclusions. We have carefully examined each exception in the record upon which this contention is based and we find and hold that the court did not abuse its discretion in the conduct of the trial with respect to the admission and exclusion of the evidence challenged by these exceptions.

The defendant contends the court committed prejudicial error by sustaining the State’s objections to questions on cross-examination of Officer Phillips regarding (1) whether the witness had been involved in a scuffle at the jail with a prisoner two or three weeks prior to the incident at the hospital, (2) how many times the witness had been married, and (3) whether the witness had sometime prior to this event visited the mental health clinic. Clearly, these questions call for irrelevant and immaterial testimony and the solicitor’s objections were properly sustained. We have carefully considered each exception embraced in the defendant’s fourth assignment of error, and we find no prejudicial error in the court’s admission and exclusion of testimony.

The defendant urges as error the court’s denial of his motion for judgment as of nonsuit made at the close of the State’s evidence and renewed at the close of defendant’s evidence. He grounds this assignment of error on the assertion in his brief: “The evidence shows that the defendant exerted his constitutional rights to resist an unlawful arrest.” G.S. 15-41(1) provides: “A peace officer may without warrant arrest a person: (1) When the person to be arrested has committed a felony or misdemeanor in the presence of the officer, or when the officer has reasonable ground to believe that the person to be arrested has committed a felony or misdemeanor in his presence.”

In State v. Cooper, 4 N.C. App. 210, 166 S.E. 2d 509 (1969), Chief Judge Mallard wrote:

“When a person has been lawfully arrested by a lawful officer and understands that he is under arrest, it is his duty to submit peacefully to the arrest. State v. Horner, 139 N.C. 603, 52 S.E. 136. The words ‘submit peacefully to arrest’ imply the yielding to the authority of a lawful officer, after being lawfully arrested.”

When the evidence is considered in the light most favorable to the State, we hold it is sufficient to require the submission of these cases to the jury. There is evidence from which the jury could find that the defendant resisted, delayed, and obstructed Barley Phillips, a Police Officer of the City of Green-ville, when the officer arrested him for disorderly conduct, by fighting, striking, and kicking the officer and by forcibly leaving the hospital, and by not submitting peaceably to a lawful arrest after he had been advised and understood that he was under arrest for disorderly conduct. There is also evidence from which the jury could find that the defendant assaulted the officer by striking and kicking him when the officer was undertaking to discharge the duties of his office. There is ample evidence from which the jury could find beyond a reasonable doubt that the defendant did create a public disturbance by engaging in fighting and violent and threatening behavior and by using vulgar, profane and abusive language in such a manner as to so arouse the average person as to create a breach of the peace. This assignment of error is overruled.

The defendant has brought forward several exceptions to the court’s charge to the jury. A careful review of the charge in its entirety does not reveal any prejudicial error.

The defendant asserts that the trial court erred in allowing the State to amend the disorderly conduct warrant during the court’s charge to the jury. The record reveals that before any evidence was taken in the three cases, the defendant moved to quash the disorderly conduct warrant on the grounds that the statute, G.S. 14-288.4, was unconstitutional. In denying the defendant’s motion, the court announced that it would interpret Section (2) of the statute as follows: “Makes any offensive coarse utterance, gesture or displays or uses abusive language in such manner as to so arouse the average person as to create a breach of the peace.” The court then instructed the solicitor that he could amend the warrant in view of the court’s interpretation of the statute. The record reveals the amendment was written into the warrant by the solicitor in the absence of the jury after the State and the defendant had rested. The superior court has discretion to allow a warrant to be amended as to form and substance before or after verdict, provided the amendment does not change the nature of the offense intended to be charged in the original warrant. State v. Williams, 1 N.C. App. 312, 161 S.E. 2d 198 (1968); State v. Brown, 225 N.C. 22, 33 S.E. 2d 121 (1945). In the instant case the amendment did not change the nature of the offense charged in the original warrant, and the court did not abuse its discretion in allowing the solicitor to amend.

We have carefully considered the remaining assignments of error based on the defendant’s exceptions to the court’s denial of his motions for mistrial, to set aside the verdict and in arrest of judgment, and we find that they are all without merit.

The defendant had a fair trial in the superior court free from prejudicial error.

No error.

Chief Judge Mallard and Judge Graham concur.