{ "id": 8554278, "name": "STATE OF NORTH CAROLINA v. DEMPSEY ROY POWELL", "name_abbreviation": "State v. Powell", "decision_date": "1971-02-24", "docket_number": "No. 7119SC83", "first_page": "443", "last_page": "451", "citations": [ { "type": "official", "cite": "10 N.C. App. 443" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "100 S.E. 2d 497", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1957, "opinion_index": 0 }, { "cite": "247 N.C. 253", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626501 ], "year": 1957, "opinion_index": 0, "case_paths": [ "/nc/247/0253-01" ] }, { "cite": "137 S.E. 2d 109", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1964, "opinion_index": 0 }, { "cite": "262 N.C. 419", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567953 ], "year": 1964, "opinion_index": 0, "case_paths": [ "/nc/262/0419-01" ] }, { "cite": "99 S.E. 2d 867", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "246 N.C. 642", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627912 ], "opinion_index": 0, "case_paths": [ "/nc/246/0642-01" ] }, { "cite": "74 S.E. 2d 729", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "237 N.C. 302", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8610484 ], "opinion_index": 0, "case_paths": [ "/nc/237/0302-01" ] }, { "cite": "137 S.E. 2d 819", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1964, "opinion_index": 0 }, { "cite": "262 N.C. 472", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568369 ], "year": 1964, "opinion_index": 0, "case_paths": [ "/nc/262/0472-01" ] }, { "cite": "55 S.E. 2d 470", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "230 N.C. 663", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8631888 ], "opinion_index": 0, "case_paths": [ "/nc/230/0663-01" ] }, { "cite": "80 S.E. 989", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 2, "opinion_index": 0 }, { "cite": "166 N.C. 257", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11269384 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nc/166/0257-01" ] }, { "cite": "58 S.E. 2d 609", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "231 N.C. 629", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8631431 ], "opinion_index": 0, "case_paths": [ "/nc/231/0629-01" ] }, { "cite": "90 S.E. 2d 703", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1956, "opinion_index": 0 }, { "cite": "243 N.C. 431", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625534 ], "year": 1956, "opinion_index": 0, "case_paths": [ "/nc/243/0431-01" ] }, { "cite": "42 S.E. 2d 686", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1947, "opinion_index": 0 }, { "cite": "227 N.C. 475", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626157 ], "year": 1947, "opinion_index": 0, "case_paths": [ "/nc/227/0475-01" ] }, { "cite": "164 S.E. 737", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1932, "opinion_index": 0 }, { "cite": "203 N.C. 13", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622578, 8597916 ], "year": 1932, "opinion_index": 0, "case_paths": [ "/nc/203/0865-03", "/nc/203/0013-01" ] }, { "cite": "140 S.E. 2d 349", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "opinion_index": 0 }, { "cite": "263 N.C. 694", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572645 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/nc/263/0694-01" ] }, { "cite": "153 S.E. 2d 84", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "269 N.C. 507", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564474 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/nc/269/0507-01" ] }, { "cite": "176 S.E. 2d 838", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "9 N.C. App. 477", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551919 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc-app/9/0477-01" ] }, { "cite": "75 S.E. 2d 154", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1953, "opinion_index": 0 }, { "cite": "237 N.C. 432", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8613029 ], "year": 1953, "opinion_index": 0, "case_paths": [ "/nc/237/0432-01" ] }, { "cite": "153 S.E. 2d 791", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "270 N.C. 35", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565103 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/nc/270/0035-01" ] }, { "cite": "97 S.E. 2d 840", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1957, "opinion_index": 0 }, { "cite": "246 N.C. 183", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625313 ], "year": 1957, "opinion_index": 0, "case_paths": [ "/nc/246/0183-01" ] } ], "analysis": { "cardinality": 701, "char_count": 17016, "ocr_confidence": 0.502, "pagerank": { "raw": 1.042449820680665e-07, "percentile": 0.5512387015613651 }, "sha256": "b225c0697842ea24f0433a766ee4fd5733753ea4748c52771bdc81f0eb4a156d", "simhash": "1:45630768b5482b1a", "word_count": 2934 }, "last_updated": "2023-07-14T19:51:53.441044+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Parker and Graham concur." ], "parties": [ "STATE OF NORTH CAROLINA v. DEMPSEY ROY POWELL" ], "opinions": [ { "text": "MALLARD, Chief Judge.\nDefendant contends in the first two assignments of error that the judge committed error in failing to allow his1 motion to quash the charges in the purported warrant. The motion was made \u201c [b] efore evidence was introduced.\u201d\nIt appears from the record that at the 8 December 1969 Term of Recorder\u2019s Court of Randolph County, the defendant pleaded not guilty and was found guilty of assault on an officer and resisting arrest. From the judgment imposed, he appealed to the superior court. No motion to quash the warrant appears in the record of the trial in the recorder\u2019s court. The record is silent at what stage of the proceedings in the superior court the motion to quash was made other than it was \u201c [b] efore evidence was introduced on behalf of the State or the defendants.\u201d\nIn moving to amend the warrant in superior court, the solicitor stated as follows: \u201cI would like to amend the warrant to refusing to submit to arrest.\u201d The motion was allowed, but the instrument itself was not amended. Defendant correctly contends that the allowance of a motion to amend a warrant is not self-executing. In 4 Strong, N. C. Index 2d, Indictment and Warrant, \u00a7 12, it is stated:\n\u201cAn order allowing an amendment it not self-executing, and when the amendments are not actually made pursuant to the order, the defects are not cured.\u201d\nThus we must construe the warrant as if no amendment had been allowed.\nNo grounds were stated by the defendant in superior court, and the trial judge made no inquiry, as to why the defendant contended the warrant should be quashed. In his brief defendant contends that the warrant \u201cas amended\u201d fails to charge the defendant with the offense of resisting arrest. This motion to quash was not made in apt time. In the case of State v. St. Clair, 246 N.C. 183, 97 S.E. 2d 840 (1957), Chief Justice Winborne said:\n\u201cDecisions of this Court are uniform in holding that a motion to quash the warrant or bill of indictment, if made after plea of not guilty is entered, is addressed to the discretion of the trial court. The exercise of such discretion is not reviewable on appeal.\u201d\nHowever, in the case of State v. Matthews, 270 N.C. 35, 153 S.E. 2d 791 (1967), Justice Bobbitt (now Chief Justice) said: \u201cWhether the motion to quash would be entertained when made for the first time in the superior court was for determination by the trial judge in the exercise of his discretion.\u201d In the case before us Judge Long did not dismiss the motion for being improperly made but exercised his discretion and entertained the motion, and after consideration denied it. The exercise of such discretion to rule on the motion is not reviewable on appeal. State v. St. Clair, supra. The ruling on the motion, however, is subject to review.\nThe question is neither presented nor decided whether upon the factual situation alleged in this case the attempted charge of assault is included in the offense of resisting arrest.\nThompson testified on cross-examination by Mr. Bell, defendant\u2019s attorney:\n\u201cI believe, Mr. Bell, that when we tried Dempsey Roy Powell in Recorder\u2019s Court, and tried him for the citation, you stipulated that the warrant was lost. You stipulated that the warrant could not be found. There had been a warrant issued and we would try him and you would not object to trying him on the warrant that I had issued out of my citation book.\u201d\nEven if the trial judge had made findings with respect to this so-called \u201cstipulation,\u201d neither of the instruments in this case are sufficient to be treated as an information under the provisions of G.S. 15-140.\nThere are two instruments purporting to be warrants in the record. One is \u201cNorth Carolina Uniform Traffic Ticket 195061\u201d and the other is the \u201cwarrant\u201d quoted above. In the uniform traffic ticket the charge of resisting arrest is set forth by using only the two words \u201cresist arrest.\u201d This is not sufficient to charge the offense. Also in this instrument the charge of assault is set forth by the use of the words \u201cAssault On An Officer.\u201d The use of this language to identify the person assaulted is not sufficient to charge the offense of assault. In order to properly charge an assault, there must be a victim named, since by failing to name the particular person assaulted, the defendant would not be protected from a subsequent prosecution for assault upon a named person. State v. Scott, 237 N.C. 432, 75 S.E. 2d 154 (1953). A valid warrant \u201cmust charge the offense with sufficient certainty to apprise the defendant of the specific accusation against him so as to enable him to prepare his defense and to protect him from a subsequent prosecution for the same offense, and to enable the court to proceed to judgment.\u201d 4 Strong, N. C. Index 2d, Indictment and Warrant, \u00a7 9. The uniform traffic ticket appearing in the record does not properly charge any crime. State v. Teasley, 9 N.C. App. 477, 176 S.E. 2d 838 (1970). However, upon reading the charge of the court, it is made clear that the defendant was not tried upon the uniform traffic ticket but was tried upon the instrument purporting to be a warrant as hereinabove set out.\nThe prerequisites of the affidavit portion of a warrant properly charging the offense of resisting arrest are set forth in State v. Wiggs, 269 N.C. 507, 153 S.E. 2d 84 (1967) and State v. Fenner, 263 N.C. 694, 140 S.E. 2d 349 (1965). One of these prerequisites is that the affidavit upon which the order of arrest is based shall \u201cidentify by name the person alleged to have been resisted, delayed or obstructed, and describe his official character with sufficient certainty to show that he was a public officer within the purview of the statute.\u201d (Emphasis added.) In the affidavit of the instrument purporting to be a warrant upon which the defendant was tried, instead of using the name of Thompson, the identity of the officer is referred to as \u201cthis affiant.\u201d\nIn preparing warrants and bills of indictment, the law, as enacted by the Legislature and as interpreted by the courts, should be followed. The instruments in this record indicate that scant heed has been paid to the rules relating to the proper preparation of warrants. We do not approve of the words \u201cthis affiant\u201d being used in lieu of identifying the officer by name in the warrant; however, the warrant does show on its face that R. L. Thompson was the affiant. When acting as such, a State highway patrolman is a public officer within the purview of G.S. 14-223. See G.S. 20-188.\nThe name \u201cDempsey Roy Smith\u201d appearing in the affidavit does not necessarily make the affidavit invalid because the allegation referring to \u201cDempsey Roy Smith\u201d may be treated as a redundant allegation. A motion to quash for redundancy in the affidavit portion of a warrant upon which the order of arrest portion is based is addressed to the sound discretion of the trial judge. G.S. 15-153; State v. Lea, 203 N.C. 13, 164 S.E. 737 (1932); State v. Davenport, 227 N.C. 475, 42 S.E. 2d 686 (1947).\nConceding but not deciding that the affidavit in the warrant upon which the defendant was tried was sufficient, a more serious question is presented when the order of arrest portion of the warrant is considered. In State v. McGowan, 243 N.C. 431, 90 S.E. 2d 703 (1956), Justice Higgins said:\n\u201cA valid warrant of arrest must be based on an examination of the complainant under oath. G.S. 15-19. It must identify the person charged. Carson v. Doggett, 231 N.C. 629, 58 S.E. 2d 609. It must contain directly or by proper reference at least a defective statement of the crime charged. S. v. Gupton, 166 N.C. 257, 80 S.E. 989; Alexander v. Lindsey, 230 N.C. 663, 55 S.E. 2d 470. It must be directed to a lawful officer or to a class of officers commanding the arrest of the accused. * * * \u201d\nSee also State v. Smith, 262 N.C. 472, 137 S.E. 2d 819 (1964).\nIn the order of arrest portion of the purported warrant, the person ordered arrested was \u201cDempsey Roy Smith\u201d and not the defendant, \u201cDempsey Roy Powell.\u201d The instrument, therefore, does not meet the requirement that it be directed to a lawful officer commanding the arrest of the accused. In the affidavit the accused is listed as Dempsey Roy Powell, but Dempsey Roy Smith is ordered to be arrested.\nIn State v. Matthews, supra, it is said:\n\u201cThe order of arrest signed by \u2018R. F. Johnson, Desk Officer/ and the attached affidavit of C. G. Smith on which it is based, are to be read and considered as a single document and together constitute a warrant. S. v. Gupton, 166 N.C. 257, 80 S.E. 989; Moser v. Fulk, 237 N.C. 302, 74 S.E. 2d 729, and cases cited. Defects, if any, in the warrant affect its validity as a basis for a criminal prosecution on the charge set forth in the affidavit as well as its validity as a basis for a legal arrest. S. v. Blackwell, 246 N.C. 642, 99 S.E. 2d 867.\u201d\nThe affidavit and the order of arrest together constitute the instrument purporting to be a warrant upon which this defendant was tried. The order of arrest and the affidavit must be construed together. State v. Matthews, supra; Moser v. Fulk, supra. While an affidavit similar to the one under consideration may be sufficient under some circumstances, we hold that the warrant in this case is fatally defective and void because of the combination of failing to identify the officer by name in the affidavit and failing to order the defendant arrested in the order of arrest. The trial judge committed error in denying the defendant\u2019s motions to quash. The verdict and judgment are therefore vacated. This does not bar further prosecution of this defendant if the solicitor deems it advisable. State v. Wilson, 262 N.C. 419, 137 S.E. 2d 109 (1964) ; State v. Jordan, 247 N.C. 253, 100 S.E. 2d 497 (1957).\nDefendant has other assignments of error, some of which have merit; but in view of the ruling herein, we do not deem it necessary to discuss them.\nReversed.\nJudges Parker and Graham concur.", "type": "majority", "author": "MALLARD, Chief Judge." } ], "attorneys": [ "Attorney General Morgan and Trial Attorney Magner for the State.", "Bell, Ogburn & Redding by J. Howard Redding for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. DEMPSEY ROY POWELL\nNo. 7119SC83\n(Filed 24 February 1971)\n1. Indictment and Warrant \u00a7 12\u2014 allowance of motion to amend warrant \u2014 amendments not made\nThe allowance of a motion to amend a warrant is not self-executing, and when the amendments are not actually made pursuant to the court\u2019s ruling, the defects are not cured.\n2. Indictment and Warrant \u00a7 15\u2014 motion to quash in superior court \u2014 failure to make motion in recorder\u2019s court\nMotion to quash the warrant made for the first time in the superior court on appeal from conviction in a recorder\u2019s court, although not made in apt time, may be entertained by the superior court judge in his discretion.\n3. Indictment and Warrant \u00a7 7\u2014 uniform traffic ticket \u2014 purported warrant\u2014 insufficiency as an information\nIn this prosecution for resisting arrest and assault, neither a uniform traffic ticket nor a warrant purportedly charging the offenses is sufficient to be treated as an information under G.S. 15-140.\n4. Arrest and Bail \u00a7 6; Assault and Battery \u00a7 11\u2014 resisting arrest \u2014 assault\u2014 insufficiency of allegations in uniform traffic ticket\nUniform traffic ticket in which charge of resisting arrest is set forth only by use of the words \u201cresist arrest,\u201d and charge of assault is set forth by use of the words \u201cAssault On An Officer\u201d without any identification of the person assaulted, held insufficient to serve as a warrant for either offense.\n5. Arrest and Bail \u00a7 6\u2014 warrant for resisting arrest \u2014 identification of officer by name\nThe affidavit supporting an order of arrest for the offense of resisting arrest must identify by name the person alleged to have been resisted, delayed or obstructed, and describe his official character with sufficient certainty to show that he was a public officer within the purview of G.S. 14-223.\n6. Arrest and Bail \u00a7 6\u2014 warrant for resisting arrest \u2014 identification of officer as \u201cthe affiant\u201d\nIn a warrant for resisting arrest, use of the words \u201cthe affiant\u201d in lieu of identifying by name the officer allegedly resisted is disapproved by the Court of Appeals.\n7. Arrest and Bail \u00a7 6\u2014 resisting arrest \u2014 highway patrolman as public officer\nA State highway patrolman is a public officer within the purview of G.S. 14-223. G.S. 20-188.\n8. Indictment and Warrant \u00a7\u00a7 10, 14\u2014 accused incorrectly named in one place in affidavit \u2014 redundant allegation \u2014 motion to quash\nWhere the name of the accused was correctly stated as \u201cDempsey Roy Powell\u201d in three places in an affidavit for an arrest warrant, a subsequent statement in the affidavit naming the accused as \u201cDempsey Roy Smith\u201d is a redundant allegation, and a motion to quash the warrant for such redundancy is addressed to the sound discretion of the trial judge. G.S. 15-153.\n9. Indictment and Warrant \u00a7 10\u2014 order of arrest \u2014 incorrect name for accused\nPortion of a warrant which erroneously orders the arrest of \u201cDempsey Roy Smith\u201d rather than the person named in the affidavit, \u201cDempsey Roy Powell,\u201d does not meet the requirement that an arrest warrant be directed to a lawful officer commanding the arrest of the accused.\n10. Indictment and Warrant \u00a7 7\u2014 arrest warrant \u2014 order of arrest \u2014 affidavit\nAn order of arrest and its supporting affidavit constitute the warrant and must be construed together.\n11. Arrest and Bail \u00a7 6; Indictment and Warrant \u00a7\u00a7 10, 11\u2014 warrant for resisting arrest \u2014 failure to identify officer by name \u25a0\u2014 incorrect name for accused in arrest order\nWarrant for resisting arrest is fatally defective where the officer allegedly resisted is not identified by name in the affidavit, and the order of arrest erroneously refers to defendant as \u201cDempsey Roy Smith\u201d rather than by his correct name of \u201cDempsey Roy Powell.\u201d\nAppeal by defendant from Long, Swperior Court Judge, 31 August 1970 Session of Superior Court held in Randolph County.\nDefendant was tried upon an instrument purporting to be a warrant, the pertinent parts of which read as follows:\n\u201cR. L. Thompson, S.H.P., being duly sworn, complains and says, that at and in said County, and Asheboro Township on or about the 21st day of Aug., 1969, Dempsey Roy Powell, did unlawfully, wilfully resist, delay, and obstruct a duly qualified officer to-wit: this affiant, a N. C. State Highway Patrolman, while performing or attempting to perform a duty of his office, to-wit: while serving a warrant on the said Dempsey Roy Powell, for improper passing, he, the said Dempsey Roy Powell, refused to go with said officer after being place (sic) under arrest and grabbed warrant and started fighting said officer, said officer summoned help to place Dempsey Roy Smith (sic) under arrest, 2nd count; and Dempsey Roy Powell did on the above date unlawfully and wilfully assault one R. L. Thompson by striking him about the body with his fist, against the forim of the Statute in such cases made and provided, and contrary to law and against the peace and dignity of the State.\nSubscribed and sworn to - before me, this 15th day of Sept., 1969 f R. L. Thompson R. G. Delk, J.P. J\nState of North Carolina To Any Lawful Officer of Randolph County \u2014 Greeting:\nYou are commanded to arrest Dempsey Roy Smith (sic) and to safely keep, so that you have him before me at my office in said County, immediately, to answer the above complaint, and be dealt with as the law directs.\nGiven under my hand and seal this 15th day of Sept., 1969.\nR. G. Delk, (J. P. Seal)\u201d\nThe evidence for the State tended to show that the witness R. L. Thompson (Thompson) was a State highway patrolman on 21 August 1969. On that date Thompson, accompanied by another State highway patrolman, W. L. Smith (Smith), went to the home of Tiffany Troy Powell (Troy) with a warrant for the arrest of Dempsey Roy Powell (defendant) for improper passing. Thompson was in uniform at the time but Smith was in civilian clothing. The two patrolmen had been there earlier that day for the purpose of investigating the charge against the defendant (who had been operating a motorcycle) for improper passing of Smith who at the time was operating a private automobile. Thompson placed the defendant under arrest, and while he was reading the warrant to him, the defendant grabbed it out of the officer\u2019s hand, \u201cwadded it up,\u201d and threw it on the ground. Then the defendant \u201cjerked away\u201d from Thompson, pushed him, and struck him on the shoulder. Thompson used mace on the defendant who ran. Thompson caught him and took him to jail.\nThe defendant did not offer any evidence. Tiffany Troy Powell, who was charged with an assault on the two officers and whose case was consolidated for trial with the defendant\u2019s case, without objection, did offer evidence. Troy\u2019s evidence tended to show that the defendant lived with him. The defendant ran when the officers came and received a broken arm while being arrested.\nThe jury returned a verdict of \u201cguilty as charged,\u201d and from a judgment of imprisonment for a term of six months, the defendant appealed to the Court of Appeals.\nAttorney General Morgan and Trial Attorney Magner for the State.\nBell, Ogburn & Redding by J. Howard Redding for defendant appellant." }, "file_name": "0443-01", "first_page_order": 467, "last_page_order": 475 }