{
  "id": 8615276,
  "name": "STATE v. ANDREW JUNE FAULKNER",
  "name_abbreviation": "State v. Faulkner",
  "decision_date": "1955-03-09",
  "docket_number": "",
  "first_page": "609",
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    "name": "Supreme Court of North Carolina"
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  "last_updated": "2023-07-14T21:30:40.140494+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Babilhill, 0. J., and Deven, J., took no part in tbe consideration or decision of this case."
    ],
    "parties": [
      "STATE v. ANDREW JUNE FAULKNER."
    ],
    "opinions": [
      {
        "text": "Parker, J.\nIn this Court the defendant made a motion for arrest of judgment on the charge in the warrant upon the alleged ground that the warrant is void, because in the complaint attached to the warrant Dut-ton\u2019s name is written, where the defendant\u2019s should have been.\nIn the recent case of S. v. Scott, ante, 178, 84 S.E. 2d 654, an indictment charging that the defendant did \u201cresist, delay and obstruct a public officer in discharge and attempting to discharge the duty of his office . . .\u201d was held insufficient to charge the offense of resisting an officer. Upon the authority of that case we hold that the warrant here does not charge the offense of resisting an officer, that the motion in arrest of judgment raises tbe question for decision, and it is ordered that tbe judgment be arrested.\nTherefore, it is not necessary for us to decide wbetber tbe warrant is void on tbe ground alleged by defendant. On tbis point see S. v. Hammonds, ante, 226, 85 S.E. 2d 133, and tbe cases therein cited.\nTbe use of tbe word \u201cor\u201d in tbe warrant, to wit: \u201cresist, delay or obstruct a public officer in discharging or attempting to discharge, etc.,\u201d instead of tbe word \u201cand\u201d is bad pleading. S. v. Williams, 210 N.C. 159, 185 S.E. 661; 42 C.J.S., Indictments and Informations, Sec. 101.\nTbe defendant assigns as error tbe failure of tbe lower court to allow bis motion for judgment of nonsuit. Tbis exception is brought forward by tbe defendant, but in support of it no reason or argument is stated or authority cited, except argument that tbe warrant is void. We have said in S. v. Tola, 222 N.C. 406, 23 S.E. 2d 321, \u201ca defect appearing in a warrant or bill of indictment can be taken advantage of only by motion to quash or by motion in arrest of judgment.\u201d It would seem that tbe defendant by virtue of Rule 28, Rules of Practice in tbe Supreme Court, 221 N.C. 544, has abandoned bis exception as to tbe insufficiency of tbe evidence to carry tbe case to tbe jury.\nTbe defendant assigns as error tbis part of tbe charge: \u201cIf tbe defendant\u2019s evidence raised a reasonable doubt as to bis guilt or if such evidence caused to linger in the minds of tbe jury from tbe original presumption of innocence beyond a reasonable doubt as to bis guilt or, if upon all tbe evidence, tbe jury entertained a reasonable doubt as to bis guilt, tbe defendant is entitled to a verdict of not guilty, although tbe defendant\u2019s evidence may not have justified the jury of tbe matters and justifications or excuse.\u201d (Italics ours.)\nIt is evident that tbe trial court in tbis part of its charge intended to quote what we said in S. v. Carver, 213 N.C. 150, 195 S.E. 349, which has been quoted with approval in S. v. Cephus, 239 N.C. 521, 80 S.E. 2d 147. Tbe words used in tbe charge are tbe same as those in tbe Carver Case with these exceptions: one, in the charge tbe word \u201cbeyond\u201d is inserted; two, in tbe charge tbe word \u201cjustified\u201d is used instead of \u201csatisfied,\u201d and three, tbe charge used tbe words, \u201cof tbe matters and justifications or excuse,\u201d when tbe Court\u2019s words were \u201cof matters in justification or excuse.\u201d\nJust before tbe part of tbe charge excepted to above tbe trial court correctly charged as follows : \u201cE ow, there is no burden on tbe defendant at all in tbis case. Tbe burden rests on tbe State to satisfy you from tbe evidence and beyond a reasonable doubt as to all of tbe elements.\u201d But when the judge went on to charge that if tbe defendant\u2019s \u201cevidence caused to linger in the minds of tbe jury from the original presumption of innocence beyond a reasonable doubt as to Ms guilt\u201d be would be entitled to a verdict of acquittal, it would seem that those words meant that tbe defendant\u2019s evidence must raise not a reasonable doubt, but beyond a reasonable doubt as to bis guilt, before be could be acquitted. That, of course, is not tbe law and tbe error is prejudicial. S. v. Cephus, supra. Tbe statement of tbe law correctly before and later in tbe part of tbe charge assigned as error, except as to tbe unfortunate use of tbe word \u201cjustified\u201d instead of \u201csatisfied,\u201d does not cure tbe error. S. v. Stroupe, 238 N.C. 34, 76 S.E. 2d 313.\nFor error in tbe charge, there must be a new trial in tbe case of a felonious assault.\nIn tbe case of resisting arrest tbe legal effect of arresting tbe judgment is to vacate tbe verdict and sentence, and tbe State may proceed against tbe defendant, if it so desires, upon a new and sufficient warrant or bill of indictment. S. v. Scott, 237 N.C. 432, 75 S.E. 2d 154; S. v. Sherrill, 82 N.C. 695; 15 Am. Jur., Criminal Law, Sec. 441.\nIt is therefore ordered.\nIn tbe Resisting an Officer Case \u2014 Judgment Arrested.\nIn tbe Felonious Assault Case-New Trial.\nBabilhill, 0. J., and Deven, J., took no part in tbe consideration or decision of this case.",
        "type": "majority",
        "author": "Parker, J."
      }
    ],
    "attorneys": [
      "Harry McMullan, Attorney General, and Ralph Moody, Assistant Attorney-General, for the State.",
      "W. B. Nivens for Defendant, Appellant."
    ],
    "corrections": "",
    "head_matter": "STATE v. ANDREW JUNE FAULKNER.\n(Filed 9 March, 1955.)\n1. Arrest \u00a7 8: Criminal Law \u00a7 56\u2014\nA warrant which charges that defendant \u201cunlawfully and wilfully, did resist, delay or obstruct a public officer in discharging or attempting to discharge a duty of his office . . .\u201d is insufficient to charge the offense of resisting an officer, and defendant\u2019s motion in arrest of judgment must be allowed.\n2. Indictment and Warrant \u00a7 9\u2014\nThe use of the disjunctive \u201cor\u201d instead of the conjunctive \u201cand\u201d is disapproved.\n3. Indictment and Warrant \u00a7 13: Criminal Law \u00a7 56\u2014\nA defect appearing in a warrant or hill of indictment can be taken advantage of only by motion to quash or by motion in arrest of judgment, and may not be presented by motion to nonsuit.\n4. Criminal Law \u00a7 79\u2014\nAn assignment of error brought forward in the brief but in support of which no argument is stated or authority cited upon any germane ground, is deemed abandoned. Rule 28, Rules of Practice in the Supreme Court.\n5. Criminal Law \u00a7 53b\u2014\nAn instruction susceptible to the construction that defendant\u2019s evidence must raise a question as to his guilt beyond a reasonable doubt, must be held for prejudicial error.\n6. Criminal Law \u00a7 81c (2) \u2014\nAn erroneous instruction on the burden of proof is not corrected by prior and subsequent correct instructions upon the point.\n7. Criminal Law \u00a7 56\u2014\nThe legal effect of arresting the judgment is to vacate the verdict and sentence, and the State may thereafter proceed upon a new and sufficient warrant or bill of indictment if it so desires.\nBarnhill, C. 1., and Devin, J., took no part in the consideration or decision of this case.\nAppeal by defendant from Glarhson, J., August Term 1954 of UNION.\nCriminal prosecution upon a warrant and bill of indictment, wbicb charges, without objection, were consolidated for trial.\nE. L. Dutton, a member of the State Highway Patrol, made a complaint under oath to the deputy clerk of the Recorder\u2019s Court of Union County that on 25 April 1954 \u201cE. L. Dutton, S. H. P., . . . unlawfully and wilfully, did resist, delay or obstruct a public officer in discharging or attempting to discharge a duty of his office . . .\u201d The warrant issued upon the complaint commanded the arrest of June Faulkner, the defendant. On this warrant the defendant was tried in the Recorder\u2019s Court, and from a judgment of imprisonment there he appealed to th\u00a9 Superior Court, where he was tried de novo.\nThe bill of indictment charged the defendant Andrew June Faulkner on 24 April 1954 with feloniously assaulting E. L. Dutton with a deadly weapon, to wit: a knife, with felonious intent to kill and murder E. L. Dutton and inflicting upon him serious injuries not resulting in death by cutting him about the head, face, body and limbs.\nPlea of Not Guilty. Verdict guilty as charged. Judgment: imprisonment in the common jail of the county for a period of three to four years, and assigned to work the public roads.\nThe defendant appeals, assigning error.\nHarry McMullan, Attorney General, and Ralph Moody, Assistant Attorney-General, for the State.\nW. B. Nivens for Defendant, Appellant."
  },
  "file_name": "0609-01",
  "first_page_order": 647,
  "last_page_order": 650
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