State v. King
State v. King
Opinion of the Court
Defendant’s first assignment of error relates to whether there is a fatal variance between the ahegations of the warrant for interfering and the proof adduced. The warrant charges the defendant with obstructing an officer while the officer was discharging a duty of his office — making an arrest of the defendant. The defendant claims the violation, if any, occurred while the officer was attempting to arrest Burrows and hence a fatal variance. The defendant cites State v. Allen, 14 N.C. App. 485, 188 S.E. 2d 568 (1972), in support of his contention.
In the Allen case the officer had arrested Bruce Allen for driving under the influence. Some fifteen minutes after Bruce Allen had been placed in the patrol car, the officer had an argument with Walter Allen, a passenger in the vehicle. Bruce Allen got out of the car and struck the officer during the argument. He was charged with obstructing an officer while the officer was in the performance of his duties: to wit, arresting Bruce Allen. In reversing, this Court held that nonsuit should have been granted to Bruce Allen because of the fatal variance between the allegations and proof. Bruce Allen had peacefully submitted to the arrest some fifteen minutes earlier and obstructed only when the officer was attemping to arrest Walter Allen.
Defendant next contends that Officer Skelton had no authority to arrest without a warrant for a misdemeanor not committed in the officer’s presence and that the defendant could use reasonable force to resist the unlawful arrest. State v. Moore, 275 N.C. 141, 166 S.E. 2d 53 (1969); State v. Jefferies, 17 N.C. App. 195, 193 S.E. 2d 388 (1972). While the defendant’s statement of the principle of law is correct, the application to the facts here is incorrect. Firing a shotgun at the officer under the existing circumstances was clearly unreasonable and excessive force. State v. Mobley, 240 N.C. 476, 83 S.E. 2d 100 (1954); 1 Strong, N. C. Index, Arrest and Bail, § 6 p. 278.
The defendant’s remaining assignments of error pertain to the judge’s charge. Considering the charge in its entirety, we feel that the trial court correctly and properly charged the jury as required. He instructed the jury on the elements of each offense as well as the lesser included offenses as appropriate. State v. Duboise, 279 N.C. 73, 181 S.E. 2d 393 (1971). He correctly refused to charge on lesser included offenses which were not supported by the evidence. State v. Griffin, 280 N.C. 142, 185 S.E. 2d 149 (1971); State v. Curtis, 18 N.C. App. 116, 196 S.E. 2d 278 (1973). The proper instructions as to the quantum of proof were given as were other necessary instructions. State v. Billinger, 9 N.C. App. 573, 176 S.E. 2d 901 (1970). Viewed contextually and in its entirety, the trial court correctly charged the jury as required. State v. McWilliams, 277 N.C. 680, 178 S.E. 2d 476 (1971); State v. Lee, 277 N.C. 205, 176 S.E. 2d 765 (1970).
No error.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.