dissenting.

In this case, seven officers went to the residence of William R. Dudley and Donna Strawn to conduct a search pursuant to a search warrant. Joe Moore, the officer in charge of the search, testified that Lt. Rollins was present at the search “to keep watch over the house, to watch the front door, to make sure nobody did leave while we were searching.” The purpose of Lt. Rollins’ presence at the search is pursuant to G.S. 15A-256 which, as Officer Moore was aware, allows an officer executing a warrant directing a search of premises not generally open to the public to “detain any person present for such time as is reasonably necessary to execute the [search] warrant.” Hence, detaining a party during a search is part and parcel of the search process and Lt. Rollins was an important member of the law enforcement team engaged in conducting a search.

There is no fatal variance between the charge which states that the officer was “discharging and attempting to discharge a duty of his office, to wit: conducting a search” and the proof showing Lt. Rollins’ participation in the component activities constituting a search. Furthermore, the proof shows that Lt. Rollins was obstructed in discharging that duty. When defendant, contrary to instructions to remain seated on the couch, rose, approached the door in an attempt to leave and pushed Lt. Rollins, he obstructed, hindered, impeded Lt. Rollins in the performance of his duties. See State v. Leigh, 278 N.C. 243, 179 S.E. 2d 708 (1971).

For the foregoing reasons, I respectfully dissent.

There is a fatal variance between the charge and the evidence. The warrant charging the offense proscribed under G.S. 14-223 must set forth in particular the duty the officer is performing or attempting to perform. State v. Wiggs, 269 N.C. 507, 153 S.E. 2d 84 (1967). Accord, State v. Waller, 37 N.C. App. 133, 245 S.E. 2d 808 (1978) (holding that although the duty must be stated for violations of G.S. 14-223, this requirement need not be met for violations of G.S. 14-33(a)).

The warrant charges that defendant “did . . . resist, delay and obstruct Curtis Rollins . . . [a]t the time said officer was discharging and attempting to discharge a duty of his office, to wit; conducting a search of the residence of William R. Dudley and Donna Strawn for stolen property.” As the state’s evidence clearly showed, Lt. Rollins was not engaged in conducting the search. His mere presence at the scene — standing in the door —does not show that he was engaged in the search then being conducted. It is the resisting or obstructing of an officer in the performance of some duty which is the gravamen of the offense charged in G.S. 14-223. State v. Kirby, 15 N.C. App. 480, 190 S.E. 2d 320 (1972), appeal dismissed, 281 N.C. 761, 191 S.E. 2d 363 (1972).

Vacated.