State v. . Perdue

Davis, J. after stating the facts: The first section of the Act of 1889, chapter 51, under which the defendants ITenry and Lizzie Perdue, are indicted, makes it a misdemeanor for any person to wilfully and unlawfully resist, delay or obstruct a public officer in discharging or attempting to discharge the duties of his office, and the second section, under which the other defendants are indicted, enacts that, “ Any person who, after having been lawfully commanded to aid an officer in arresting any person or in retaking any person who has escaped from legal custody, or in executing any legal process, wilfully neglects or refuses to aid such officers, shall be guilty of a misdemeanor.” The defendants named in the first count, and who were acquitted, were charged with a violation of the first section of the act, and the defendants named in the second count, and against whom there was a verdict of guilty, were charged with a violation of the second section of the act. In State v. Hall, 97 N. C., 474, it is said: “Different parties cannot be charged with different and distinct offences in the same indictment.” In that ease, two distinct offences were charged against two distinct boards of officers, sustaining distinct relations to the city of Wilmington, and the objection was taken by demurrer. In the present case, the offences charged are of the same grade, are kindred in their nature, relate to the same transaction and are subject to the same punishment. Two of the defendants, as to whom there was a verdict of not guilty, are indicted in one count for resisting an officer in the discharge of his duty, under the first section of the act, and the others, as to whom there *856 was a verdict of guilty, are indicted for refusing to aid the officer under the second section of the act. There is no objection as to the sufficiency of each count, as to the persons respectively embraced therein, to charge the offences set out, but it is insisted that they cannot be tried in the same indictment. If this objection had been taken in apt time, it might have been available to the defendants unless the Solicitor should elect to enter a nol. pros, as to one or the other of the counts, or quash the indictment and proceed upon separate indictments, which he might have done; but, we think, the objection after verdict is too late, and that “sufficient matter appears to enable the Court to proceed to judgment.” The Code, §1183; State v. McNeill, 93 N. C., 552, and cases there cited. State v. Harris, 106 N. C., 682, and cases cited. The verdict of not guilty, as to the defendants in the first count, was equivalent to a nol. pros, as to them, and there being a verdict of guilty as to the other defendants, upon the distinct count in the indictment, properly charging an offence against them, upon which the Court can proceed to judgment, there is no ground for arrest of judgment. State v. Reel, 80 N. C., 442. Error.