State v. McLoud

HEDRICK, Judge. Defendant assigns as error the denial of her motion to quash the warrant for resisting arrest. She argues that she had [299] a right to resist because her arrest for disorderly conduct was unlawful. A motion to quash raises the question of the sufficiency of the warrant to charge the commission of a criminal offense. In passing on the motion, the court treats the allegations of fact in the warrant as true and considers only the record proper and the provisions of the statutes under which the offense is charged. State v. Vestal, 281 N.C. 517, 189 S.E. 2d 152 (1972). There is nothing- on the face of the warrant here to indicate that the arrest for disorderly conduct was unlawful. This assignment of error is not sustained. Next, defendant contends that the court erred in allowing Officer Hogg to testify over her objection and motion to strike that “at the same time — well, after we subdued the two women, which I think that we only used the amount of force that was necessary.” While this testimony is clearly the officer’s opinion as to whether he used excessive force in subduing the defendant and her mother, we do not perceive on the facts of this case how the admission of such' evidence could have prejudiced defendant’s trial for resisting arrest. Defendant also asserts that the court erred in not allowing her mother to testify that the police officer searched her pocketbook and that $80.00 and a “fingernail clip” were missing therefrom. This evidence was clearly irrelevant and properly excluded by the court. Based on five exceptions in the record to comments of the trial judge during the taking of testimony and during the recapitulation of the evidence in the charge, the defendant contends the judge expressed an opinion on the evidence in violation of G.S. 1-180. Suffice it to say, we have carefully examined each comment challenged by these exceptions and find no impropriety whatsoever upon the part of the trial judge. This assignment of error has no merit. Defendant next asserts that the court erred in overruling her motions for judgment as of nonsuit because the evidence disclosed that her arrest for disorderly conduct was unlawful. This argument is not persuasive. Under G.S. 14-288.4 (a) (2), it is illegal to use “any utterance ... or abusive language which is intended and plainly likely to provoke violent retaliation and thereby cause a breach of the peace.” See, State v. Summrell, 282 N.C. 157, 192 S.E. 2d 569 (1972). The State’s evidence tends to show that Officer Hogg arrested the defendant after she pro [300] tested and remonstrated in a loud and boisterous manner against the arrest of Moseley and after she had directed profane, racist, and vulgar epithets at the officers. Under these circumstances, Hogg could reasonably believe that the statute (G.S. 14-288.4) had been violated in his presence. An arrest does not become unlawful merely because the person arrested is later acquitted of the crime for which he was arrested. State v. Jefferies, 17 N.C. App. 195, 193 S.E. 2d 388 (1972). No useful purpose can be served by our discussing defendant’s other assignments of error. We have carefully considered all the assignments of error in the record and conclude that the defendant had a fair trial free from prejudicial error. No error. Chief Judge Brock and Judge Morris concur.