State v. Dudley

WELLS, Judge. 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. Judge Erwin concurs. Judge Martin (Robert M.) dissents.