State v. Foust

196 S.E.2d 374 (1973)

18 N.C. App. 133

STATE of North Carolina v. Dan FOUST.

No. 7315SC289.

Court of Appeals of North Carolina.

May 9, 1973.

Certiorari Denied and Appeal Dismissed July 12, 1973.

Atty. Gen. Robert Morgan by C. Diederich Heidgerd, Associate Atty., Raleigh, for the State.

Walter G. Green, Graham, for defendant appellant.

Certiorari Denied and Appeal Dismissed by Supreme Court July 12, 1973.

BRITT, Judge.

In his first assignment of error, defendant contends the court erred in not allowing his motion to quash the warrant charging him with resisting arrest for the reason that he was arrested without a warrant and was not taken before a magistrate as provided by G.S. § 15-46. The contention is without merit. In State v. McCloud, 276 N.C. 518, 173 S.E.2d 753 (1970), our Supreme Court held that G.S. § 15-46 and G.S. § 15-47 do not prescribe *375 mandatory procedures affecting the validity of a trial. See also State v. Broome, 269 N.C. 661, 153 S.E.2d 384 (1967) and State v. Able, 13 N.C.App. 365, 185 S.E.2d 422 (1971). The assignment of error is overruled.

Defendant assigns as error the failure of the court to grant his motions for nonsuit. The evidence, viewed in the light most favorable to the State, tended to show: Around 5:15 p. m. on Sunday, 5 September 1971, Graham police officers observed an automobile being driven in an unusual manner on a public street of the City of Graham. They stopped the car and the operator, who appeared to be drunk, was arrested. While the operator was being placed under arrest, defendant, a passenger in the car, got out of the car with the smell of alcohol on his breath, cursed at police, staggered, "foamed at the mouth" and spoke with a "thick tongue." Defendant was told that he was under arrest for public drunkenness after which he continued to curse and refused to get into the police car. The initial arresting officer had trouble controlling the defendant and another policeman assisted. Defendant pushed the assisting policeman and spat in his face.

A peace officer may arrest without a warrant when the person to be arrested has committed a misdemeanor in the presence of the officer or when the peace officer has reasonable grounds to believe that the person to be arrested has committed a misdemeanor in his presence. G.S. § 15-41(1). State v. Summrell, 282 N.C. 157, 192 S.E.2d 569 (1972); State v. Fenner, 263 N.C. 694, 140 S.E.2d 349 (1965). Under the evidence in the instant case, the questions (1) whether defendant committed a misdemeanor in the presence of the officer, or the officer had reasonable grounds to believe he did, and (2) whether defendant resisted arrest were for the jury. The assignment of error is overruled.

We have carefully considered the numerous other assignments of error brought forward and argued in defendant's brief but finding them without merit, they all are overruled.

No error.

BROCK and PARKER, JJ., concur.