noting that the power of arrest without warrant is entirely defined and limited by statute
How later courts described this case
- noting that the power of arrest without warrant is entirely defined and limited by statute
- exposure of a person’s buttocks “probably constitutes a breach of peace or public nuisance”
- “In such case the person attempting the arrest stands in the position of a wrongdoer and may be resisted by the use of force, as in self-defense.”
- “[i]t is axiomatic that every person has the right to resist an unlawful arrest”
Written by the judges who cited it.
The opinion
DeNNy, J.,
concurring: "While the majority opinion deals only with the facts as to what occurred at Brewer’s Service Station, the previous conduct of the defendant at the Dallas Grill, in my opinion, did not justify Chief Eidson in arresting him without a warrant.
When all the evidence adduced in the trial below is considered, it clearly appears that bad blood existed between Broome and the defendant. The evidence most favorable to the State is Broome’s testimony to the effect that he saw the defendant at the Dallas Grill; that “he was staggering around”; that the defendant cursed him and Arnold Eidson, a brother of the Chief of Police of the town of Dallas. The evidence also discloses that Arnold Eidson and officer Broome were in Broome’s ear at the time the purported cursing took place. There is in the record, however, no evidence tending to show that the defendant was loud and boisterous or that any person or persons other than Broome and Eidson heard anything he said. Moreover, the warrant upon which the defendant was tried, which was signed by Broome and Chief Eidson, as complainants, does not charge the defendant with disorderly conduct, but merely of appearing “in public under the influence of intoxicating liquor.”
Furthermore, it is disclosed by the defendant’s evidence and not denied by the State, that after the defendant left the Dallas Grill he went to Brewer’s Service Station and was there “about 35 or 40 minutes” before the officers attempted to arrest him. And there is no evidence tending to show any misconduct on the part of the defendant while he was at the filling station prior to the arrival of the officers. I realize that neither the defendant’s evidence nor the result of the trial on the charge of being drunk is controlling on the legal question presented for review, nevertheless it is significant that a number of the leading citizens of the town of Dallas talked with the defendant while he was at the filling station and were there when he was arrested, and these citizens testified unequivocally in the trial below that the defendant was not drunk at the time of his arrest. The jury believed them and found the defendant not guilty of the charge.
*495 The law is clear that an officer is not authorized to arrest a citizen even for a breach of the peace not committed in his presence. Alexander v. Lindsey, 230 N.C. 663 , 55 S.E. 2d 470 . The warrant upon which the defendant was convicted charged him with resisting an officer, “to-wit: A. E. Eidson (not Broome), in the performance of his duties as such officer,” etc. The State offered no evidence tending to show that the defendant did anything in the presence of Chief Eidson that would justify his arrest without a warrant. Therefore, the State, in my opinion, has not shown facts that would justify the arrest of the defendant by Chief Eidson for alleged misconduct that occurred at least 35 or 40 minutes before he arrested him, and which alleged misconduct neither took place in his presence nor on the premises of the service station where he was arrested.
If it be conceded that the facts as related by Broome are true (which were vigorously denied by the defendant), in view of the personal animosity that existed between Broome and the defendant, I have considerable dpubt as to whether the conversation or controversy between Broome and the defendant which occurred at the Dallas Grill, constituted a breach of the peace. G.S. 15-39; and the authorities cited on this point in the majority opinion. Hence, I think that on the record before us, the majority opinion has construed the law aright.