holding that "[w]hen an appeal of right is taken to the Superior Court, in contemplation of law it is as if the case had been brought there originally and there had been no previous trial. The judgment appealed from is completely annulled and is not thereafter available for any purpose."
How later courts described this case
- holding that "[w]hen an appeal of right is taken to the Superior Court, in contemplation of law it is as if the case had been brought there originally and there had been no previous trial. The judgment appealed from is completely annulled and is not thereafter available for any purpose."
- holding a trial court was in error when its instructions ignored whether the officers' actions were lawful when the evidence for the defendants tended to show the officers' actions were unlawful
- emphasizing "the constitutional principle that a person's home is his castle," "in accordance with the ancient rules of the common law" (citations omitted)
- explaining that a district court judgment is "completely annulled"
Written by the judges who cited it.
The opinion
LAKE, J.,
concurring in result as to Katherine Sparrow.
Katherine Sparrow was charged with: (1) Unlawfully and wil-fully resisting, delaying and obstructing “Lt. J. R. Hall, an officer of the Charlotte Police Department youth bureau, while he * * * was attempting to discharge a duty of his office, to-wit: Serving a petition on a minor, by kicking him from behind as he attempted to arrest a juvenile on the petition;” and (2) “assault on Lt. J. R. Hall * * * by striking the said Lt. J. R. Hall, with her feet as she kicked him from behind.”
The superior court dismissed the second charge. The effect is an adjudication that she did not commit the assault which is the basis of the first charge — resisting, obstructing and delaying the officer. Since the second charge has been so adjudicated, it necessarily follows that the motion for nonsuit on the charge of resisting, obstructing and delaying the officer should have been granted. Consequently, I concur in this result.
I cannot, however, concur in the reasoning by which the majority has reached this result and which, I fear, will rise up to haunt us in other cases of resistance to police officers. The majority says the nonsuit should have been granted because at the time Katherine Sparrow kicked Lt. Hall, Karen had already been arrested and was in the custody of Officer Maness.
The evidence for the State is that Karen Torpey, the child whom the process directed the officers to take into custody, attempted to dart past the officers and run out of the front door of the Sparrow house. Officer Maness grabbed her by the arm. She then bit him. As he was in'process of gaining control over the child and of removing her from the house, Marvin Ray Sparrow sprang upon Officer Maness? back, obviously to prevent him from taking Karen from the house. *516 As they struggled, Lt. Hall laid hold upon Marvin Ray Sparrow and told him he was under arrest. When he did so, Katherine Sparrow kicked Lt. Hall.
If we disregard the trial judge’s adjudication that Katherine Sparrow did not assault Lt. Hall, we have, here, in my opinion, a clear-cut case of resisting and obstructing the officer in the discharge of his duty to serve the petition upon Karen Torpey. Obviously, Lt. Hall and Officer Maness were collaborating. I cannot agree with the suggestion that simply because a police officer has a grasp upon a person, for whose arrest he has a valid process, and has told such person he or she is under arrest, the arrest is so far complete that, while the officer is struggling to subdue the prisoner and remove him or her from the scene of arrest, another person may strike the officer, in the course of the general melee, without being guilty of resisting and obstructing a police officer in the discharge of his duty in violation of G.S. 14-223.
I concur in the majority opinion as to the defendants Oxidine and Marvin Ray Sparrow.