Sherwood PERRY, Administrator of the Estate of James Perry, Deceased,
v.
C. P. GIBSON.
No. 386.
Supreme Court of North Carolina.
November 20, 1957.*342 Taylor & Mitchell, Raleigh, for plaintiff appellant.
Arendell & Green, Alton T. Cummings, Raleigh, for defendant appellee.
DENNY, Justice.
The plaintiff assigns as error the failure of the trial court to instruct the jury "that the jury and not the defendant is the judge *343 of whether or not the defendant had reasonable grounds to believe that a misdemeanor had been committed in the presence of the defendant."
The court read G.S. § 15-41, as amended by Chapter 58 of the Session Laws of 1955, to the jury, and instructed the jury "that while it is not necessary that a crime, a misdemeanor, or a felony actually has been committed in the officer's presence, in order to justify the officer's making an arrest, it is necessary that the officer have reasonable grounds to believe that an offense has been committed in his presence, in order for him to make a lawful arrest."
The trial judge likewise instructed the jury "that under the laws of this State, a peace officer, that is a police officer, has a right to make an arrest without a warrant if there is a breach of the peace or a threatened breach of the peace in the presence of the officer. * * * To have a breach of the peace there must be a disturbance of public order and tranquility by act or conduct not merely amounting to unlawfulness but tending also to create public tumult and incite others to break the peace. To justify an arrest on ground of necessity to suppress a breach of the peace the conduct of the person arrested must amount to an act or breach of the peace in the presence of the person making the arrest. To justify an arrest in order to prevent a breach of the peace ordinarily there must be at least a threat of a breach of the peace, together with some overt act in attempted execution of the threat."
The court further instructed the jury "that where an officer has the right to make an arrest, that is where there is a breach of the peace in his presence or a threatened breach of the peace in his presence, or if he has reasonable grounds to believe that a misdemeanor has been committed in his presence, where one has in fact been committed or not, if he has reasonable grounds to so believe, then I instruct you that officer making an arrest may meet force with force sufficient to overcome any force offered by the person to be arrested, even to the taking of life, if necessary, and the officer is not required to afford the person arrested an equal opportunity."
The vice of the charge is to the failure of the court to apply the law to the facts in the case (Chambers v. Allen, 233 N.C. 195, 63 S.E.2d 212) and to instruct the jury that the defendant had the right to arrest James K. Perry, without a warrant, at the time in question, if Perry had committed a misdemeanor in his presence, or if the defendant had reasonable grounds to believe that he had committed a misdemeanor in his presence; but the jury and not the defendant must be the judge of the reasonableness of the grounds on which the defendant Gibson acted. State v. McNinch, 90 N.C. 695; State v. Bland, 97 N.C. 438, 2 S.E. 460; State v. Pugh, 101 N.C. 737, 7 S.E. 757; Sigmon v. Shell, 165 N.C. 582, 81 S.E. 739; G.S. § 15-41(a). Cf. State v. Mobley, 240 N.C. 476, 83 S.E.2d 100, in light of the amendment to G.S. § 15-41.
In our opinion, the plaintiff is entitled to a new trial and it is so ordered.
New trial.