dissenting:
A corollary to the rule that a valid warrant under G.S. 14-223 must allege at least in a general way the manner in which the accused obstructed the officer (see State v. Wiggs, 269 N.C. 507, 153 S.E. 2d 84, and cases cited therein), is that the State must prove its case according to its allegations. Here, defendant was not charged with physically obstructing the officer in any manner, nor was he charged with delaying the officer’s investigation by means of continuous loud talking. The only allegations in the warrant as to the manner in which defendant delayed or obstructed the officer is that he did so by language he directed at the officer and by what he said to Blount. When the evidence in this case is related to the allegations in the warrant, I find no more than that defendant made statements to the effect that Blount did not have to go with the deputy, which was correct (State v. McGowan, 243 N.C. 431, 90 S.E. 2d 703; State v. Mobley, 240 N.C. 476, 83 S.E. 2d 100), and that Blount *207should “give Mm five,” the meaning of which was unclear. (The officer testified he did not know what these words meant, that he thought they meant “give him a fist”; defendant testified he referred to the Fifth Amendment.) If it would not have been a crime for Blount to refuse to talk to the officer (Miranda) or to go with him (McGowan and Mobley, supra), it is difficult to see how it is a crime for defendant to so advise him. There was plenary evidence that defendant directed insulting remarks toward the officer. While certainly offensive and in poor taste, these did not in themselves constitute a violation of G.S. 14-223. On this record I find the evidence simply too thin to support a jury finding that anything defendant said, either to the officer or to Blount, actually resulted in delaying or obstructing the officer in the performance of his duties. The officer’s testimony that he was “not able to talk to Blount because of Phillip Leigh” and that he “couldn’t get any information from Blount because of Leigh,” was merely the officer’s conclusion as to the very question the jury was called upon to decide. When the factual basis for that conclusion was more closely examined, particularly in the clearer light cast by cross-examination, the officer testified : “After I went to Leigh’s car, it was maybe a minute before Blount got out of the car. . . . Blount at no time refused to go with me. He just said I am not going anywhere, but he cooperated nicely. He went right on with me. He was only sort of hesitant.”
First Amendment problems aside, it is possible a case may arise in which conviction under G.S. 14-223 should be sustained where violation consisted in the defendant’s directing insulting remarks to the officer or in advising another of his rights while in presence of the officer. I do not think it proper to do so where the evidence that such conduct actually effected a delay or obstruction of the performance of the officer’s duties is no more substantial than is disclosed on the present record. It appears to me that defendant was arrested and convicted, not because he obstructed or delayed the officer, but because he offended him. I think nonsuit should have been allowed.