We believe that because of the variety of charges against each defendant, clarity requires that we discuss the appeal of each defendant separately.
Dennis Hardy was charged in case No. 76CR4704 with threatening Officer King and in No. 76CR4710 with threatening Officer Hall. By his assignment of error No. 6, he challenges the sufficiency of the court’s instruction to the jury, contending that the court failed adequately to apply the law to the facts. He correctly concedes that the charge is correct as to the elements of the crime of communicating a threat. We are of the opinion that the trial court adequately explained the law as it related to the facts of the case, having sufficiently recapitulated the evidence and stated the contentions of the appellant. While we would not adopt the charge as model, we think the jury was fully apprised of the law as it applied to the facts and could not have been misled. This assignment of error is overruled.
In case No. 76CR4706, Dennis Hardy was charged with assaulting Officer King, and in case No. 76CR4707, he was charged with assaulting Officer Mylette. He was convicted, in each case, of resisting arrest, the trial court having charged the jury that if they found the defendant not guilty of assaulting a police officer they would then determine whether he was guilty of resisting arrest. By assignments of error Nos. 5 and 9, appellant contends that the court erred in charging that resisting arrest is a lesser included offense of assault on a police officer. Under the facts of this case, we are constrained to agree. After instructing the jury with respect to the charge of assaulting a police officer while the officer was attempting to discharge a duty of his office, a violation of G.S. 14-33 (b) (4), the court instructed that if the jury did not find the defendant guilty of that offense, they should determine whether he was *728guilty of resisting arrest and “ . . . that differs from assaulting an officer in the performance of his duties in that you need not be satisfied beyond a reasonable doubt that the defendant Dennis Hardy assaulted C. R. King, but you would have to be satisfied beyond a reasonable doubt that he resisted, delayed, or obstructed C. R. King while C. R. King was making an arrest.” Substantially similar instructions were given in No. 76CR4707 in connection with the charge of assaulting Officer Mylette. We do not discuss the question of whether resisting arrest can, under certain circumstances, constitute a lesser offense of assaulting a police officer in the performance of his duties, nor do we think it necessary to discuss the applicability, if any, of State v. Summrell, 282 N.C. 157, 192 S.E. 2d 569 (1972), to the facts here. Suffice it to say that in this case, the evidence clearly shows that if the defendant did resist arrest it was by the same means as were charged in the assault case. Evidence of resisting arrest by any other means is completely lacking, and defendant was not entitled to the charge given.
While it is our opinion that the court erred in charging on resisting arrest, we do not perceive prejudice to the defendant. As Justice Huskins said in State v. Thacker, 281 N.C. 447, 457, 189 S.E. 2d 145, 151 (1972), “[i]n legal fiction, if not in fact, the jury has acquitted” defendant on the assault charge which carries a maximum penalty of a fine and imprisonment for 2 years, and convicted him of an offense carrying a maximum penalty of a fine and 6 months imprisonment. We think the principles enunciated in State v. Thacker, supra, and State v. Stephens, 244 N.C. 380, 93 S.E. 2d 431 (1956), are applicable here. Therefore, appellant’s convictions and sentences in Nos. 76CR4706 and 76CR4707 will not be disturbed.
The two remaining charges against Dennis Hardy are No. 76CR4708, assaulting Officer Hall, and No. 76CR4709, resisting Officer Hall, in his attempt to arrest Ernest Hardy. These two offenses were submitted to the jury in the same manner. The jury was instructed that they could find the defendant guilty of assaulting Officer Hall or not guilty, and if they found him not guilty of that offense they would then consider whether he was guilty of resisting arrest. Appellant assigns this treatment by the court as error.
In State v. Kirby, 15 N.C. App. 480, 489, 190 S.E. 2d 320, 326, appeal dismissed, 281 N.C. 761, 191 S.E. 2d 363 (1972), this Court said:
*729“We further hold that the charge of resisting an officer (of which the defendant was acquitted in district court) and the charge of assaulting a public officer while discharging or attempting to discharge a duty of his office are separate and distinct offenses and that the trial judge did not err in failing to ‘merge’ them. See State v. Overman, 269 N.C. 453, 153 S.E. 2d 44 (1967). No actual assault or force or violence is necessary to complete the offense described by G.S. 14-223. State v. Leigh, 278 N.C. 243, 179 S.E. 2d 708 (1971). ...”
However, where the warrants charge the same conduct and the evidence clearly shows that “no line of demarcation between defendant’s resistance of arrest and his assaults upon the officer could be drawn,” State v. Summrell, supra, at 173, 192 S.E. 2d at 579, the assaults being the means by which the resistance was accomplished, the State must elect between the duplicate charges. Id., See also State v. Midyette, 270 N.C. 229, 154 S.E. 2d 66 (1967).
Here, the warrant in No. 76CR4708 charged that the defendant did “assault and strike Randy E. Hall, a law enforcement officer of Havelock Police, by fist fighting the officer.” The warrant in No. 76CR4709 charged that defendant resisted, delayed, and obstructed Officer Hall “by fighting officer.” The evidence was uncontradicted that if defendant was guilty of resisting, obstructing, or delaying the result was accomplished by the very same acts as constituted the alleged assault on Officer Hall. These were duplicated charges, and under State v. Summrell, supra, the offenses could not be submitted so as to convict defendant of both. Generally, the State should elect as to which charge it would submit to the jury. State v. Summrell, supra. In the case sub jud.ice, however, the trial court submitted the charges within the context of greater and lesser offenses, i.e., the jury was instructed that they could find defendant guilty of assaulting Officer Hall or guilty of the lesser included offense of resisting arrest, or not guilty. Thus, the jury was instructed so as to convict defendant of one or the other charges but not of both. Therefore, the double jeopardy rationale of Summrell has no application to the present case. Any error the court made in this portion of the charge could not have prejudiced defendant since the jury convicted him only of the offense carrying the lesser punishment. Accordingly, the judgment as to resisting arrest will stand.
*730Ernest Hardy was charged with threatening Officer Hall (No. 76CR4711) and Officer Mylette (No. 76CR4713). He contends that the trial court’s instructions with respect to these charges were not sufficient. His arguments and contentions are the same as those raised by Dennis Hardy. We find the charge adequate and overrule this assignment of error.
Ernest Hardy was also charged with assaulting Officer Mylette (No. 76CR4714). As to this charge, the trial court instructed the jury that if they found him not guilty of that charge they should determine whether he was guilty of resisting Officer Mylette upon substantially similar instructions as those given in Dennis Hardy’s two charges of assault. For the reasons assigned there, this conviction will not be disturbed.
Ernest Hardy was also charged with assaulting Officer Hall (No. 76CR4715) and resisting Officer Hall (No. 76CR-4712). The language of the warrants was the same — “fist fighting” and “fighting.” The evidence clearly showed that if he resisted he did so by the same means, and only those, that he used in the assault. The charges were merged, and the trial court instructed the jury to find defendant guilty or not guilty of assault, and if they found him not guilty of assault, to determine his guilt or innocence of the resisting charge. The jury found him guilty of resisting the officer. We see no necessity for repeating the discussion applicable to the same charges against Dennis Hardy. For the reasons stated there the conviction for resisting the officer, the conviction in No. 76CR4712, will stand.
Both defendants assign as error the court’s charge on self-defense. The charges on self-defense was applicable only to the assault charge of which both were acquitted. These assignments are, therefore, overruled.
As to Dennis Hardy:
No. 76CR4704 — Threatening Officer King — No error.
No. 76CR4706 — Assaulting Officer King — Convicted of resisting Officer King — No error.
No. 76CR4707 — Assaulting Officer Mylette — Convicted of resisting Officer Mylette — No error.
No. 76CR4709 — Resisting Officer Hall — No error.
*731No. 76CR4710 — Threatening Officer Hall — No error.
As to Ernest Hardy:
No. 76CR4711 — Threatening Officer Hall — No error.
No. 76CR4712 — Resisting Officer Hall — No error.
No. 76CR4713 — Threatening Officer Mylette — No error.
No. 76CR4714 — Assaulting Officer Mylette — Convicted of resisting Officer Mylette — No error.
Judges Parker and Clark concur.