(dissenting in part).
I would follow the rule indicated by our former decisions and affirm the sentences which were imposed by the trial court. I agree with the disposition of the other questions which are dealt with in the opinion of Mr. Justice Legge. He cites no decision from any jurisdiction which involved resistance of arrest that is contrary to my view, and I have found none.
The evidence justified the verdict of guilt of the common law offenses of (1) resisting arrest and (2) assault and battery of a high and aggravated nature.
Our former decisions, referred to above, are: State v. Bozven, 17 S. C. 58, in which, upon an indictment containing two counts, verdict of guilt of (1) resisting an officer and (2) assault and battery, was upheld and affirmed on appeal; State v. Shaw, 104 S. C. 359, 89 S. E. 322, in which convic f the defendant of (1) resisting an officer and *513(2) assault and battery of a high and aggravated nature was affirmed, and State v. Robertson, 191 S. C. 509, 5 S. E. (2d) 285, in which the defendant was indicted upon two counts, (1) pointing a pistol at an officer, and' (2) assaulting, obstructing, hindering and opposing the officer in the performance of his duty; the verdict was “guilty of resisting officer of the law, Not guilty of other counts.” The last cited case was reversed for new trial because of an omission from the instructions to the jury, without criticism of, or comment upon, the multiple indictment.
I do not think that the court should ignore these decisions because the point now at issue was not discussed in them. It was clearly involved and the acceptance by bench and bar of trial and conviction upon the separate counts of (1) resistance of an officer and (2) assault upon him, is conclusive to me that there has never been any question in this State of the propriety of multiple counts and convictions in such cases.
To my mind the rule is entirely logical. The person of an officer is of dual aspect. As a private citizen he is entitled to freedom from unprovoked assault upon his person; as an officer, no one has a right to resist him when he undertakes to make a lawful arrest. Thus result two crimes when the resistance of arrest is accompanied by an unlawful assault, and no sound ground for merger appears. Resistance of lawful arrest by an officer is a very serious crime; here it was a one-man rebellion against the authority of the State.
The decisions of neighboring North Carolina reflect the same situation as ours. In State v. Wray, 217 N. C. 167, 7 S. E. (2d) 468, the defendant was convicted of resisting and obstructing officers and of assault with a deadly weapon, under separate criminal statutes. In the earlier case of State v. Dula, 100 N. C. 423, 6 S. E. 89, conviction was affirmed upon an indictment which charged (1) assault with deadly weapons and (2) resisting an officer. In the late case of State v. Mobley, 240 N. C. 476, 83 S. E. (2d) 100, 106, *514the trial in a recorder’s court was upon warrants charging (1) public drunkenness, (2) resisting arrest, and (3) simple assault. The verdict was not guilty of public drunkenness, but guilty of (1) resisting arrest and guilty of (2) simple assault. The conviction was reversed upon the conclusion that the arrest was unlawful. Nowhere in the lengthy opinion was it even hinted that the multiple conviction was improper had the arrest been a lawful one. Instead, the opposite view is indicated in the mandate of the court which includes the following: “Hence, the arrest must be treated as illegal. * * * Therefore, the defendant’s motion for judgment as of nonsuit, both as to the charge of resisting arrest and assault, should have been allowed, and it is so ordered.”
In State v. Scott, 123 La. 1085, 49 So. 715, 716, 24 L. R. A., N. S., 199, 17 Ann. Cas. 400, there is a quotation from United States v. Lowry, Fed. Cas. No. 15,636, 2 Wash. C. C. 169, the report of which is not available to me, in part as follows: “It is not necessary for him (the officer attempting to arrest the defendant) to proceed to- the length of a personal conflict with the defendant; for that would constitute a. distinct offense in the defendant, even though the officer should succeed.” (Emphasis added.)
In most, if not all, of the other States resistance of arrest by an officer is a statutory crime and to constitute the offense the means used must include force, actual or constructive. 67 C. J. S., Obstructing Justice, § (2d) p. 47. In those circumstances there is reason for merger of an assault into the statutory offense of resistance; not so in this jurisdiction where force is not a necessary ingredient of the common law offense of resistance. In the words of United States v. Lowry, supra, the force here used by the defendant constituted a distinct offense. In our old case of State v. Hailey, 2 Strob. 73, it was held that any obstruction of lawful process, whether it be by active means or by the omission of a legal duty, is an indictable offense.
Moss, J., concurs.