dissenting. The State’s evidence tends to show the following facts. J ess Broome, a police officer of the Town of Dallas dressed in his uniform with badge and pistol, saw the defendant around 9 :30 or 10 p.m. at the Dallas Grill, a public restaurant. The defendant was staggering around drunk, and cursed Broome and the brother of the Chief of Police of Dallas, who was talking to Broome. Broome asked the defendant to hush cursing. The defendant replied if Broome got out of his car, he, the defendant, would cut his head off, and for Broome “to call the County” — manifestly referring to the County Law Enforcement Officers. Broome did not arrest the defendant then, but “called the County” for help. Broome then went to the courthouse, called the Dallas Chief of Police A. R. Eidson, went to Eidson’s home, picked him up, came back up town, and found the defendant at a service station, a public place. Chief Eidson had on a white shirt and was in civilian clothes, but had his badge on his shirt and a gun. The officers had no warrant. The officers got out of the car, and Chief Eidson told the defendant he was under arrest for being drunk. Chief Eidson took hold of his left arm, Broome his right arm, and started to the car. The defendant scuffled around behind the car, and struck Chief Eidson on the head knocking his hat off. He struck at Chief Eidson “a whole lot.” Broome hit the defendant a glancing blow on the head with a blackjack. The defendant told Chief Eidson to shoot him. [John Puett, a witness for the defendant, testified the defendant raised his shirt, and said to Chief Eidson “You yellow bellied s.o.b., let’s see you put a slug in it.”) The officers then seized the defendant, put him in their car and carried him to the county jail. The “scuffle or pulling” between the officers and the defendant lasted about *48915 oi-20 minutes. Upon arrival at the jail the defendant cursed one of the officers there, and later tried to fight another officer there.
The defendant, and one of his witnesses, testified that Chief Eidson told the defendant he was arresting- him for being drunk and disorderly. The defendant testified on cross-examination that one time he went before the Town Board to try to make Jess Broome pay him a debt, and that he had talked to three members of the Board about firing Chief Eidson. The defendant further admitted on cross-examination that he had served a prison sentence for assault with a deadly weapon with intent to kill; had been convicted of speeding and reckless driving; of violating the prohibition law; of carrying a concealed weapon; and probably convicted of an affray. The defendant testified that he knew Chief Eidson was a police officer of the Town of Dallas when he was arrested.
Whether cursing a police officer or addressing scurrilous words to him constitute a breach of the peace for which an arrest may be made without a warrant depends upon the circumstances, involved. Mere impudence will not suffice. Anno. 34 A.L.R. 566; S. v. Moore, 166 N.C. 371, 81 S.E. 693; 4 Am. Jur. Arrest sec. 31; 8 Am. Jur. Breach of Peace sec. 10.
The State’s evidence shows that the defendant cursed Broome in the presence of others, while Broome was sitting in his car on a public street in the Town of Dallas, threatened immediate force to Broome’s person if he got out of his car, and then and there cursed Eidson, brother of the town’s Chief of Police. It is common knowledge such conduct on a public street in the presence of others provokes and incites to immediate violence. If that evidence is accepted as true by the jury, it shows with apodeictic certainty, according to the authorities cited in the majority opinion, that the defendant committed a breach of the peace in Broome’s actual presence, for which offense it was Broome’s duty to arrest the defendant promptly without a warrant. G. S. N. C. 15-39. A policeman has the same authority to make arrests within the town limits as is vested by law in a sheriff. G. S. N. 0. 160-21.
Did Broome’s delay in arresting the defendant make the arrest illegal ? In my opinion, the answer is No, considering the evidence in the light most favorable to the State, as is requisite on a motion for nonsuit.
It is said in 4 Am. Jur., Arrest, sec. 67: “In making an arrest without a warrant for breach of the peace or a misdemeanor, an officer must act promptly at the time of the offense***In order to justify a delay, there should be a continued attempt on the part of the officer or person apprehending the offender to make the arrest; he cannot deffiy for any purpose which is foreign to the accomplishment of the arrest. If an officer sees an affray and calls other officers to his assistance, the fact that the actual arrest is made after the affray is over does not make the arrest without a warrant illegal.***The shortness of the interval does not *490really determine whether the right to make the arrest without a warrant exists, but the delay merely throws light on the question whether the arrest was made as soon as the circumstances permitted.***A delay of half an hour in order to procure help in making the arrest may be reasonable, while a delay of two hours may be unreasonable, especially if the officer meanwhile is doing nothing connected with the arrest.” See also 6 C. J. S., Arrest, p. 590.
In S. v. McClure, 166 N.C. 321, 81 S.E. 458, it is written: “;;-'*;::it is the right of a peace officer to arrest, without warrant, one who assaults him (citing authorities), and the officer did not lose the right in this case because the prisoner had walked off, according to the evidence of one witness, 30 or 40 feet, and to that of another, 50 or 75 yards.”
It is a fair inference from the evidence that Broome knew the defendant had hard feelings against him. The defendant’s admissions of his criminal record, on cross-examination, did not enlarge Broome’s authority, and would not justify an illegal arrest. Larson v. Feeney, 196 Mich. 1, 162 N.W. 275, L.R.A. 1917D 694. However, such admissions permit the reasonable inference that Broome knew the defendant was a man of violence. If Broome had attempted immediately to arrest the defendant for the breach of peace committed in his presence, he would have been “rightfully the aggressor.” S. v. Miller, 197 N.C. 445, 149 S.E. 590. It seems to me most probable, in the light of what happened when the arrest was made, if Broome without aid had made the arrest then and there, he would have had to injure the defendant seriously with gun or blackjack to overcome his resistance. It is also probable that under such circumstances Broome would not have succeeded in making the arrest. The State’s evidence tends to show that Broome’s delay was due solely to Ms seeking the aid of an officer, and that he did not in any way desist from that purpose before the arrest. The defendant’s conduct was not that of a pacific drunk. Such conduct required summary action on Broome’s part, and had not passed when the arrest was made. The offense and the arrest form part of one transaction. The State’s evidence does not show how long Broome was gone in his search for aid, but it would not seem to have been over ten or fifteen or twenty minutes at the most. I think the delay was reasonable, and showed sound judgment on Broome’s part.
The defendant knew that Chief Eidson and Broome were police officers of the Town of Dallas. The fact that Chief Eidson, and not Broome, told the defendant he was under arrest is immaterial. In reality Broome, with Eidson’s aid, made the arrest. Though Eidson said, according to the State’s evidence, he was arresting the defendant for being drunk — the defendant testified Eidson said he was arresting him for being drunk and disorderly — that does not erase the defendant’s breach of the peace, if the *491State’s evidence is believed. State v. Young, 40 Wyo. 508, 281 P. 17. For an offense committed in bis actual presence, an officer is not required to state tbe cause of tbe arrest, since tbe accused is presumed to know tbe cause of wbicb be is arrested. Tbe authority of a private person to make an arrest is more limited than that of am officer. Graham v. State, 143 Ga. 440, 85 S.E. 328, Anno. Cas. 1917A 595; State v. Evans, 161 Mo. 95, 61 S.W. 590, 84 Am. St. Rep. 669; State v. Young, supra; Annos. 42 L.R.A. 673; L.R.A. 1918D, p. 980; 84 Am. St. Rep. 679.
“If tbe official authority of an officer is known to tbe person who is being arrested, it is not essential that be announce it or make known bis intention or purpose before actually apprehending tbe offender.” 4 Am. Jur., Arrest, Sec. 65.
To resist an officer in tbe lawful discharge of bis duties is made a crime at common law and in all jurisdictions by statute. 39 Am. Jur., Obstructing Justice, Sec. 8; 67 O. J. S., Obstructing Justice, Sec. 5. In Edmund Burke’s words “obedience to law is what makes government.”
In my opinion tbe trial court correctly overruled tbe motions for non-suit, and I so vote.
I think there are prejudicial errors in tbe charge for wbicb a new trial should be awarded.
Tbe defendant assigns as error that tbe Court several times in its charge said tbe officers would be justified in making tbe arrest if in tbe officer’s own judgment and opinion tbe defendant was guilty, when tbe Court should have charged -that it was for tbe jury to say whether or not tbe officer bad reasonable grounds to warrant tbe arrest. Tbe defendant supports bis argument by what this Court said in S. v. McNinch, 90 N.C. 695 : “In making an arrest upon personal observation and without warrant, tbe officer will be excused when no offense has been perpetrated, if tbe circumstances are such as reasonably warrant tbe belief that it was (Neal v. Joyner, 89 N.C. 287), and tbe jury must judge of tbe reasonableness of tbe grounds upon wbicb tbe officer acted.” Tbe majority opinion says this “pronouncement is disapproved and withdrawn, as are similar statements based on like facts in subsequent decisions of tbe Court. See S. v. Jenkins, 195 N.C. 747, 143 S.E. 538; S. v. Camphell, 182 N.C. 911, 110 S.E. 86; Sigmon v. Shell, 165 N.C. 582, 81 S.E. 739.” To tbe disapproval of this statement of law, firmly embodied in our decisions, I do not agree.
Tbe majority opinion states: “We think a breach of tbe peace is threatened within tbe meaning of tbe statute (G.S.N.C. 15-39) if the offending person’s conduct under tbe surrounding facts and circumstances is such as reasonably justifies a belief that tbe perpetration of an offense amounting to a breach of tbe peace is imminent,” citing authorities from other jurisdictions. In my opinion that is a restatement, only slightly *492rephrased, of the criticised statement in S. v. McNinch, with this vital omission that the McNinch case rightfully requires “that the jury must judge of the reasonableness of the grounds upon which the officer acted.”
The majority opinion also says: “to justify an arrest on the ground of necessity in order to 'suppress’ a breach of the peace, the conduct of the party arrested must amount to an actual breach of the peace in the presence of the officer making the arrest”; and also states: “a person making an arrest under the authority of G.S. 15-39 must determine, at his peril, preliminary to proceeding without warrant, whether an offense arrestable under the statute is being committed,” (citing in support of the last quoted excerpt S. v. Hunter, 106 N.C. 196, 11 S.E. 366; S. v. McAfee, 107 N.C. 812, 12 S.E. 435; S. v. Rollins, 113 N.C. 722, 18 S.E. 394; and cases from other jurisdictions.)
To say that an officer making an arrest without a warrant under the provisions of G.S.N.C. 15-39 for a breach of the peace being committed in his presence must determine at his peril before making an arrest that a breach of the peace is actually being committed, and to say that if a breach of the peace is threatened, he can act upon probable cause is to my mind an unsound distinction. Such a distinction would in one case make the officer an insurer that an offense had been committed, and in another permit him to act upon probable cause.
The excerpt quoted above from S. v. McNinch, supra, is sound law, is followed by us in later decisions, and is apparently supported by the majority of courts elsewhere “dealing with the exact question.”
In Peru v. U. S., 4 Fed. (2d) 881, it is said: “A mere suspicion is not sufficient upon which to base an arrest for a misdemeanor without a warrant. U. S. v. Slusser (D.C.), 270 F. 818. In Garske v. U. S., 1 F. (2d) 620, 625, we said: 'the proper test, supported by the great weight of authority, by which the case should be decided is, were the circumstances presented to the officers through the testimony of their senses sufficient to justify them in a good faith belief that plaintiff in error was in their presence transporting liquor in violation of law*** ? In other words, was there probable cause for them to so believe, or were the facts sufficient to give rise merely to a suspicion thereof? If the former, the arrest was legal*** If the latter, the arrest was illegal.***” It is true that this case involved the National Prohibition Law, which expressly authorizes summary arrest when any person is found transporting liquor in violation of the act. But it is also true that G.S.N.O. 15-39 expressly authorizes summary arrest for a breach of the peace committed in the officer’s presence. See also Carroll v. U. S., 267 U.S. 132, 69 L. Ed. 543, 39 A.L.R. 790 (opinion by Taft, C. J.).
This decision is criticised in 75 Penn. Law Review 485 et seq. as follows : “It is difficult to see how the Carroll case can be taken as authority *493for tbe proposition that an arrest can be made by a peace officer without warrant for a misdemeanor less than a breach of the peace. Yet the case has been taken to stand for that proposition by some Federal Courts and as so understood has been followed and is cited in dicta where the issue was as to the officer’s presence.” The article in the Penn. Law Review does not criticise this language in the Carroll case: “On reason and authority the true rule is that if the search and seizure without a warrant are made upon probable cause, that is, upon a belief reasonably arising out of circumstances known to the seizing officer***^ search and seizure are valid.”
An article entitled “Arrest without Warrant” in the Wisconsin Law Review (1939) pp. 335, 387 says: “Some jurisdictions hold that the officer must actually know an offense is being committed and would hold him liable in such circumstances. The majority of jurisdictions, however, hold that it is not essential that the officer arresting without a warrant absolutely know that an offense is being committed in his presence, and rule that a lona ;fide belief on his part that it is being committed is enough.”
In my opinion t-he fact that some of the courts were construing statutes which authorize peace officers to arrest without a warrant for all misdemeanors committed in their presence, and in S. v. McNinch, supra, we were interpreting a statute restricted to riots, routs, affrays or other breach of the peace makes no difference. The rationale of the decisions is identical.
I think that these words in S. v. Hunter, supra, (quoted in S. v. McAfee, supra, and referred to in S. v. Rollins, supra) : “but policemen of Asheville must determine, at their peril, preliminary to proceeding without warrant, whether a valid ordinance has been violated within or out of their view,” is in direct conflict with what we had previously said in S. v. McNinch, supra, and what we have repeatedly said later in Perry v. Hurdle, 229 N.C. 216, 49 S.E. 2d 400; Wilson v. Mooresville, 222 N.C. 283, 22 S.E. 2d 907; S. v. Jenkins, 195 N.C. 747, 143 S.E. 538; S. v. Campbell, 182 N.C. 911, 110 S.E. 86; Sigmon v. Shell, 165 N.C. 582, 81 S.E. 739; Brewer v. Wynne, 163 N.C. 319, 79 S.E. 629. Further it seems to be in conflict with the majority of courts elsewhere, which have passed on “the exact question.” In my opinion it is not correct law, and I vote to overrule such statement in the Hunter Case.
Unless our peace officers in arresting without a warrant under G.S.N.C. 15-39 can act upon reasonable grounds or probable cause, as set forth in S. v. McNinch, supra, and subsequent decisions of this Court, a crippling blow will be inflicted upon law enforcement in this State. If officers, who' in lawfully making arrests are “rightfully the aggressors',” are not given reasonable protection in the discharge of their duties, society cannot *494expect or receive fearless and efficient action from them. These decisions afford full protection to the rights of the individual. Men, women and children are also entitled to be summarily protected from the foul language, indecent sight and vile conduct of belligerent drunks upon the public streets and in the public places of our towns and cities, and this they cannot adequately receive if the arresting officer, before making the arrest,, must determine at his peril, whether an offense arrestable under the statute is being committed.
For prejudicial errors in the charge I cast my vote for a new trial.