#### STATE *vs.*MALCOLM SHAW.

December 1842.

Where one is indicted for refusing to assist an officer in securing a person whom he has arrested, it is not sufficient to state in the indictment that this was an arrest by *lawful authority;*the authority to arrest must be set forth in the indictment.

Appeal from the Superior Court of Law of Anson county, at Fall Term, 1S42, his Honor Judge Dick presiding. The defendant was tried at that term upon the following indictment.

State of North Carolina, *?*Superior Court of Law— Anson County. $ ' Fall Term, 1841.

The jurors for the State, upon their oath, present that one William Bailey, being arrested by one WilliamH. Gullidge, a deputy sheriff in and for said county of Anson, by lawful authority, on the 10th of April, 1841, the said William Bailey resisted the said officer; and the said William H. Gul-lidge, deputy sheriff as aforesaid, summoned Malcolm Shaw • and Jacob Lockhart to assist in taking in custody the said William Bailey, which said summons of the said William H. Gullidge the said Malcolm Shaw and the said Jacob Lock-hart then and there utterly disregarded and refused to obey the same, in contemptof the law, to the evil example of all others in like case offending, and against the peace and dignity of the State.

And the .jurors aforesaid, upon their oath aforesaid, do further present that Elisha S. Hubbard, an acting justice of the peace in and for the county of Anson aforesaid, on the day and year aforesaid, at and in the county of Anson aforesaid, being in the discharge of his official duty as a justice of the peace, then and there commanded one William H. Gullidge, a deputy sheriff in and for the county of Anson *21aforesaid, to arrest one William Bailey for disorderly conduct, then and there committed in the presence of the said trate, and then and there commanded the said Malcolm Shaw and the said Jacob Lockhart to assist the said deputy sheriff then and there in the said arrest, and that the said Malcolm Shaw and the said Jacob Lockhart, in contempt of the Jaw, and in utter disregard of the said command of the said Elisha S. Hubbard, justice of the peace as aforesaid, then and there utterly refused and neglected to obey the said command, to the evil example of all others in like cases offending, and against the peace and dignity of the State.

On the trial, it appeared in evidence, that the said William Bailey was intoxicated, and swearing and making a loud noise, and threatening to beat some person, in one of the most populous streets in Wadesborough — that he was requested by a magistrate to desist and go home, which here-fused to do, and continued swearing and makingaloud noise in the street; whereupon, the magistrate verbally ordered a deputy sheriff, then present, (W. H. Gullidge) to take said Bailey into custody, and carry him before a magistrate, and Bailey resisted the officer. The deputy sheriff then summoned the defendant and Lockhart, who were present, to assist him in arresting the said Bailey, and carrying him before a magistrate, which they refused to do.

The jury, under the charge of the court, found the defendant Shaw guilty, and judgment having been pronounced against him in pursuance of the verdict, he appealed to the Supreme Court.

*Attorney General*for the State.

No counsel for the defendant.

Daniel, J.

The defendant was indicted for a misde-~* meanor. The *first*count in the indictment charges, that one William Bailey was arrested by William H. Gullidge, a deputy Sheriff of the county of Anson, *by lawful authority ;*that Bailey resisted the officer, who summoned the defendant to assist, and who refused to obey. The *second*count *22chai'ges> that Elislia Hubbard, a justice of the peace, com-William *H.*Gullidge, the deputy Sheriff, to arrest William Bailey, for *disorderly*conduct, *than*and there committed in the presence of the magistrate, and that the justice then and there commanded the defendant to assist the said deputy Sheriff in the arrest, and that the defendant, in disregard of the command of the justice, refused to obey.

The jury, under the charge of the Court, found the defendant guilty on both counts.

We are of opinion, that the first count is so clearly insufficient, that it is not necessary to enquire, whether there was evidence to support it. That count is bad, because the authority to the deputy Sheriff to arrest Bailey, is not set forth in the said count. The statement that the arrest was *by lawful*authority, is not sufficient. The grand jury can only state such facts and circumstances, in the count, as will enable the Court, (who is to decide upon the law,) to see whether they make up a crime, if true, as there stated. The grand jury are *lay gens,*and are not entrusted by the law to pronounce what will constitute a lawful authority, to enable an officer to make an arrest; the Court must see the authority set forth in the count, that it may judge whether it be a lawful' authority or not.

The *second*count charges the defendant with disobedience to the command of Elisha Hubbard, the magistrate, to aid in the arrest of Bailey. Now, without deciding whether this count was sufficiently precise, there was *no*evidence in the cause, that the magistrate ever ordered the defendant to aid the deputy Sheriff in making the arrest of Bailey. It appears from the case, that, after the deputy Sheriff had *been*ordered by the magistrate to make the arrest, Bailey resisted the officer, and then the deputy Sheriff summoned the defendant to aid him in making the arrest. Where the magistrate was, at that time, is not stated. But there is no evidence of any disobedience by the defendant to *his*command.

There must be a new trial.

Per CuRiam. New trial awarded.