#### STATE v. ANDREW JUNE FAULKNER.

(Filed 9 March, 1955.)

1. Arrest § 8: Criminal Law § 56—

A warrant which charges that defendant “unlawfully and wilfully, did resist, delay or obstruct a public officer in discharging or attempting to discharge a duty of his office . . .” is insufficient to charge the offense of resisting an officer, and defendant’s motion in arrest of judgment must be allowed.

2. Indictment and Warrant § 9—

The use of the disjunctive “or” instead of the conjunctive “and” is disapproved.

3. Indictment and Warrant § 13: Criminal Law § 56—

A defect appearing in a warrant or hill of indictment can be taken advantage of only by motion to quash or by motion in arrest of judgment, and may not be presented by motion to nonsuit.

4. Criminal Law § 79—

An assignment of error brought forward in the brief but in support of which no argument is stated or authority cited upon any germane ground, is deemed abandoned. Rule 28, Rules of Practice in the Supreme Court.

5. Criminal Law § 53b—

An instruction susceptible to the construction that defendant’s evidence must raise a question as to his guilt beyond a reasonable doubt, must be held for prejudicial error.

6. Criminal Law § 81c (2) —

An erroneous instruction on the burden of proof is not corrected by prior and subsequent correct instructions upon the point.

*6107. Criminal Law § 56—

The legal effect of arresting the judgment is to vacate the verdict and sentence, and the State may thereafter proceed upon a new and sufficient warrant or bill of indictment if it so desires.

Barnhill, C. 1., and Devin, J., took no part in the consideration or decision of this case.

Appeal by defendant from *Glarhson, J.,*August Term 1954 of UNION.

Criminal prosecution upon a warrant and bill of indictment, wbicb charges, without objection, were consolidated for trial.

E. L. Dutton, a member of the State Highway Patrol, made a complaint under oath to the deputy clerk of the Recorder’s Court of Union County that on 25 April 1954 “E. L. Dutton, S. H. P., . . . unlawfully and wilfully, did resist, delay or obstruct a public officer in discharging or attempting to discharge a duty of his office . . .” The warrant issued upon the complaint commanded the arrest of June Faulkner, the defendant. On this warrant the defendant was tried in the Recorder’s Court, and from a judgment of imprisonment there he appealed to th© Superior Court, where he was tried *de novo.*

The bill of indictment charged the defendant Andrew June Faulkner on 24 April 1954 with feloniously assaulting E. L. Dutton with a deadly weapon, to wit: a knife, with felonious intent to kill and murder E. L. Dutton and inflicting upon him serious injuries not resulting in death by cutting him about the head, face, body and limbs.

Plea of Not Guilty. Verdict guilty as charged. Judgment: imprisonment in the common jail of the county for a period of three to four years, and assigned to work the public roads.

The defendant appeals, assigning error.

*Harry McMullan, Attorney General, and Ralph Moody, Assistant Attorney-General, for the State.*

*W. B. Nivens for Defendant, Appellant.*

Parker, J.

In this Court the defendant made a motion for arrest of judgment on the charge in the warrant upon the alleged ground that the warrant is void, because in the complaint attached to the warrant Dut-ton’s name is written, where the defendant’s should have been.

In the recent case of *S. v. Scott, ante,*178, 84 S.E. 2d 654, an indictment charging that the defendant did “resist, delay and obstruct a public officer in discharge and attempting to discharge the duty of his office . . .” was held insufficient to charge the offense of resisting an officer. Upon the authority of that case we hold that the warrant here does not charge the offense of resisting an officer, that the motion in arrest of judg*611ment raises tbe question for decision, and it is ordered that tbe judgment be arrested.

Therefore, it is not necessary for us to decide wbetber tbe warrant is void on tbe ground alleged by defendant. On tbis point see *S. v. Hammonds, ante,*226, 85 S.E. 2d 133, and tbe cases therein cited.

Tbe use of tbe word “or” in tbe warrant, to wit: “resist, delay *or*obstruct a public officer in discharging *or*attempting to discharge, etc.,” instead of tbe word “and” is bad pleading. *S. v. Williams,*210 N.C. 159, 185 S.E. 661; 42 C.J.S., Indictments and Informations, Sec. 101.

Tbe defendant assigns as error tbe failure of tbe lower court to allow bis motion for judgment of nonsuit. Tbis exception is brought forward by tbe defendant, but in support of it no reason or argument is stated or authority cited, except argument that tbe warrant is void. We have said in *S. v. Tola,*222 N.C. 406, 23 S.E. 2d 321, “a defect appearing in a warrant or bill of indictment can be taken advantage of only by motion to quash or by motion in arrest of judgment.” It would seem that tbe defendant by virtue of Rule 28, Rules of Practice in tbe Supreme Court, 221 N.C. 544, has abandoned bis exception as to tbe insufficiency of tbe evidence to carry tbe case to tbe jury.

Tbe defendant assigns as error tbis part of tbe charge: “If tbe defendant’s evidence raised a reasonable doubt as to bis guilt or if such evidence caused to linger in the minds of tbe jury from tbe original presumption of innocence *beyond*a reasonable doubt as to bis guilt or, if upon all tbe evidence, tbe jury entertained a reasonable doubt as to bis guilt, tbe defendant is entitled to a verdict of not guilty, although tbe defendant’s evidence may not have *justified*the jury of tbe matters and justifications or excuse.” (Italics ours.)

It is evident that tbe trial court in tbis part of its charge intended to quote what we said in *S. v. Carver,*213 N.C. 150, 195 S.E. 349, which has been quoted with approval in *S. v. Cephus,*239 N.C. 521, 80 S.E. 2d 147. Tbe words used in tbe charge are tbe same as those in tbe *Carver Case*with these exceptions: one, in the charge tbe word “beyond” is inserted; two, in tbe charge tbe word “justified” is used instead of “satisfied,” and three, tbe charge used tbe words, “of tbe matters and justifications or excuse,” when tbe Court’s words were “of matters in justification or excuse.”

Just before tbe part of tbe charge excepted to above tbe trial court correctly charged as follows : “E ow, there is no burden on tbe defendant at all in tbis case. Tbe burden rests on tbe State to satisfy you from tbe evidence and beyond a reasonable doubt as to all of tbe elements.” But when the judge went on to charge that if tbe defendant’s “evidence caused to linger in the minds of tbe jury from the original presumption of inno*612cence beyond a reasonable doubt as to Ms guilt” be would be entitled to a verdict of acquittal, it would seem that those words meant that tbe defendant’s evidence must raise not a reasonable doubt, but beyond a reasonable doubt as to bis guilt, before be could be acquitted. That, of course, is not tbe law and tbe error is prejudicial. *S. v. Cephus, supra.*Tbe statement of tbe law correctly before and later in tbe part of tbe charge assigned as error, except as to tbe unfortunate use of tbe word “justified” instead of “satisfied,” does not cure tbe error. *S. v. Stroupe,*238 N.C. 34, 76 S.E. 2d 313.

For error in tbe charge, there must be a new trial in tbe case of a felonious assault.

In tbe case of resisting arrest tbe legal effect of arresting tbe judgment is to vacate tbe verdict and sentence, and tbe State may proceed against tbe defendant, if it so desires, upon a new and sufficient warrant or bill of indictment. *S. v. Scott,*237 N.C. 432, 75 S.E. 2d 154; *S. v. Sherrill,*82 N.C. 695; 15 Am. Jur., Criminal Law, Sec. 441.

It is therefore ordered.

In tbe Resisting an Officer Case — Judgment Arrested.

In tbe Felonious Assault Case-New Trial.

Babilhill, 0. J., and Deven, J., took no part in tbe consideration or decision of this case.