On defendants' petition under 7A-31 for discretionary review of the decision of the Court of Appeals, reported in
Sharp, Chief Justice.*fn1 Justice Brock did not participate in the consideration or decision of this case.
We first consider defendants' contentions:
(1) That the offense of unlawfully resisting, delaying or obstructing a public officer in the discharge of a duty of his office, G.S. 14-223 (resisting), is not a lesser degree of the offense of assaulting a law-enforcement officer while he is discharging or attempting to discharge a duty of his office, G.S. 14-33(b)(4) (assaulting an officer);
(2) That, therefore, Judge Webb erred (a) when he charged the jurors in Cases Nos. 4706 and 4707 that if they were not satisfied beyond a reasonable doubt that Dennis Hardy was guilty of assaulting Officers King and Mylette, they would acquit him of the assault charge and consider whether he was guilty of resisting these officers; and (b) when he gave the same charge in Case No. 4714 in which Ernest was charged with having assaulted Officer Mylette;
(3) That when the jury acquitted defendants of the charges of assaulting Officers King and Mylette and convicted defendants of resisting, the court lacked authority to sentence them for that offense for which they had been neither charged nor convicted in the District Court.
For the reasons hereinafter stated, defendants' contentions with reference to these three cases must be sustained, and the decision of the Court of Appeals that the trial judge's error in submitting the offense of resisting as a lesser degree of the crime of assaulting an officer was favorable to defendant must be reversed.
As the Court of Appeals pointed out in State v. Kirby, 15 N.C. App. 480, 489, 190 S.E.2d 320, 326 (1972), "[T]he charge of resisting an officer * * * and the charge of assaulting a public officer while discharging or attempting to discharge a duty of his office are separate and distinct offenses. * * * No actual assault or force or violence is necessary to complete the offense described by G.S. 14-223."
An examination of the statutes verifies the correctness of the foregoing statement. G.S. 14-223 provides: "If any person shall
willfully and unlawfully resist, delay or obstruct a public officer in discharging or attempting to discharge a duty of his office, he shall be guilty of a misdemeanor punishable by a fine not to exceed five hundred dollars ($500.00), imprisonment for not more than six months, or both."
G.S. 14-33(b)(4) provides in pertinent part that any person who "assaults a law-enforcement officer * * * while the officer is discharging or attempting to discharge a duty of his office" is guilty of a misdemeanor "punishable by a fine, imprisonment for not more than two years, or both such fine and imprisonment."
The legislative history of these two statutes and the fundamental difference in the interests they seek to protect precludes the notion that resisting an officer, a six-month misdemeanor, is a lesser degree of the offense of assaulting an officer, a two-year misdemeanor. The wording of G.S. 14-223, except with reference to punishment, has remained virtually unchanged since its original enactment in 1889. The location of G.S. 14-223 within N.C. Gen. Stats. Ch. 14, Art. 30, entitled "Obstructing Justice," evidences its purpose "to enforce orderly conduct in the important mission of preserving the peace, carrying out the judgments and orders of the court, and upholding the dignity of the law." State v. Leigh, 278 N.C. 243, 251, 179 S.E.2d 708, 713 (1971). G.S. 14-223 is concerned with acts threatening a public officer with injury only insofar as they interfere with the performance of his official duties. Violence or direct force is not necessarily an element of the crime of resisting an officer.
The misdemeanor of assault on a law enforcement officer, now codified as G.S. 14-33(b)(4) (1977 Cum. Supp.) within Chapter 14 under Article 8, Assaults, is a part of the latest rewrite of G.S. 14-33 (1943). These rewrites have created no new offenses as to assaults, but have only provided different punishments for various types of assaults. Common law definitions still govern assaults. State v. Roberts, 270 N.C. 655, 155 S.E.2d 303 (1967). The location and language of G.S. 14-33(b)(4) manifest its purpose to protect the ...