Opinion
Filed 7 May, 1958.
Arrest and Bail 3: Criminal Law 79: Narcotics 2: Searches and Seizures 1 — Where the victim of an assault and robbery points out defendant to an officer as being one of his assailants, the officer has the duty to arrest defendant, G.S. 15-40, G.S. 15-41, and to search his person, and upon a separate prosecution of defendant for possession of a narcotic drug, G.S. 90-88, based upon marijuana cigarettes discovered on the person of defendant upon the search, the evidence thus obtained is competent upon the court's finding that the officer had reasonable ground to believe that a felony had been committed, notwithstanding defendant's conviction of the lesser offense in the prior prosecution for assault and robbery.
APPEAL by defendant from Seawell, J., August Criminal Term 1957 of CUMBERLAND.
Attorney General Patton, Assistant Attorney General Bruton for the State.
Seavy A. Carroll for defendant, appellant.
This is a criminal proceeding tried upon an indictment charging that the defendant did unlawfully, wilfully, and feloniously have in his possession and under his control a narcotic drug, to wit, marijuana, in violation of G.S. 90-88.
The State's evidence discloses that about 3:30 a.m. on 28 July 1957, Police Officer C.B. Morrison, of the City of Fayetteville, was investigating a case of assault and robbery. He was accompanied at the time by the victim of the assault. As they were proceeding along Washington Avenue in the City of Fayetteville, they observed the defendant walking along the street. The victim of the assault identified the defendant as being one of the participants in the assault on him. The defendant was immediately arrested and as a result of a search then made of his person, it was found that he had in his possession a number of marijuana cigarettes.
The jury returned a verdict of guilty as charged, and the defendant appeals, assigning error.
The defendant argues that the officer had no right to search him because the arrest was made without a warrant and was, therefore, illegal and void. This constitutes the defendant's assignment of error No. 1.
When the defendant challenged the legality of his arrest in the trial below, the court, in the absence of the jury, heard the evidence relating to the circumstances under which the arrest was made, and found as a fact that the officer had reasonable grounds to believe that a felony had been committed.
If the officer had the right to arrest the defendant, the defendant concedes he had the right to search his person, and items found in the search would be admissible in evidence against him.
We hold that, upon the evidence adduced in the trial below, the officer not only had the right but the duty to arrest the defendant on the occasion in question, when the victim in the assault and robbery charge pointed out the defendant to the officer as being one of his assailants. G.S. 15-40 and G.S. 15-41. The defendant was thereafter indicted for assault and robbery, tried and convicted of the lesser offense.
A careful examination of the remaining exceptions and assignments of error leads us to the conclusion that no error prejudicial to the defendant was committed in the trial below.
No Error.