State v. . Pugh

Merrimon, J. The evidence, certainly parts of it, tended to prove that the defendant was a policeman in the line of •his duty; that he found the prosecutor engaged in a fight, advancing upon his retreating adversary, one Bailey; that he grapsed the prosecutor on the shoulder while he was so ■engaged, and bade him “consider himself under arrest”; that the latter cast his eye at him but did not heed the arrest or desist from the fight, but went' right on striking at Bailey, and was in the act of striking him when he struck the prosecutor with his club — one usually carried by policemen— and that the blow was given to prevent him from striking Bailey. It was the duty of the defendant to interfere and suppress the fight, and if need be, he might, in good faith, strike a reasonable blow for the purpose. While he had no authority to strike an unnecessary blow, or one greatly in excess of what was necessary for the purpose, and wanton, he was the judge of the force to be applied under the circumstances, *740 and he would not be guilty of an assault and battery unless he arbitrarily and grossly abused the power confided to him, and whether he did or not was an inquiry to be submitted to the jury, under proper instructions from the Court. A grossly unnecessary, excessive and wanton exercise of force would be evidence — strong evidence — of a wilful and malicious purpose, but the jury ought not to weigh the conduct of the officer as against him in “gold scales”; the presumption is he acted in good faith. This is the rule applicable in such cases as the present one, as settled in State v. Stalcup, 2 Ired., 50; State v. McNinch, 90 N. C., 696, and the cases there cited. So also, State v. Bland, 97 N. C., 438. The Court instructed the jury “ that if they believed the evidence of the witnesses, even upon the testimony of the defendant himself, the defendant was guilty, because the prosecutor offered no resistance to the officer, and there was no necessity for the blow.” But there was evidence that the prosecutor persisted in the fight after and while the defendant had. hold of him, and he persisted in it until he was forced to desist by the blow. This was evidence of resistance to the officer, and of the necessity to exercise force to suppress further violence. In view of the evidence the case should have been submitted to the jury substantially as indicated above. Error.