State v. . Bland

*442 Davis, J., (after stating the facts). We have set out the charge of his Honor fully, because it was insisted by the counsel for the defendant, that being a policeman, clothed with the authority to arrest and detain the person violating the ordinance of the town of Bell’s Ferry, he was the sole judge of the propriety and necessity of carrying him to the place of confinement, and of the necessity of using force to prevent his rescue, and of the extent to which it was necessary, and that the charge of his Honor failed to present to the jury a proper distinction between a homicide committed by a private individual, and one committed by an officer thus clothed with the authority, and charged with the duty of arresting and detaining violators of the law, and invested with the rights, within their discretion, to judge of the necessity and of the mode of confining such violators. Upon a careful review of his Honor’s charge, we are unable to discover any error of the nature complained of, and altogether it presents to the jury the rights and authority of the defendant as an officer, and the extent of his power, in as just and favorable light as he was entitled to. The case of State v. Stalcup, 2 Ired., 50, was relied on by the defendant. In that case it was held, that the officer was justified in tying a prisoner, when it was necessary to secure him, and of the necessity of adopting that mode of securing him, the officer was the judge, but in that case Judge Gaston said: “ He (the officer) will be liable, although ho does not transcend his powers, if he grossly abuse them, and whether he did or not so abuse them, was the proper enquiry to be submitted to the jury. Upon this inquiry, we hold that the instructions should have been * * * that there was an abuse of authority, if the facts testified to convinced the jury that the officer did not act honestly in the performance of duty according to his sense of right, but under the pretext of dutjr, was gratifying his malice, but if they were not so convinced, he did not abuse his authority.” *443 Stalcup was a constable, and indicted for an assault and battery upon the prosecutor, whom he had tied as a mode of securing him, and of the necessity of adopting that mode he was the judge; but it was for the jury to say from the evidence, whether he was acting honestly and from a sense of duty, or under a pretext of duty. The law does not clothe an officer with the authority to j udge arbitrarily of the necessity of killing a prisoner to secure him, or of killing a person to prevent a rescue of a prisoner. He cannot kill unless there is a necessity for it, and the jury must determine from the testimony, the existence or absence of the necessity. They must judge of the reasonableness of the grounds upon which the officer acted, and the charge of his Honor is fully warranted by the cases of State v. Stalcup, supra; State v. McNinch, 90 N. C., 696; and State v. Pendergrass, 2 D. & B., 365; and is a full and clear statement of the law as applicable to the several phases of the testimony in the case. There is no error. Let this be certified. No error. Affirmed.