State v. Pugh

• Citation: 101 N.C. 737,7 S.E. 757
• Court: United States State Supreme Court of North Carolina
• Decision Date: 05 November 1888
• Parties: State v. Pugh.

7 S.E. 757

(101 N.C. 737)

State

v.Pugh.

Supreme Court of North Carolina.

November 5, 1888

Assault and Battery—Criminal Prosecution—Evidence.

Defendant, a policeman, grasped prosecutor, who was engaged in a fight, and was advancing on his retreating adversary, and bade him consider himself under arrest. Prosecutor did not heed the arrest, but continued the fight, and was in the act of striking his adversary, when he was struck by defendant. Held, that the question whether the officer exercised unnecessary violence towards prosecutor should have been left to the jury.

Appeal from criminal court, New Hanover county; Meares, Judge.

The defendant, Pugh, a policeman in the city of Delaware, was indicted for assault and battery. From a judgment of conviction he appeals.

Du Brutz Cutlar, for appellant. The Attorney General, for the State.

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 light, advancing upon his retreating adversary, one Bailey; that he grasped 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 right, 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 grossly in excess of what was necessary for the purpose, and wanton, he was the judge of the force to be applied under the circumstances, and he would not be guilty of an assault and battery unless he arbitrarily and grossly abused the powers conlided to him; and whether he did or not was an inquiry to be submittedto the jury, under proper instructions from the court. A grossly unnecessary, excessive, and wanton exercise of force would be evidence—strong evidence—of a willful and malicious purpose; but the jury ought not to weigh the conduct of the officer, as against him, in "golden scales." The presumption is he acts 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. MeNinch, 90. C. 696,...