Golden v. State
| Decision Date | 23 March 1870 |
| Citation | 1 S.C. 292 |
| Parties | JOSEPH GOLDEN, PLAINTIFF IN ERROR, v. THE STATE OF SOUTH CAROLINA, DEFENDANT IN ERROR. |
| Court | South Carolina Supreme Court |
On the trial of an indictment for assault and battery against an officer of the police force, it is not error for the Judge to refuse to charge the jury that, " if the defendant was engaged in the execution of his duty, and the assault charged was committed in its discharge, then he is excused, and should be found not guilty."
Nor where the evidence tends to prove an excess of force used, is it error for him to charge that, " if the defendant, as an officer of police, acted in good faith, without malice passion, or ill will, but simply with intent to do his duty and secure " the prosecutor," and not to injure him, then he is excused, and should be found not guilty."
The amount of force which an officer may lawfully use in making an arrest is so much as is necessary to effect his object and where he is charged with having exceeded that limit, the jury must judge of the necessity, not the officer. If the amount of force used is more than the occasion requires, he is criminally liable for the excess.
Proof that he did not intend to commit an assault and battery will not excuse an officer, who, in making an arrest, exceeds the limits of his authority by using more force than the occasion called for.
BEFORE CARPENTER, J., AT CHARLESTON, JUNE TERM, 1869.
This case was brought up by writ of error from the Circuit Court for Charleston County. It was an indictment against the plaintiff in error for an assault and battery, alleged to have been committed upon Christopher H. Suhrstedt. The bill of exceptions states:
" And the State, to maintain and prove the issue on its part, gave evidence tending to prove that the defendant, Joseph Golden, a member of the police force of the city of Charleston, did, on the 25th day of December, 1868, in the city of Charleston, assault one Christopher H. Suhrstedt, of the city of Charleston, and struck him (said Suhrstedt) several severe blows with his policeman's club, upon the head and arm, by means of which his (said Suhrstedt's) arm was broken.
And the defendant, to maintain and prove the issue on his part, gave evidence tending to prove that the defendant is a member of the police force of the city of Charleston, and was, at the time of doing the acts complained of, on duty as such. That he was on King Street, in the city of Charleston, when he saw private McMahon, of the police force, attempting to lead by the bridle, toward the guard house, the horse attached to the wagon of said Christopher H. Suhrstedt, informer in this case; that said Suhrstedt was in the wagon, sitting on the seat, " crazy drunk," and pulling the reins with all his might; that the horse had stopped, and was restless, and swaying about from the effect of the strain upon the reins; that the defendant, seeing the difficulty of getting said Suhrstedt, who was then a prisoner, along, stepped to the wagon, and endeavored to get into it to loose the reins, secure said Suhrstedt, and assist in taking him to the guardhouse; that, as he stepped upon the wagon, the horse swung round towards him, cramping the wagon and catching his leg between the wheel and wagon box, and holding him fast; that, in this position, the defendant called to the said Suhrstedt twice to " loose the reins," so that he could get free from the wagon, but his calls were disregarded; that the defendant then, for the sole purpose of freeing himself from his perilous position, reached over with his club and struck said Suhrstedt a light blow on his arm or hand, whereupon he, said Suhrstedt, loosed one of the reins, and the defendant got free of the wagon wheel and got into the wagon; that the defendant then seized hold of the reins, which were still in the hands of said Suhrstedt, to take them from him; that, at this time, another member of the police force got into the wagon, and he, with the defendant, threw said Suhrstedt, who was still resisting, down in the wagon, and held him there, and thus, with his horse and wagon, took him to the guard house; that no blow was struck said Suhrstedt at all, but the one described, and in the manner described, and only sufficient force used to take him to the guard house; that said Suhrstedt was tried before the Mayor's Court and fined ten dollars; that, during the arrest of said Suhrstedt, the defendant acted in good faith and in the exercise of his office, without malice, passion, or ill will, and without any intention to injure said Suhrstedt in any way; that said defendant has been a member of the police force for three years, and has always sustained the highest character as a discreet and prudent officer; that a slight blow upon the arm suspended, or a fall upon it, will break it.
The testimony on both sides being closed, the defendant prayed the Court to instruct the jury in the following particulars:
1. That if the defendant, as an officer of the police force of the city of Charleston, was engaged in the execution of his duty, and the assault charged was committed in their discharge, then he is excused, and should be found not guilty.
2. That if the defendant, as an officer of the police force of the city of Charleston, used force upon the prosecutor, (Suhrstedt,) to secure him as a prisoner, and used only proper and sufficient force for that purpose, then he is excused, and should be found not guilty.
3. That if the defendant, as an officer of police, acted in good faith, without malice, passion, or ill will, but simply with intent to do his duty, and secure the prisoner, (Suhrstedt,) and not to injure him, then he is excused, and should be found not guilty."
But the Court rejected the first and third sections of the instructions prayed for by the defendant, and adopted the second, to which refusal to charge the defendant then and there excepted, before the jury withdrew from the bar.
The jury found the defendant guilty, and the Court sentenced him to pay a fine of one hundred dollars, or, in default thereof, to be imprisoned four months.
Corbin , for plaintiff in error.
The question to be considered is: Did the Court err in refusing to charge as requested?
1. It can scarcely be a question that if the defendant, as an officer of police authorized to make arrests, found it necessary to forcibly place his hand upon Suhrstedt, to secure him as a prisoner, this cannot be deemed an assault.
If he " was engaged in the execution of his duty," he must be sustained. He is subject to arrest for not doing his duty.-1 Bish. Crim. Law, §§ 537, 538, 539, and cases cited.
The Court erred in refusing the third request to charge.
There can be no offense in law where none is intended. If the injury to Suhrstedt (the excessive force) was not intended but accidental, the defendant cannot be guilty.
To constitute a crime, the act and intent must combine.-1 Bish. Crim. Law, §§ 364, 365, 366, and cases cited.
Chamberlain , Attorney General, for defendant in error.
( a .) The correct rule of law, as shown by the authorities, may be stated thus: Any person who is authorized to use force may use so much force as may be necessary to accomplish the legitimate purpose for which such authority is given; and, if he exceeds that limit, he is criminally liable for such excess.
( b .) This instruction was substantially and sufficiently given in the second instruction asked for and granted.
( c .) To constitute the offence of assault, or assault and battery, the force used must be unlawful.
" Any violence which, from the relations of the parties, or otherwise, one has the right to inflict, is not deemed an assault." -2 Bish. Crim. Law, § 58.
This proposition assumes that the person goes no further in the use of force than the law allows: -2 Bish. Crim. Law, § 58.
( d ) The force employed must be duly proportioned to the necessities of the case.- State vs. Quin , 3 Brev. 515.
In the latter case, the motion for a new trial was refused, on the ground that, although the prosecutor gave the first blow, yet this did not justify an enormous battery; nor, indeed, any, beyond the bounds of self-defence. " On both points," say the Court, " there seems to be some doubt as to the facts; it was, therefore, a proper case for the jury; and, although the defendant has not been guilty of a very great offence, he is not entitled to a new trial."
See, also, Hannen vs. Edes , 15 Mass. 346. This case went off on a question of pleading; but the doctrine now contended for is constantly assumed, admitted and asserted, that, when the force used is excessive, or out of due proportion to the offence committed or the duty to be performed, the party so exceeding is liable therefor.
To the same effect, vide 1 Russell on Crimes, 755, where the cases in which the use of force may be justified are limited to cases in which the force used is, in manner and extent, " proper in such circumstances."
If a parent, in chastising his child, exceed the bounds of moderation, and inflict cruel and merciless punishment, he is a trespasser, and liable to be punished by indictment.- Johnson vs. The State , 2 Humph. 283; 1 Hawk. P. C., c. 60, § 23, and the numerous authorities there cited.
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