State v. Stalcup

• Decision Date: 31 December 1841
• Citation: 2 Ired. 50,24 N.C. 50
• Court: North Carolina Supreme Court
• Parties: STATE v. WILLIAM STALCUP AND OTHERS.

2 Ired. 50

24 N.C. 50

STATE

v.WILLIAM STALCUP AND OTHERS.

Supreme Court of North Carolina.

December Term, 1841.

An officer, who has arrested a prisoner under a State warrant, has a right to tie him, if he believes it necessary to secure him, and of this necessity he is himself the sole judge.

But if the officer is guilty of a gross abuse of this authority, that is, if he does not act honestly according to his sense of right, but, under the pretext of duty, is gratifying his malice, he is liable to indictment, and the Jury must judge of his motives from the facts submitted to them.

In such a case those who are commanded by the officer to assist him and do assist him, are justified, though the officer himself has abused his authority, provided they acted bona fide in obedience to this command, and not to gratify his or their malice.

The case of the State v Pender grass, 2 Dev. and Bat. 365, cited and approved.

This was an appeal from the judgment of the Superior Court of Law of Macon County, at Spring Term, 1841, his Honor Judge BATTLE presiding. The defendants were indicted for an assault and battery on the prosecutor. It appeared that the defendant, William Stalcup, being a constable in the county of Macon, arrested the prosecutor under a State warrant, and, with the aid of the other defendants, who were commanded to assist him, tied the prosecutor and took him before a magistrate. A good deal of testimony, which is stated at large in the case, was introduced on the trial, to show the circumstances, under which the arrest was made and the tying ordered. It is deemed unnecessary to repeat them, as the only questions in this Court arose upon the instructions given to the Jury in the Court below, which are stated in the opinion of this Court.

Francis, for the defendants , cited 4 Black. Com. 300. Hawk. P. C. p. 130. s. 23. Bac. Ab. Tit. Ass. and Bat. Let. C. p. 155; and Branch v Bradley, 2 Hay. 53.

J. G. Bynum, Solicitor, for the State , cited 1 Saund. Plead. & Ev. 445, 691.

GASTON, J.

In this case the counsel for the defendants prayed the Court to instruct the Jury, that an officer, having a State's warrant to arrest an individual for an escape, had a right to tie the prisoner, if he deemed it necessary; that the officer was the sole judge of this necessity; and that he was not answerable if he used no more force than was requisite to tie him. The Court declined to give this instruction, but instructed the Jury, that the officer had a right to use such means as were necessary and proper to secure his prisoner, therefore might tie him if it were necessary so to do; but if the Jury were satisfied from the evidence that a man of...