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*Note: The following opinion was edited by AudioCaseFiles' staff.
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Durham v. State
199 Ind. 567, 159 N.E. 145
Supreme Court of Indiana, 1927

Martin, J. Appellant, a deputy warden or commissioner of fisheries and game, of the Indiana Department of Conservation, while engaged in the duties of his office, arrested and sought to hold in custody one Charles Long, for a violation of the fish and game law, which violation (taking fish by means of a gill net) appellant claimed had just been committed within his view. . . . Long, after being placed under arrest, resisted, and, with a companion, attempted to escape in a row boat. Appellant, wading out in the water, clung to the boat and ... an exciting struggle or fight in the edge of the lake [ensued]. [Long repeatedly hit appellant on the head and shoulder with an oar. After appellant warned Long several times to stop hitting him with the oar, and that he would shoot him if he did not stop,] appellant shot Long with a revolver and wounded him.

The prosecution was by affidavit in one count charging appellant with unlawfully committing an assault and battery with intent and premeditated malice to kill and murder Long, and, after a trial by jury and a verdict of guilty of assault and battery and assessing a fine of $ 700 was returned, judgment was rendered on the verdict.

Alleged errors, assigned as reasons in support of appellant's motion for a new trial, which was overruled, include the giving of . . . instructions on the court's own motion and in refusing to give a number of instructions requested by appellant. . .

Instruction fifteen was to the effect that, before a defendant can exercise the right of self-defense, he must be free from fault, and that, if by his own unauthorized acts, he brought the assault upon himself, then he cannot claim the right of self-defense against such assault. This instruction, as an abstract proposition of law, is correct, but in the instant case, where the defendant was an officer of the law engaged in carrying out his duties as such, he was entitled to have included in the instructions a further statement of the law applicable to the exercise of self-defense by an arresting officer. The usual rules of the law as to self-defense are applicable to an arresting officer, but with certain qualifications. An officer may, of course, defend himself like any other person who is assaulted, but the law does not stop there, but throws around him a special protection because he must of necessity press forward and accomplish his object, . . . and, in such a case, the officer is entitled to have the jury so instructed. Loveless v. Hardy. . . . The acts of appellant in seeking to prevent Long's escape, prior to his act of shooting, could not, under any theory of law, be considered as "his own unauthorized act," but, on the contrary, were acts expressly required of him by law.

Instruction twelve was to the effect that if Long resisted arrest, appellant would not be authorized to use such force and instrumentalities as would imperil the life of Long in order to overcome his resistance; that human life is too precious to be imperiled by the arrest of one who is only guilty of a misdemeanor; that if appellant, in order to overcome Long's resistance, used a dangerous and deadly weapon, and in such manner as to endanger his life, and thereby inflict serious wounds, then the appellant would be guilty of assault and battery, at least. This instruction, standing alone or considered in conjunction with instruction fifteen and the other instructions, did not correctly state the law, and the court erred in giving it.

Our general statutes concerning arrests, and applicable to all classes of criminal cases, provide that: "the defendant shall not be subject to any more restraint than is necessary for his arrest and detention." section 2157 Burns 1926. "If, after notice of intention to arrest the defendant, he either flees or forcibly resists, the officer may use all necessary means to effect the arrest." section 2159 Burns 1926.

In Plummer v. State . . ., the court said: "The law does not allow a peace officer to use more force than is necessary to effect an arrest. . . . And if he does use such unnecessary force, he . . . may be lawfully resisted . . . If the officer is resisted before he has used needless force and violence, he may then press forward and overcome such resistance, even to the taking of the life of the person arrested, if absolutely necessary."

The degree or limit of force that lawfully may be employed by an officer in arresting one charged with a misdemeanor (as distinguished from a felony) has been considered in a large number of cases in other jurisdictions. . . .

The general rules deduced therefrom may be stated to be: (A) that an officer having the right to arrest a misdemeanant may use all the force that is reasonably necessary to accomplish the arrest, except (B) that he may not, merely for the purpose of effecting the arrest, kill or inflict great bodily harm endangering the life of the misdemeanant; thus an officer may not kill or shed blood in attempting to arrest a misdemeanant who is fleeing, but not resisting. (C) That if the defendant physically resists, the officer need not retreat, but may press forward and repel the resistance with such force, short of taking life, as is necessary to effect the arrest; and if in so doing, the officer is absolutely obliged to seriously wound or take the life of the accused, in order to prevent the accused from seriously wounding or killing him, he will be justified. Smith v. State. . . .

To adopt the rule contended for by the prosecution in the trial below and stated by the court in instruction twelve would be to paralyze the strong arm of the law and render the state powerless to use extreme force when extreme resistance is offered, and would permit misdemeanants to stay the power of the state by unlawful resistance.

"To say to a defendant 'you may measure strength with the arresting officer, and avoid being taken if you are the stronger, or, after your arrest, you may break away unless he can prevail over you in a wrestle,' is to elevate mere brute force to a position of command over the wheels of justice" I Bishop, Criminal Procedure. . . .

In the trial of this case, it would seem that the duty of officers to enforce the fish and game laws and to prevent a prisoner from escaping from custody as well as the duty of citizens to submit peaceably to lawful arrest were almost lost sight of. . . . Many acts which are not inherently wrong and involve no moral turpitude, have been made unlawful by statutes enacted in the interest of the welfare of the public or state, or for the conservation of its natural resources. The law against seining fish is such a law, and respect for our government and its authority requires that a citizen obey the law. It is a narrow attitude and one that is dangerous to our country for those who may feel that their personal rights and liberties have been wrongfully curtailed by legislation to seek to nullify the law by violation thereof and by defying constituted legal authority when placed under arrest. . . .

The judgment is reversed, with directions to sustain appellant's motion for a new trial and for further proceedings not inconsistent herewith.

This case is in these books

• Criminal Law and Its Processes: Cases and Materials
• Kadish, Schulhofer
• 8th Edition