Opinion
April 3, 1905.
PRESENT: Douglas, C.J., Dubois and Blodgett, JJ.
(1) Assault. Police Officers. A police officer in making an arrest is justified in using sufficient force to subdue a prisoner, whether there is any danger of harm to himself or not.
TRESPASS FOR ASSAULT. Heard on petition of defendant for new trial, and granted.
Cooney Cahill, for plaintiff.
John P. Beagan, for defendant.
The evidence strongly preponderates to the effect that the assault complained of was justifiable.
The defendant was a police officer who, in the discharge of his duty in overcoming the violent resistance of the plaintiff, struck him one blow upon the head with his night-stick. The plaintiff was beyond any doubt drunk and quarrelsome, and his arrest and detention were proper and necessary to the preservation of the peace.
The jury seem to have conceived the idea that it was necessary for the defendant to prove that he was in danger of being injured and struck the blow in self-defence. This would have been a sufficient excuse if the blow had been struck by a private person, but it was the duty of the police officer, in the circumstances, to use sufficient force to subdue the prisoner, whether there was any danger of harm to himself or not. In dealing with a strong man, struggling against capture, an officer can not be held to the closest measure of force, and if he uses reasonable judgment in the circumstances, should be exonerated from blame. "An officer who is making an arrest, or has made an arrest, is justified in using such force as is necessary to secure and detain the offender, overcome his resistance, prevent his escape, and recapture him if he escapes." 3 Cyc. 890, and cases cited.
The petition for a new trial is granted, and the cause will be remitted to the Common Pleas Division for further proceedings.