Durham v. State - 199 Ind. 567, 159 N.E. 145 (1927)

Rule:

An officer having the right to arrest a misdemeanant may use all the force that is reasonably necessary to accomplish the arrest, except 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. 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. 

Facts:

James Durham, 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) Durham claimed had just been committed within his view, on Little Tippecanoe Lake about midnight, December 4-5, 1925. Long, after being placed under arrest, resisted, and, with a companion, attempted to escape in a row boat. Durham, wading out in the water, clung to the boat and, after an exciting struggle or fight in the edge of the lake, shot Long with a revolver and wounded him. Durham was convicted of assault and battery.

Issue:

Was Durham’s conviction proper?

Answer:

No.

Conclusion:

The court reversed and remanded for a new trial, holding that the jury should have received instructions that an assault and battery not only involves a touching in a rude, insolent or angry manner, but that the touching must be unlawful. The court further stated that as a law enforcement officer in the process of making an arrest, Durham did not have to retreat from the person he was arresting, and could use deadly force in self-defense during the arrest.