Durham v. State

199 Ind. 567, 159 N.E. 145 (1927)

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Nature of the Case

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Facts

D, a deputy warden or commissioner of fisheries and game 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. Long, after being placed under arrest, resisted, and, with a companion, attempted to escape in a rowboat. D, wading out in the water, clung to the boat and, after an exciting struggle or fight in the edge of the lake. Long beat D about the head with an oar and D shot Long in the arm. D was charged with unlawfully committing an assault and battery with intent and premeditated malice to kill and murder Long. At trial, the judge instructed the jury that D was not authorized to use deadly force to apprehend Long if Long resisted arrest for a misdemeanor. D was convicted of assault and battery. D appealed.