State v. Mulvihill

57 N.J. 151 (1970)

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Nature of the Case

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Facts

Officer Dowling was operating a patrol car. He observed D, a 20-year-old youth, and two other persons standing in front of a pizzeria. He noticed D pouring something from a bottle into a paper cup held by one of the other two persons. Since there was a local ordinance prohibiting the drinking of alcoholic beverages on a public street, the officer stopped the car, got out, and called the young men to come over to him. As they did so, D threw the paper cup on the sidewalk. Dowling asked him what was in the cup and D did not answer. According to D, when he failed to disclose what he had been drinking the officer grabbed him and asked to smell his breath. He held his breath and remained silent, whereupon Dowling shook him 'back and forth' by the shoulders and said, 'I should arrest you, you punk.' D tried to pull away and Dowling 'jerked him back around' with the result that both men fell. They arose with Dowling still holding him. When he tried to pull free, Dowling struck D on the side of the head with his gun lacerating his scalp. D then fell toward Dowling and they both went down again. The officer's right hand was being held by D who was trying to keep the gun pointing away from himself, while the officer was endeavoring to direct it at him and saying 'Stop or I'll shoot.' D testified that at this time he was trying to avoid being shot. Then the gun went off, harmlessly. With his right hand, D punched the officer in the left side of the face. It was for this blow that he was indicted. Other officers appeared and D was immobilized. D was convicted. It was overturned on appeal and P appealed.