State v. Gregory

30 Mo. App. 582, 1888 Mo. App. LEXIS 316

• Court: Missouri Court of Appeals
• Decided: April 24, 1888
• Status: Published

Opinion

Thompson, J.,

delivered the opinion of the court.

This was a criminal prosecution for an assault and battery. The defendant was a police officer of the city of St. Louis, and, as such, arrested the prosecuting witness, Mrs. Banks, for a breach of the peace committed in his presence. According to the testimony for the state, when he offered to arrest her she declined to go, and he took her by the shoulder. She thereupon got hold of the rail of the baluster, and, according to her testimony, he kicked her twice in order to loosen her hold and then dragged her down stairs to the street. The testimony for the defendant was to the effect that he took hold of her, but did not kick her or drag her down stairs. The jury found the defendant guilty and as'sessed against him a fine of ten dollars.

I. The first error assigned by the defendant, appealing, is, that the court erred in refusing to allow him to introduce evidence to show that the prosecuting witness was convicted of the misdemeanor for which he arrested her. We see no error in this. The' question was, whether he used unnecessary force in accomplishing the arrest. Whether she was acquitted or convicted of the misdemeanor would have no relevancy to the issue on trial.

II. The jury were fully instructed upon the law of arrest by peace officers for misdemeanors committed in their presence; but complaint is made of the following instruction:

“The court instructs the jury that an officer, in making an arrest, cannot use any more force than is necessary to make the arrest. He is not justified in assaulting a person under arrest, any further than to defend himself from an attack from such person.”

We do not think that this instruction could have misled the jury, when read in connection with the other instructions which were given. The second sentence is incomplete, and hence subject to verbal criticism, in that it fails to add, “or to maintain the arrest or prevent an escape,” or some equivalent qualification. Certainly an officer has the right to assault a person who is under arrest for the purpose of preserving the arrest, of conducting him to a proper place of confinement, or preventing an escape, using no more force than necessary ; but this was sufficiently explained to the jury . in the other instructions ; and the preceding sentence of this instruction, which told the jury that an officer, in making an arrest, cannot use any more force than is necessary to make the arrest, — impliedly told them that he can use as much force as is necessary for that purpose. The case here presented is not, we think, as counsel argue, a case where contradictory instructions have been given ; but rather a case where one instruction, somewhat incomplete in itself, is fully supplemented by other instructions in the series.

All the judges concurring, the judgment is affirmed.