State v. . McMahan

Supreme Court of North Carolina

State v. . McMahan

9 S.E. 489, 103 N.C. 379

CourtSupreme Court of North Carolina

DecidedFebruary 5, 1889

StatusPublished

Cited by8 cases

This text of 9 S.E. 489 (State v. . McMahan) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. . McMahan, 9 S.E. 489, 103 N.C. 379 (N.C. 1889).

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Opinion

Davis, J.

(after stating the case). Two exceptions appear in the record.

The first is to the refusal to instruct the jury that Lackey was not a lawful officer, was not authorized to make the arrest, and that the deceased was in no better position than Lackey, and in no event could the prisoner be convicted of murder.

The second, to the refusal to instruct the jury that neither Lackey nor the deceased, under the circumstances, had any authority to disarm the prisoner.

The two exceptions may be considered together. We think it sufficiently appeared that Lackey was an officer, duly qualified ; but, whether this be so or not, he was known to be acting as such, and “ evidence that a person acted as a public officer, and that he was known as such, is prima facie evidence of his official character, without producing his com *382 mission or appointment. Such an officer is presumed to have been duly qualified, and this whether in a civil or criminal action.” Tatem v. White, 95 N. C., 453; State v. Speaks, 94 N. C., 865; State v. McIntyre, 3 Ired., 171; State v. Curtis, 1 Haywood, 471.

The law confers upon an officer, charged with the execution of process, all the powers necessary for the effectual execution of such process, and the officer must be the judge as to what is necessary. State v. Stalcup, 2 Ired., 50 ; State v. McNinch, 90 N. C., 695, and cases there cited. Of course he must act in good faith, and cannot, under the pretence of duty and necessity, gratify his malice or exercise wanton and unnecessary severity. State v. Stalcup, supra; State v. Bland, 97 N. C., 438 ; Braddy v. Hodges, 99 N. C., 319. It is the duty of those present, when necessary and called upon, to aid the officer, and the protection extended to the officer extends to persons so aiding. The Code, § 1125; State v. James, 80 N. C., 370. A simple reference to the facts will show that the prisoner should have been disarmed, and it was his ill-fortune, as well as that of the deceased, that he was not disarmed before the fatal shot. There was no error in the ruling of his Honor.

No error. Affirmed.

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Davis, J.

(after stating the case). Two exceptions appear in the record.

The first is to the refusal to instruct the jury that Lackey was not a lawful officer, was not authorized to make the arrest, and that the deceased was in no better position than Lackey, and in no event could the prisoner be convicted of murder.

The second, to the refusal to instruct the jury that neither Lackey nor the deceased, under the circumstances, had any authority to disarm the prisoner.

The two exceptions may be considered together. We think it sufficiently appeared that Lackey was an officer, duly qualified ; but, whether this be so or not, he was known to be acting as such, and “ evidence that a person acted as a public officer, and that he was known as such, is prima facie evidence of his official character, without producing his com *382 mission or appointment. Such an officer is presumed to have been duly qualified, and this whether in a civil or criminal action.” Tatem v. White, 95 N. C., 453; State v. Speaks, 94 N. C., 865; State v. McIntyre, 3 Ired., 171; State v. Curtis, 1 Haywood, 471.

The law confers upon an officer, charged with the execution of process, all the powers necessary for the effectual execution of such process, and the officer must be the judge as to what is necessary. State v. Stalcup, 2 Ired., 50 ; State v. McNinch, 90 N. C., 695, and cases there cited. Of course he must act in good faith, and cannot, under the pretence of duty and necessity, gratify his malice or exercise wanton and unnecessary severity. State v. Stalcup, supra; State v. Bland, 97 N. C., 438 ; Braddy v. Hodges, 99 N. C., 319. It is the duty of those present, when necessary and called upon, to aid the officer, and the protection extended to the officer extends to persons so aiding. The Code, § 1125; State v. James, 80 N. C., 370. A simple reference to the facts will show that the prisoner should have been disarmed, and it was his ill-fortune, as well as that of the deceased, that he was not disarmed before the fatal shot. There was no error in the ruling of his Honor.

No error. Affirmed.

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