Therefore, if the evidence shows that instruction number three may have been an inadequate statement of the law as applied to this fact situation, we cannot say that the trial court has abused its discretion, and we will affirm the grant of a new trial. Durham v. State (1927), 199 Ind. 567, 572, 159 N.E. 145, 146. Instruction number three was intended to explain the amount of force which police officers may use to arrest a fleeing misdemeanant. It reads as follows:
A private person's manner in arresting a felon cannot automatically be attributed to the state. See Pearson, The right to kill in making arrests, 28 Mich L R 957 (1930), citing State v Dunning, 177 N.C. 559; 98 S.E. 530 (1919); Durham v State, 199 Ind. 567; 159 N.E. 145 (1927).People v Couch, 176 Mich. App. 259.
It is a long-standing premise that a law enforcement officer is authorized to use reasonable force necessary to effect the arrest or detention of a citizen. UNDERSTANDING CRIMINAL LAW, DRESSLER, Sec. 21.03 (2d ed. 1995); CRIMINAL LAW, ROBINSON, Sec. 8.3 (1996); Durham v. State, 199 Ind. 574, 159 N.E. 145 (1927). Earlier precedents allowed a citizen to use reasonable force to resist what the citizen believed, in good faith, to be an unlawful apprehension.
The more generally accepted view finds the public interest is better served by recognizing the duty and right to make the arrest or to maintain custody acquired and hence gives the officer a corresponding additional mantle of protection from liability. Bullock v. State, supra ( 65 N.J.L., at page 572); 1 Wharton, Criminal Law and Procedure ( Anderson's ed. 1957), § 207, p. 458; 1 Bishop, New Criminal Procedure (2 d ed. 1913), § 161, p. 115; 40 C.J.S. Homicide § 137 a, pp. 1021-1022; Durham v. State, 199 Ind. 567, 159 N.E. 145, 146-147 ( Sup. Ct. 1927); State v. Ford, 344 Mo. 1219, 130 S.W.2d 635, 637-640 ( Sup. Ct. 1939). D.
(See cases cited under § 522(1) Criminal Law in Decennial Digests.) The law protects persons charged with crime from ill or unjust treatment at all times. Only reasonable and necessary force may be used in making an arrest, §§ 2157, 2159 Burns 1926; 4, 5. Durham v. State (1927), 199 Ind. 567, 159 N.E. 145; Plummer v. State (1893), 135 Ind. 308, 34 N.E. 968; "no person arrested, or confined in jail, shall be treated with unnecessary rigor," § 15, Art. 1, Constitution, § 67 Burns 1926; Hall v. State (1928), 199 Ind. 592, 600, 159 N.E. 420; and the restraint exercised over a prisoner in the courtroom can only be such as is necessary, in the exercise of the court's sound and enlightened discretion, to prevent his escape or the harming of others. McPherson v. State (1912), 178 Ind. 583, 99 N.E. 984; Hall v. State, supra. "While the law protects the police officer in the proper discharge of his duties, it must at the same time just as effectively protect the individual from the abuse of the police."
Section 2159 Burns 1926 provides as follows: "If, after notice of the intention to arrest the defendant, he either flees or forcibly resists, the officer may use all necessary 9, 10. means to effect the arrest." In Durham v. State (1927), 199 Ind. 567, 159 N.E. 145, it was held that an officer, having the right to arrest one guilty of a misdemeanor, may use all the force that is reasonably necessary to accomplish the arrest, excepting that he may not kill him or inflict great bodily harm endangering his life when he is fleeing; and he may also overcome resistance with such force, short of taking life, as is necessary to effect the arrest. The claim of appellant that he acted in self-defense is not established by the evidence.
Since it was his action of shooting Shipley during the scope of his employment that prompted the charge of assault and battery, it is pertinent to remember that a police officer is vested with a special protection in resisting force because of being a police officer and because of his duty to press forward and accomplish his objective. See Durham v. State (1927), 199 Ind. 567, 159 N.E. 145. The fact that charges were not brought against Shipley is immaterial to this litigation on appeal.
" The law protects persons charged with crime from ill or unjust treatment at all times. Only reasonable and necessary force may be used in making an arrest, §§ 2157, 2159 Burns 1926; Durham v. State (1927), 199 Ind. 567, 159 N.E. 145; Plummer v. State (1893), 135 Ind. 308, 34 N.E. 968; `no person arrested, or confined in jail, shall be treated with unnecessary rigor,' § 15, Art. 1, Constitution, § 67 Burns 1926; Hall v. State (1928), 199 Ind. 592, 600, 159 N.E. 420; and the restraint exercised over a prisoner in the courtroom can only be such as is necessary, in the exercise of the court's sound and enlightened discretion, to prevent his escape or the harming of others. McPherson v. State (1912), 178 Ind. 583, 99 N.E. 984; Hall v. State, supra. `While the law protects the police officer in the proper discharge of his duties, it must at the same time just as effectively protect the individual from the abuse of the police.'
An arresting officer has always had the right to use such reasonable force as necessary to make an arrest and to take his prisoner to jail. Durham v. State (1927), 199 Ind. [2] 567, 159 N.E. 145. The right of an arresting officer to use reasonable force in making an arrest has been codified in IC 1971, 35-1-19-3, Ind. Ann. Stat. § 9-1007 (Burns 1956), which provides:
When the sheriff, who was acting as a special constable, entered the 5. yard, he was met by most serious resistance. In the case of Durham v. State (1927), 199 Ind. 567, 159 N.E. 145, the court said: "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." The verdict is not contrary to law.