Durham v. State

10 Citing cases

  1. Cross v. City of Gary

    456 N.E.2d 728 (Ind. Ct. App. 1984)   Cited 3 times

    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:

  2. People v. Couch

    436 Mich. 414 (Mich. 1990)   Cited 23 times
    Recognizing that, in leaving murder undefined, the Legislature imported the common law's definition of murder into our statutes

    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.

  3. In re C.L.D

    739 A.2d 353 (D.C. 1999)   Cited 26 times
    Holding that a defendant engaged in only passive resistance when he refused to provide his name and walked away when an officer ordered him to state his name and not walk away

    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.

  4. State v. Williams

    29 N.J. 27 (N.J. 1959)   Cited 69 times
    In State v. Williams, 29 N.J. 27, 36-37 (1959), the Court recognized that one may shoot with an intent to disable rather than to kill.

    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.

  5. Bonahoon v. State

    203 Ind. 51 (Ind. 1931)   Cited 28 times
    In Bonahoon v. State (1931), 203 Ind. 51, 178 N.E. 570, 79 A.L.R. 453, the Indiana Supreme Court affirmed a criminal conviction of a police officer for assault and battery resulting from excessive physical force visited upon a prisoner.

    (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."

  6. Johnson v. State

    167 N.E. 531 (Ind. 1929)   Cited 10 times

    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.

  7. Shipley v. City of South Bend

    175 Ind. App. 464 (Ind. Ct. App. 1978)   Cited 13 times
    Concluding that once the jury found that the police officer's actions in shooting the plaintiff did not constitute assault and battery and were not unreasonable, the alleged negligence of the city in hiring and training the officer was no longer at issue

    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.

  8. Roberts v. State

    159 Ind. App. 456 (Ind. Ct. App. 1974)   Cited 37 times
    In Roberts, the court concluded that "[i]f a private duty to a private individual [is] found to exist, the doctrine of respondeat superior comes into operation and the State, and its various agencies and subdivisions, may be liable for the torts of its employees and agents."

    " 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.'

  9. Birtsas v. State

    156 Ind. App. 587 (Ind. Ct. App. 1973)   Cited 6 times
    In Birtsas v. State (2d Dist. 1973) 156 Ind. App. 587, 297 N.E.2d 864, we affirmed a conviction of assault and battery against a claim of self-defense involving the biting of the hand of the arresting officer.

    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:

  10. Luckado v. State

    166 N.E. 618 (Ind. Ct. App. 1929)   Cited 1 times

    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.