The jury were instructed by the court in the charge given them, that if the defendant, who, as police officer, received information on the night of the plaintiff's arrest, that a murder had been committed, and he honestly believed it, it was not only his right, but his duty to arrest the party charged with or without a warrant, and to use so much force as was necessary to effect it; and after referring to the evidence and making proper comments thereon, explanatory of the authority and rights of the officer in the execution of his duty, he said, "if the officer acted in a rational and reasonable manner and in good faith, he is justified and you find for the defendant. If not, and if he used unnecessary force and severity, then you find for the plaintiff." The evidence, as to the conduct of the defendant and the circumstances under which force was used, and as to its degree was conflicting, and the jury found in favor of the plaintiff. That finding is conclusive on us.
There being conflicting evidence on the questions referred to, it was proper to submit those to the jury, and the motion to dismiss the complaint was properly denied.
Some exceptions were taken to the rulings of the court. Those relied on as to the admissibility of evidence, by the appellant, will be now briefly noticed.
The following questions were asked and overruled:
1st. Were there not some pretty hard characters in the crowd? referring to a crowd in the street, when the defendant was taking the plaintiff to the station house.
That was a fact irrelevant to the issue. It did not authorize or in the least degree excuse the infliction of blows or any violence by the officers on the prisoner, or palliate such acts.
2d. The defendant's counsel, after the conclusion of the *Page 501 examination of the defendant himself, recalled the first witness examined on his behalf and proposed to show "that at the time they were on the bridge, the plaintiff said that he would murder the policeman or any person that attempted to arrest him."
That was excluded and properly. No declaration of that kind would justify, excuse or palliate any of the acts complained of and especially if not made in the presence of the defendant. It was therefore irrelevant and immaterial, and it may be added that the admission of the proof after a full examination of that witness and without any pretence that it was offered in rebuttal of what had subsequently been proved on the part of the plaintiff was discretionary and its refusal was not a ground of exception.
The other exceptions are not urged in the points on this appeal. I have, however, examined them and it is sufficient to say without noticing them specifically that neither of them is well taken.
No exception was taken to the charge of the judge; but the defendant's counsel at its close asked him to charge, in addition, that there was no evidence in the case, "that the officer acted in bad faith," and also "that upon the evidence the defendant was justified."
Both of these requests were refused, accompanied with the remark, that he would leave those questions to the jury. That was proper.
There was evidence of a conflicting nature on each of those questions. It would, therefore, have been improper for the court to have given the positive instruction asked on either of them.
My conclusion upon the whole case is, that there is no legal ground for the reversal of the judgment. It must consequently be affirmed with costs.
MASON, JAMES, MURRAY, DANIELS, JJ., concurred with HUNT, Ch. J., for reversal.
GROVER and WOODRUFF, JJ., were with LOTT, J., for affirmance.
Judgment reversed. *Page 502