It appears from the statement of facts that, at the time of the alleged assault, the accused, a policeman, had in custody one McCauts, the person upon whom the assault is alleged to have been made, and was endeavoring to convey him to the calaboose, in the city, for some alleged offense; and that the prisoner, having refused to proceed further, pulled himself away from the accused, and thereupon the accused raised his pistol, an ordinary-sized *21six-shooter, and struck McCauts on the side of the head with the barrel of the pistol.
There is no evidence that McCauts struck, or attempted to strike, the accused, or to do more than refuse to go with, and endeavor to get loose from the hold of, the accused. There is no evidence that the accused made any effort to procure assistance in controlling McCauts, though it is shown that there were other persons near enough to hear the noise made by the blow he struck.
Agreeably to the law of this case as laid down in the opinion of the supreme court in Skidmore v. The State, 43 Texas, 94, delivered by Roberts, C. J., the accused might have handled his prisoner roughly, if necessary, in the act of carrying him along, or called others to his aid, if needed. He had no right to punish him, to assault and beat him with a pistol, to make him or induce him to go, when he stopped.
"In making an arrest, all reasonable means are permitted To be used to effect it. No greater force, however, shall be resorted to than is necessary to secure the arrest and detain the accused.” Pasc. Dig., Art. 2697.
There was no occasion for the use of the means employed, in order to secure the arrest and detention of McCauts. The judgment rendered herein is affirmed.
Affirmed.