*311 On Petition for Rehearing.
Mr. Justice G-abbertdelivered the opinion of the court:
Counsel contend that defendant was entitled to have the jury advised that the force he was justified in using, was the degree of force which it appeared to him was reasonably necessary under the emergency of the occasion. This is substantially the law, but we think that was the purport of the instruction on the subject, for thereby, the jury were advised in effect, that a police officer, in making an arrest is justified in using such reasonable force, as may be necessary to subject the prisoner to his authority, that the amount of such force must necessarily be left to his sound judgment and discretion, when acting within the scope of his authority, and when not actuated by malice or ill-will; and that in resisting the interference of deceased, the defendant was justified in using such force as might be reasonably necessary in the exercise of a sound discretion, viewed in the light of all the surrounding circumstances present at the time. We think in the circumstances of this case, the fair inference to be drawn from the instruction is, that the jury were advised that defendant was justified to employ that degree of force which it seemed to him was reasonably necessary.
The whole case turns upon the one question of whether the defendant was justified in using the force he did in resisting the interference of the deceased. We think that question was fairly submitted to the jury and that under the facts of-this case, they could not have been misled by other instructions given, although they may have been misled by other instructions, although they may not have correctly stated the law, and may not have been warranted from the evidence.
The petition for rehearing is denied.
*312Decided March 3, A. D. 1913. Rehearing denied July 7, A. D. 1913.Chief Justice Musses, and Mr. Justice Hill concur: