The opinion of the Court was delivered by
Moses, C. J.This case comes up on a writ of error to the Circuit Court of the County of Charleston.
By the record, it appears that the plaintiff had been convicted of assault and battery on one Suhrstedt, and sentence pronounced by the Court.
Before the jury'retired, his counsel prayed the presiding Judge to instruct them as follows:
“ 1st. That if the defendant, (below,) as an officer of the police force of the city of Charleston, was engaged in the execution of his duty, and the assault charged was committed in their discharge, then he is excused, and should be found not guilty.
“2nd. That if the defendant, as an officer of the city of Charleston, used force upon the prosecutor, (Suhrstedt,) to secure him as a prisoner, and used only proper and sufficient force for that purpose, then he is excused, and should be found not guilty.
“ 3rd. That if the defendant, as an officer of police, acted in good faith, without malice, passion, or ill will, but simply with intent to do his duty, and secure the prisoner, (Suhrstedt,) and not to injure him, then he is excused, and should be found not guilty.”
The Judge charged in conformity with the second proposition submitted, and refused as to the first and third. This refusal is assigned as error, and we are to consider the points made by the exceptions.
The doctrine claimed in the first would give a latitude to public officers, in the execution of their duty, which would be dangerous to the public, and subversive of the proper relation which, as conservators of the peace, they should maintain to the community.
If the principle which it implies was recognized in our criminal code, no public officer could be made responsible for the use of force, no matter how unnecessary and unjust, if it were applied while he was engaged in the performance of some duty. Its comprehensive language would remove all restraints upon violence. The standard which the law establishes, to regulate, on the one *302hand, the duties of public officers, and, on the other, to protect the rights of those against whom they assume to act, would be destroyed, and the will of the party charged with the power to arrest would be substituted as the rule.
If the proposition submitted by the exception should be admitted as the law, all enquiry into the acts of officers, complained of as breaches of the peace, would be precluded on the assumption that they were committed in the execution and discharge of duty.
The “ necessity ” which the argument for the motion speaks of is to be determined, not by the officer, but by the jury, for, otherwise, the result would be to leave, entirely and exclusively, to the former, the right to determine when it exists. It would be a concession too dangerous to the community to meet the favor of any judicial tribunal.
The Court charged as claimed by the plaintiff in error in his second proposition, and, in so doing, correctly laid down the law. It cannot fail to be observed that it is in conflict with the ¡oosition which the defendant (below) assumed in his first exception, for while this admits that lawful force is only such as is proper and sufficient for the immediate exigency, that implies the resort to any force, and the propriety of the extent is to be determined alone by the officer.
It is not every resistance that will justify an enormous battery. The force applied must have a due regard to the purpose it is to accomplish. It is allowed, when it may be necessary to overcome, by its intei'position, the violence which is opposed to prevent the due exercise of the authority with which the officer is charged. If it proceeds beyond the limit of the necessity which originally permitted its use, it is no justification.
Our own cases of the State vs. Wood, 1 Bay., 351, and the State vs. Lazarus, 1 Mill’s Con. Rep., 34, are in consistency with the doctrine laid down in 2 Bishop on Criminal Law, § 58. The authorities are there cited, and the writer thus concludes: “ Finally, the force must be unlawful; any violence, therefore, which, from the relations of the parties, or otherwise, one has the right to inflict on the other, as in the making of arrests by those lawfully empowered, and in the detaining of persons arrested, is not deemed an assault. This proposition assumes that the person goes no further in the use of force than the law allows ; for when one who, for instance, has the right to inflict personal chastisement on another under him, proceeds with it to an illegal extent, he becomes guilty of an *303assault; and, generally, where the force is authorized, it must not exceed what is necessary, else the excess will be criminal.”
The ground next assigned as error is not well founded. Although the intent is of the essence of the crime, yet that is to be inferred by the jury from the acts proved. How could it appear that the defendant (below) “acted in good faith, without malice, passion or ill will, but- simply with intent to do his duty, and secure the prisoner, and not to injure him,” except from a review of all the circumstances attending the transaction ? If this led the jury to conclude that the violence used did not exceed that which was necessary to overcome the resistance opposed, and was, therefore, proper, because, without it, the arrest could not be made, then the act complained of could not be referred either to malice, passion or ill will, but wmuld be justified, by reason of the necessity of force, to effect the purpose required by the law.
It would not avail here to prove that he did not intend to commit an assault; the apparent original intention was to arrest; but if, in making it, he used more force than was sufficient and proper, from this the jury may construe a wrongful intent, at variance with that which is claimed to have existed at the inception.
The subject of intent is well comprised by Bishop, in the second volume of his work on criminal law, at Section 76, in the following language: “The wrong intent is a necessary element in a crime. What degree of mischief in the intent, or, in some respects, what form of evil intent must enter into the criminal assault, may not be capable of an exact statement; but it seems not to be always necessary there should be a specific determination to commit an assault or battery, or any other crime which, in law, includes an assault.”
The motion is refused.
Willard, A. J., concurred.