Fulton v. . Staats , 41 N.Y. 498 ( 1869 )

Hunt, Ch. J.

The charge to the jury was sufficiently favorable to the defendant. The judge charged, that if the defendant had received information from which he believed, that a felony had been committed, it was his duty to make the arrest with or without warrant. That if, upon arriving at the plaintiff’s residence, he found the information to be erroneous, he had no right to proceed farther; that he had a right to use as much force as was necessary to make.the arrest, and that the jury should not measure precisely the limit to which he went, unless they found that he exceeded all proper and rational bounds. He left the conflicting testimony of the parties to the jury, for them to determine that question.

I think, however, there was error in excluding the offer to prove that the plaintiff threatened to murder the policeman or any one who attempted to arrest him. According to the defendant’s account, the plaintiff resisted the arrest from the beginning to the end. He refused to submit to capture at his house, but tried to escape there; he struck at him, used profane and threatening language there. To overcome him, the defendant says that he called in assistance, and carried him down as far as the bridge; that he then sent back for his clothes, to be brought to the station house. Still further on, according to the defendant’s account, he continued the resistance, by throwing down his assistant, and by seizing and by kicking himself and his assistant, and by hanging back all the way. The passage from the house to the police office constituted but one transaction, and all that was there said or done was competent evidence for either party. It was competent to the plaintiff to show that he consented in words to accompany the officer, and that, notwithstanding such consent, he was roughly and brutally treated. His consent would form an important element in the case, and if sincere, would have required and justified a smaller degree of force than under other circumstances. So it was competent to show the resistance in words, as well as in acts, and when the plaintiff said, accompanying his actual resistance, that he would murder any man that attempted to arrest him, a much greater degree of energy was justified, than if there had been no such threat. It was highly expressive of the plaintiff’s determination not to permit the arrest, and of the degree to which he purposed resistance.

For this exclusion, a new trial must be ordered.