| N.C. | Feb 5, 1896
The indictment charges the defendant with a simple assault and battery upon one Killett, and that the latter was a special policeman of the town of Clinton and in the discharge of his duty at the time of the assault. He was convicted by (1202) the jury and sentenced by the court to imprisonment for six months in the county jail. We presume that this sentence was under the act of 1889 (chapter 51), which is an act to punish resistance to a public officer and to make such resistance a misdemeanor, without limiting the punishment. The State relied on section 3, chapter 90, Laws 1883, with the testimony of Killett and the mayor, to show that Killett *764 was a constable of the town at the time of the alleged assault. The section of the act of 1883 referred to reads as follows: "The mayor of said town shall have the right to appoint special policemen for the protection of property and the preservation of the peace." This language cannot be construed to mean that the mayor had the power to appoint policemen generally, the appointment to be indefinite as to the duration of time, in addition to the proper number of policemen employed and appointed by the regular town authorities. It must mean that the mayor's power extends only to the placing on duty, at extraordinary times and on unusual occurrences and occasions, a special police force, in addition to the regular force, in order that the needs of such unusual times and occasions may be fully met.
The testimony in this case shows neither such occasions nor such need, nor such appointment by the mayor. The verdict cannot stand, and the case will be sent back for a reformation of the judgment in respect to the punishment imposed by the judge, it being beyond his power to inflict for a simple assault and battery, for the reason that upon a trial for a simple assault the principles of the law which apply in cases of resistance to public officers are not the same as those which apply to a simple assault and battery, for which the defendant in this case is indicted. The defendant is entitled to a
New Trial.
(1203)