The evidence, certainly parts of it, tendеd to prove that the defendant was a рoliceman in the line of •his duty; that he found the prosecutor engaged in a fight, advancing upon his retreating adversary, one Bailey; that he grapsed the prosecutor on the shoulder while he was so ■engaged, and badе him “consider himself under arrest”; that the latter cast his eye at him but did not heed the arrest or desist from the fight, but went' right on striking at Bailey, and was in the aсt of striking him when he struck the prosecutor with his club — one usually carried by policemen— and thаt the blow was given to prevent him from striking Bailey.
It was the duty of the defendant to interfere and suрpress the fight, and if need be, he might, in good faith, strike a reasonable blow for the purpоse. While he had no authority to strike an unnecessary blow, or one greatly in excess оf what was necessary for the purpose, and wanton, he was the judge of the force to be applied under the circumstanсes,
*740
and he would not be guilty of an assault and bаttery unless he arbitrarily and grossly abused the power confided to him, and whether he did or not was an inquiry to be submitted to the jury, under proper instructions from the Court. A grossly unnecessary, excеssive and wanton exercise of forcе would be evidence — strong evidence — of a wilful and malicious purpose, but the jury ought nоt to weigh the conduct of the officer as against him in “gold scales”; the presumption is he acted in good faith. This is the rule applicable in such cases as the present оne, as settled in
State
v.
Stalcup,
The Court instructed the jury “ that if they bеlieved the evidence of the witnesses, even upon the testimony of the defendant himsеlf, the defendant was guilty, because the prоsecutor offered no resistance to the officer, and there was no necessity for the blow.” But there was evidence that the prosecutor persisted in the fight after and while the defendant had. hold of him, and he persisted in it until he was forced to desist by the blow. This was evidence of resistance to the officer, and of thе necessity to exercise force tо suppress further violence. In view of the evidence the case should have beеn submitted to the jury substantially as indicated above. Error.