## Facts

- James A. Durham, a deputy game warden, attempted to arrest Charles Long for illegally fishing with a gill net, a misdemeanor.
- Durham identified himself as an officer and tried to take Long into custody.
- Long resisted, entered a rowboat with another man, and attempted to flee across the water; Durham held onto the boat to prevent escape.
- During the struggle, Long struck Durham about the head with an oar.
- Durham fired his revolver; the shot struck Long in the arm.
- Durham was charged with assault and battery with intent to kill, convicted by a jury, and fined $700.
- The trial court denied Durham’s motion for a new trial after instructing the jury, in substance, that an officer could not lawfully endanger a suspect’s life to arrest for a misdemeanor and that use of a dangerous weapon endangering life supported guilt.

## Issues

1. Whether the jury was improperly instructed on assault and battery by omitting the requirement that the touching or force be unlawful.
2. Whether the jury was improperly instructed on a peace officer’s permissible use of force while making a lawful arrest and facing resistance.
3. Whether the self-defense instructions improperly limited an officer’s right to defend himself while executing a lawful arrest.

## Decision

- The Indiana Supreme Court reversed the judgment and remanded for a new trial.
- The instruction defining assault and battery was erroneous because it failed to include that the touching or force must be unlawful.
- The instructions on an officer’s use of force and self-defense were erroneous because they treated the officer’s conduct as categorically unlawful when life was endangered during a misdemeanor arrest, without allowing consideration of justification in light of violent resistance and self-defense.
- The instructional errors were prejudicial because justification and self-defense were central to the case.

## Legal Principles

- Assault and battery requires an unlawful or wrongful application of force; a definition that omits “unlawful” misstates the offense where justification is in dispute.
- A peace officer making a lawful arrest may use no more force than reasonably appears necessary under the circumstances; unnecessary force may be resisted.
- An officer’s authority and duty in executing a lawful arrest affects the self-defense analysis; the officer need not retreat from lawful performance of duty in the face of violent resistance.
- Instructions must permit the jury to consider whether the officer’s use of potentially deadly force was legally justified by reasonable necessity and self-defense when the officer faces an immediate threat of serious bodily harm.

## Conclusion

The court ordered a new trial because the jury instructions misstated the elements of assault and battery and improperly restricted the lawful justification and self-defense available to an officer attacked while attempting a lawful misdemeanor arrest.


Durham v. State, 159 N.E. 145 (Ind. 1927)