
    9396.
    Harris v. The State.
    Decided March 6, 1918.
    Indictment for assault and battery; from Camden superior court — Judge Highsmith. November 17, 1917.
    
      James T. Vocelle, for plaintiff in error.
    
      Alvin V. Sellers, solicitor-general, contra.
   Broyles, P. J.

1. While a person may resist an illegal arrest by an officer, he may not lawfully use more force than is necessary to prevent the arrest; and in a particular case it is for the jury to determine whether the force used to prevent the illegal arrest exceeded what was necessary to that end; and in no case is such a person authorized to assault an officer upon the mere statement of the latter that he has a warrant for the former’s arrest and that he must consider himself under arrest. The officer must, by some physical attempt, endeavor to make the unlawful arrest, before the other person can lawfully strike him or otherwise resist him by the use of physical force.

2. Under the foregoing ruling the verdict finding the defendant guilty of assault and battery was authorized by the evidence, and the court did not err in overruling the motion for a new trial.

Judgment affirmed.

Bloodworth and Harwell, JJ., concur.  