|Court of Appeals of Kentucky.|
|Boles et al v. Pinkerton.|
|Dec. 21, 1838.|
|ACTION: Judgment affirmed.|
CHIEF JUSTICE ROBERTSON delivered the opinion of the Court:
The only question in this case, is whether the Circuit Judge erred in sustaining a demurrer to a plea of justification in an action for an assault and battery and wounding. To an action for an assault, battery and wounding, defendants plead, that they gently laid hands on the plantiff to arrest him for felony, and did him no more injury than was necessary in effecting the arrest:--as it does not justify the wounding--is insufficient; for, though a private citizen may arrest a felon, he may not wound him, unless resistance makes it necessary; and, in that case, the plea of justification must aver it.
The plea, averred, in substance, that the defendant in error, (plaintiff in the action) had been guilty of being accessary to a felony, both before and after the fact; and that the plaintiffs in error, (defendants in the action,) intending to apprehend him as a felon, jointly laid their hands on him, and committed no more injury to his person than was necessary for effecting the arrest.
Conceding that a private citizen may apprehend a felon--still the fact that might justify the arrest, and even the battery, will not, per se, justify a wounding. Molliter manus imposuit is insufficient as to a wounding.
The plea, to be good, should aver such facts as would show that the wounding, as well as the assault and battery, was justifiable. And therefore, as the plea in this case does not aver that the defendant in error forcibly resisted the arrest, so as to render a wounding justifiable, it is fatally defective in that respect. And consequently, as it purported to be pleaded as a bar to the whole cause of action, the Circuit Judge did not err in sustaining the demurrer to it.
Boles et al v. Pinkerton.
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