Durham (defendant), a deputy game warden, arrested Long for illegal fishing. During his attempt to escape custody, Long beat Durham about the head with an oar from his boat. Durham then shot Long in the arm. During Durham’s trial for assault and battery, the trial judge instructed the jury that Durham was not authorized to use lethal force in order to overcome Long’s resistance, that Long’s life could not be put in jeopardy for Long’s misdemeanor charge of illegal fishing, and that if Durham used a dangerous weapon to overcome Long’s resistance, and used it to endanger Long’s life and inflict serious wounds, then Durham was guilty of assault and battery. Durham was convicted and he filed a motion for a new trial which was denied. Durham appealed the conviction.