An argument ensued between Gilbert Padilla and the defendant and ultimately Gilbert Padilla struck several blows upon the defendant, cutting his face and knocking him against the back of the Jaramillo car. Jaramillo stepped between Gilbert Padilla and the defendant and Gilbert Padilla then walked away. When Gilbert Padilla had walked fifteen or twenty feet the defendant called to him and said, “Look what you have done to me, you are under arrest.” Thereupon the defendant drew his gun, fired at Gilbert Padilla and the bullet struck Gilbert Padilla’s left leg at a point just back of the mid-third of the left thigh, having a very slight downward direction and causing a comminuted fracture of the left femur.
The shooting of Gilbert Padilla by defendant constituted the use of more force than was necessary to overcome the resistance of Gilbert Padilla and placed him under physical restraint, considering the circumstances prior to and immediately following the firing of the shot, and constituted an excessive and unnecessary use of force by the defendant. The shooting was not necessary for the safety or protection of the defendant and the only excuse therefor, other than the defendant’s blind rage, was the attempt to arrest Gilbert Padilla for a misdemeanor.
Under point one the defendant contends the court’s findings of fact are not supported by substantial evidence, but we cannot agree with this contention. It is true the defendant attempted to make out a weak case .of self defense in that he said Gilbert Padilla was moving around as if shadow boxing (and he was a boxer); that the defendant believed he was in imminent danger of bodily harm; and, in addition, that defendant shot down at the ground and Gilbert partially turned his .leg, with the result the bullet went into the back of his leg.
It is very apparent the trial court did not believe the testimony of the officer, but accepted that of the plaintiffs’ witnesses to the occurrence, which supports the findings made.
It is well settled in this state that an officer does not have the right to shoot a misdemeanant in order to place him under arrest, absent an attempt by the offender to kill or inflict great bodily harm on the officer. The same rule applies if a misdemeanant is under arrest and breaks away and flees. The officer is not authorized to shoot or kill him merely to stop the flight. State v. Gabaldon, 1939, 43 N.M. 525, 96 P.2d 293. See also State v. Vargas, 1937, 42 N.M. 1, 74 P.2d 62, opinion on rehearing: 42 N.M. 5, 74 P.2d 65.
Here, according to the finding, the shooting was done by the defendant either to satisfy his blind rage or to arrest the assailed for a misdemeanor. The shooting was not.justified for either reason or both.