* Corpus Juris-Cyc. References: Homicide, 29CJ, p. 1149, n. 47, 48, 49; p. 1150, n. 50, 51, 52, 53, 54; p. 1152, n. 75, 76, 77; 30CJ, p. 33 n. 31, 32, 33, 34; p. 45, n. 78; p. 46, n. 79, 80, 81; p. 77, n. 43; p. 78, n. 51, 53; p. 172, n. 72, 74, 79 New; p. 255, n. 24; p. 263, n. 36; p. 366, n. 96; p. 369, n. 24, 27; Witnesses, 40Cyc, p. 2559, n. 64; p. 2714, n. 93. Appellant, Robert Wilkinson, was indicted and tried on a charge of murder in the circuit court of Warren county, and convicted of manslaughter. From that judgment he prosecutes this appeal.
Appellant was charged with the murder of Leonard Cherry, a boy about grown. Cherry made his home with Mr. and Mrs. Barfield, his sister and her husband, in the city of Vicksburg. Appellant was a member of the police force of the city of Vicksburg, and so was Louis Willis. On the evening of the homicide, Mrs. Barfield telephoned police headquarters in Vicksburg to send a policeman up to her home, without stating why she needed one. In response to her request, the chief of police assigned appellant to answer the call. Appellant requested Policeman Willis to join him in answering the call, which he did. Appellant and Willis thereupon went in a police car to the home of Mr. and Mrs. Barfield, where they found them both. On arriving there they learned for the first time the object of the call. Mrs. Barfield stated that her brother, Leonard Cherry, was at the home of a woman, Marjorie Ward, and, if he was not gotten away, would remain there the greater part of the night. She urged appellant and Willis to go and get him and bring him to her home. Her husband joined her in this request. Appellant and Willis protested that they *Page 333 had no authority under the law to do as the Barfields requested; that Cherry had committed no crime; that there was no warrant for his arrest out, and therefore they were without authority to act. Appellant and Willis insisted that the Barfields go to the chief of police or the city judge, or both, and consult with them about the matter; that no action be taken until the next day. However, after much urging, according to appellant's evidence, which seems not to have been seriously disputed, appellant and Willis consented to go and try to get Cherry and bring him home, provided Mr. and Mrs. Barfield would go with them. The Barfields agreed to do this. Thereupon the four proceeded in the appellant's car to the home of Marjorie Ward, where they found Leonard Cherry.
It was some time in the night when they reached the home of Marjorie Ward. Appellant and Willis told Cherry that they came after him to take him to the home of the Barfields. He seemed at first willing to go, but when he discovered Mr. and Mrs. Barfield in the police car he vehemently refused to get in the car, but said he would go afoot. Appellant and Willis, evidently fearing that Cherry would not go home at once, undertook to force him into the appellant's car. Appellant tried to put handcuffs on Cherry. The latter struck the handcuffs out of appellant's hands. The two then clenched in a struggle. Cherry was in his shirt sleeves and was unarmed. Appellant and Willis were both armed. Presumably they always went armed when on duty. During the scuffle between appellant and Cherry, appellant's pistol, which was in a scabbard at his side, was fired. According to appellant's testimony in his own behalf, he did not fire the pistol, but it was fired accidentally by Cherry in an effort to get it away from appellant. No one was struck by the first shot fired in that manner. When the shot was fired, Willis struck Cherry on the head with his pistol. This stunned Cherry somewhat. *Page 334 Thereupon appellant and Cherry broke their hold on each other and separated.
Thus far there is little conflict in the evidence. According to the state's evidence (the testimony of Mr. and Mrs. Barfield) appellant and Cherry separated some eight or ten feet, whereupon appellant shot Cherry. This shot resulted in the latter's death. Their evidence therefore tended to show that when Cherry was shot he was not in reach of appellant and was not trying to wrest appellant's pistol from him and shoot appellant. On the other hand, appellant and Willis testified that, after the first shot and after Willis struck Cherry on the head with his pistol, appellant and Cherry broke their hold on each other; that Cherry, who was a powerful man physically, was still trying to wrest appellant's pistol from its scabbard with a view of killing or doing appellant some great bodily harm with it. Putting it differently, the testimony of appellant and Willis tended to show that, when appellant shot Cherry, the latter was trying to get appellant's pistol out of its scabbard for the purpose of shooting appellant, and the parties were so situated towards each other that there was imminent danger of Cherry accomplishing his purpose; that, in order to avoid being thus shot by Cherry appellant got out his pistol and shot Cherry.
Appellant assigns and argues as error the giving of the fifth instruction for the state. By that instruction the court told the jury, in substance, that, in view of the fact that appellant was trying to arrest and take Cherry without authority of law, the latter had the right to resist such attempted arrest with whatever force was necessary to avoid the arrest, "even to the extent of taking the life of defendant." By this instruction appellant was cut off from the right of self-defense. The instruction amounted under the undisputed facts of the case to the court telling the jury that appellant had no right to kill Cherry, either to save his own life or being done great bodily harm at the hands of Cherry. In other *Page 335 words it was, in effect, a peremptory instruction by the court to the jury to find the defendant guilty of either murder or manslaughter.
It is undisputed that appellant and Willis were without authority of law to arrest and take Cherry, and that, in attempting to do so, they were the aggressors in the difficulty culminating in the homicide. But there is an entire absence of any evidence whatever tending to show that appellant and Willis, or either of them, armed themselves for the purpose of provoking a difficulty with Cherry and of killing him, if necessary, in order to overcome him. On the contrary, the evidence shows conclusively that whatever homicidal intent there was between appellant and Cherry sprung up after the latter knocked the handcuffs from appellant's hands and while they were engaged in the fight.
The courts generally hold that the right to resist an unlawful arrest is a phase of the right of self-defense; that as in other cases of self-defense the person sought to be arrested is justified in taking life only when he has reasonable ground to apprehend that he is in imminent danger of death or great bodily harm; that he is not justified in killing merely for the purpose of resisting an unlawful arrest or other restraint upon his liberty, where the only injury which could be reasonably apprehended is an unlawful detention for a short time or other injury short of death or great bodily harm; that, the officer attempting to make an unlawful arrest is simply the aggressor in the difficulty, and stands in the shoes of any other aggressor in a like difficulty. It is true that a few courts hold that a person has a right to resist an unlawful arrest, even to the extent of taking the life of the officer seeking to make the arrest, if it be necessary to do so to regain his freedom, or if it is necessary as an alternative to submission. These courts hold that a person has as much right to resist such an invasion of his personal liberty as he has to resist death or serious bodily harm; that the right to resist an unlawful arrest *Page 336 and the right of self-defense are fundamentally separate and distinct. In 30 C.J. at pages 77 and 78, section 257, this question is discussed and the cases collated in the notes. We prefer to align ourselves with the majority rule. We hold, therefore, that an officer attempting to make an unlawful arrest is not cut off from the right of self-defense; that he is only the aggressor in the difficulty and is in no worse attitude than any other aggressor under like facts and circumstances.
It is true that the court gave instructions at the request of appellant to the effect that he was not cut off from the right of self-defense; that, if when he shot Cherry he was in imminent danger of losing his life or being done great bodily harm at the hands of Cherry and shot to avoid such danger, then they should return a verdict of not guilty. But those instructions and the erroneous instruction for the state referred to are not reconcilable; they cannot be read together and any correct principle of law deduced therefrom. In fact, they are squarely in conflict. The instruction for the state informed the jury that appellant was cut off from the right of self-defense, while the instructions given appellant told the jury the exact contrary, that he was not cut off from the right of self-defense. Therefore the instructions, construed together, gave the jury no certain guide. In that state of case the instruction for the state was harmful and was calculated to mislead the jury.
While Mr. Barfield was on the stand as a witness for the state, appellant sought by cross-examination to discredit his testimony in the following manner: He had testified to facts tending to show that appellant shot the deceased not in necessary self-defense, but when appellant was in no danger either real or apparent of the loss of his life or being done great bodily harm at the hands of the deceased. The witness was asked if he did not state on the morning after the killing to certain persons that Cherry was so large and powerful that appellant and Willis could not handle him at all; that during *Page 337 the fight Cherry threw the officers "right and left." The court would not permit the predicate thus to be laid for the purpose of contradicting the witness. We think the court erred. If it is true that Cherry was a powerful man and threw the officers "right and left," this fact would tend to discredit the testimony of Mr. Barfield to the effect that when the fatal shot took place appellant and Cherry were eight or ten feet apart. The evident purpose of appellant in seeking to lay the predicate by the cross-examination of this witness was to discredit his testimony, which may always be done in the proper manner.
Appellant sought to prove by Miss Alderman, a nurse in the hospital where the deceased died, and who nursed the deceased, that a short while before Cherry died he stated that "he didn't think he was going to live," and that he wanted the appellant to know that he (appellant) was not at fault. The court ruled out this testimony because it was not shown to be a dying declaration. In so doing the court did not err. This court has repeatedly held that, in order for an alleged dying declaration to be admissible in evidence, the declarant must have given upall hope of recovery; that he must be conscious that death is certain and impending; that it is only under those conditions that the dying declaration carries with it the sanctity of the oath of the declarant. It will be noticed that Cherry did not state to Miss Alderman that he knew he was going to die or that he was going to die, but instead he said that he did not think he would live.
Appellant introduced a large number of witnesses who testified as to his good character for peace. On cross-examination the court permitted the district attorney over appellant's objection to seek to discredit the testimony of some of the character witnesses by asking them as to particular deeds of violence alleged to have been committed by the appellant after the homicide. The state is not entitled to bring out on cross-examination *Page 338 of a witness called to prove the good character of the accused that, after the commission of the crime, he had heard that the accused had been guilty of actions and conduct that would indicate that the witness was mistaken in his estimate of his character. To permit that character of inquiry to extend down to the arrest and trial of the accused would largely destroy the probability of innocence arising from good character, even though only a single lawless transaction had taken place after the homicide. Underhill on Evidence, pars. 4, 5, section 83, p. 150.
We find no merit in any of the appellant's other assignments of errors.
Reversed and remanded.