Jesse Dyson was convicted of the murder of Lewis Jackson, the conviction being for murder in the second *460degree. He appealed to this court; and at the last G-alveston term of this court the judgment was reversed and the cause remanded. Being tried again, he was convicted of manslaughter, and his punishment was assessed at two years confinement in the penitentiary. From this last judgment he again appeals to this court.
The case made by the State, that upon which it must rely in order to support the conviction, after eliminating all evidence which is favorable to the defendant, is this: Isaac Dyson and his brother Jesse Dyson, the defendant, were, on the thirtieth day of March, 1883, walking quietly and peaceably along the sidewalk of the town of Orange. Lewis Jackson, the deceased, •a larger man than Isaac Dyson, without any authority or pretension of authority, and not being an officer of the law, with his pistol drawn and held muzzle up, rapidly approached Isaac Dyson and commanded him to hold up his hands. Jackson seized Dyson by the collar with his left hand, holding his pistol in his right, with the muzzle still elevated. When Jackson seized Dyson he told him that he intended to take him, Dyson, to the sheriff. Dyson replied: “You have got no right to arrest me; I have done nothing to be arrested for, and I am not going.” Jackson then began to drag Dyson off, and, Dyson resisting, a scuffle between them ensued. Dyson caught hold of his arm or hand, or perhaps the pistol, the scuffle continuing— ■Jackson attempting to drag Dyson off, and Dyson still resisting. When the pistol went off Jesse Dyson immediately fired and ■shot Jackson twice. Jackson, however, did not release Isaac Dyson until after the second shot. Jesse Dyson fled. This rencontre was attended with loud talking and swearing.
The theory of defense was that, when the arrest was made, Jackson ran up to Isaac Dyson, pointing his pistol at his breast, telling him to throw up his hands, etc., and that when the pistol fired, Jackson was attempting to shoot Dyson.
Defendant was placed upon trial for manslaughter. The court below confined the jury to this offense only.
Justifiable homicide was the sole defense interposed by the defendant. A successful interposition of this defense was, by the charge, made to depend on the existence of these facts, to wit: That it reasonably appeared to the defendant from the acts, or words coupled with the acts, of Jackson, that it was the purpose and intent of Jackson to commit the offense of murder, and that Jesse Dyson killed Jackson while he was in the act of com-*461matting the offense, or after same act done by Jackson showing, evidently, an intent to commit such offense; and that the attack upon the person of Isaac Dyson, in order to justify Jesse, was such as created a reasonable expectation or fear of death or some serious bodily injury. If all of these facts were true, most certainly the defendant could plead them in support of his defense of justification. But under the facts of this case—those relied upon by the State—was it proper and just to the defendant for the court by its charge to charge justification alone upon the existence of these facts? Was it necessary, in order to the defendant’s justification, for the acts, or words coupled with the acts, of Jackson to show the purpose and intent to commit murder? Or was it necessary that the defendant should kill Jackson while he was in the act of committing the offense, or after some act done by Jackson showing evidently an intent to commit such offense? If so, this violent, unauthorized and wanton arrest and detention of Isaac Dyson, and the outrageous attending circumstances, are not in this case, and in this investigation cannot be looked to except as lights by which the acts of Jackson are to be viewed in determining whether or not he intended to murder Isaac Dyson or do him some serious bodily injury.
The authorities are not harmonious, but the great weight of authority holds that a man will not be justified if he kills in defense against an illegal arrest of an ordinary character. Yet the law sets such a high value upon the liberty of the citizen that an attempt to arrest him unlawfully is esteemed a great provocation; such as will reduce a killing to manslaughter in resisting such an arrest. (Calvin v. The State, 6 Caldw., Tenn., 291; Commonwealth v. Drue, 4 Mass., 391; Noles v. The State, 26 Ala., 31; Rex v. Curran, 1 Moody C. C., 132; 1 Hale P. C., 457; Roberts v. The State, 14 Mo., 146; Com. v. Carey, 12 Cush., 246; Tackett v. The State, 3 Yerg., 392.)
“On the other hand, while this is the general rule, still the killing may be done under such circumstances of deliberation or cruelty as will afford proof of express malice, in which case it would be murder.” As when the prisoners had been some time in custody, and the informality of the warrant under which they were held was unknown to them, and they deliberately planned and carried out an attack which resulted in the death of one of the officers; this was held murder, and not manslaughter. (Rex v. Allen, 17 Law Times.)
Let us return to the first proposition, which is that of a killing *462which takes place in defense of an illegal arrest of an ordinary character, Against an illegal arrest of an ordinary character the killing will be manslaughter. ' How, suppose the arrest is illegal and of an extraordinary characterj suppose it is of a violent and dangerous character, attended by circumstances of great enormity, will the killing still be manslaughter? The ■charge of the court answers this question in the affirmative, unless the aggressor was in the act of, or had done, some act showing evidently an intention to kill Dyson or do him some great bodily injury. To this proposition we cannot agree. And why can we not sanction such a proposition? Our reasons are these:
First. Isaac Dyson was in the right.
Second. Jackson was the aggressor.
Third. Dyson had the right to regain his liberty.
Fourth. Jesse Dyson, the brother of Isaac, had the right to liberate his brother.
Fifth. The right to regain his liberty carried with it the right to use all necessary means to accomplish the end, and the party deprived of his liberty had the right to the initiatory step to effect the result, and was not bound to await some act on the part of the aggressor tending to show an intention to kill or do him some serious bodily injury. The issue was false imprisonment or liberty, and not alone whether Dyson was in danger of his life or some serious bodily harm.
If, therefore, Dyson had the right to regain his freedom at all hazards, by the use of any and all means necessary to effect that end, by what rule are the juries to determine when a resort to means deadly in their character becomes necessary? That which obtains in passing upon the necessity of resorting to such means in resisting aggressions upon property, home or person. “In resisting aggressions upon property and person he may stand his ground and repel force by force, taking care that the force employed does not exceed the bounds of mere self-defense and prevention, and that it does not become enormously disproportionate to the injury threatened. To be effective it may be a superior force to that which it is sought to control and overcome.” In expelling an intruder from his home, or in regaining his freedom, he may use just such force as is required bo expel the intruder, or to regain his liberty; and in order to be successful he may not only place himself upon an equal footing with the aggressor, but may resort to those means which are *463sufficient to overpower and control that to which his adversary has resorted.
If, therefore, to expel the intrudór, or regain his liberty, the use of deadly weapons in a deadly manner is necessary to control and bring into subjection the means used by the aggressor, he may so use these weapons, even to the taking of the life of his adversary.
Let us here illustrate: A ruffian enters A.’s home, and while in the same uses insulting or obscene language, or does some act offensive to A. or his family. A. commands him to leave. He refuses to do so. He is a much larger man than A., in fact is his physical superior. Must A. resort to nature’s weapons and try his strength with the intruder? This would be not only folly but useless and inevitably unsuccessful. But as A. has the right to expel this intruder, he resorts to weapons which are not in their nature deadly, and reiterates his demand to leave. The intruder draws a “Bowie” knife, intending it for immediate use if necessary, but makes no attempt to use it, nor does any act showing evidently an intention to commit a felony, but replies that he will not go, but that he intends to stay. A. seizes his loaded gun and again orders him to depart. The aggressor replies, with weapon ready, that he will not; that he intends to remain. Can A. shoot, or must he await legal redress? Having the right to expel the ruffian, he has the right also to use any and all means necessary to consummate this right. Then, we answer, that he can shoot.
Are not the principles contained in this illustration applicable to the case in hand? Does the case made by the evidence relied on by the State require these principles to be submitted to the jury by proper instruction from the court below? Unquestionably it does. Jesse Dyson and his brother Isaac were quietly and peaceably walking along the street. The deceased, Jackson, without any pretense of being an officer even, and without a shadow of authority or claim of authority, drew his pistol and with loud oaths rushed upon Isaac Dyson, commanding him to hold up his hands, and seized him by the collar, and attempted to drag him before the sheriff. Dyson tells him that he has no right to arrest him; that he had done nothing for which to be arrested, and that he would not go with him to the sheriff. A struggle ensues, Jackson, with one hand in Dyson’s collar, in a violent and wanton manner endeavoring to carry Dyson off, w ith his pistol in a position for immediate use. Dyson on the *464other hand was demanding to be released, and was resisting his efforts to be taken off by Jackson. Whilst thus engaged Jackson’s pistol fired, the muzzle being up. When the pistol fired, Jesse shot and killed Jackson. Jesse’s rights being precisely the same as Isaac’s, what should the jury have been told by the charge? In substance that, if from the evidence, looking to all of the surrounding facts, it reasonably appeared to the defendant that it was necessary to shoot and kill Jackson in order to liberate his brother, they should acquit him.
(The Reporters will give the evidence.)
The charges given by the court upon the subject of justifiable homicide were applicable to the other phase of the case, to wit, that which was presented by the evidence which tended to prove that Isaac Dyson was in danger of loss of life or some serious bodily harm. There is no part of the charge which attempts to apply the principle above enunciated to this case, though the counsel for defendant, in their charge number two, twice called the attention of the court to this view of the case.
We will not discuss the action of the court in refusing a new trial because of the application to postpone the trial or continue the cause. Because the law applicable to the case was not given in charge to the jury, the judgment is reversed and the cause remanded.
Reversed and remanded.
Opinion delivered June 20, 1883.