This is a conviction for murder in the second degree, with the penalty fixed at confinement in the penitentiary for twenty-four years.
The appellant, Jones, lived in San Saba county. Thomas H. Nowlin lived in, and was deputy sheriff for, Llano county.
The following capias was issued by the clerk of Jeff Davis county:
“The State of Texas: To any Sheriff of Texas, Greeting:” Then follows the command to arrest Jim Jones upon a charge by indictment for theft of cattle in Jeff Davis county. This *11oapias came to the hands of Caldwell Roberts, sheriff of Llano county, who, on the fourth or fifth day before the homicide, gave it to Nowlin, his deputy, with orders to go and arrest the appellant.
On the fifth day of April, 1888, Nowlin, accompanied by Lee Peck, just after sun rise, went to the house of appellant to execute the capias. Jones and wife were in bed. Nowlin hallooed. Jones, saying “he would be there in a moment,” soon opened the door with a shot gun in his hand.
Peck, relating the facts attending the homicide, testified:
“Nowlin said: ‘Jim, we have got a paper for you,’ (calling it by some name, I do not recollect what.) Defendant said ‘that is all right; I thought it was a mob,’ or ‘damn mob.’ He also said that some of the people around there had been accusing him of horse stealing. Jones said, ‘let me see the papers.’ Whilst the conversation was going on, Nowlin and myself had dismounted and walked up to the door. Nowlin said ‘shall I read the paper, or shall you read it?’ Defendant said he would read it. Defendant then took the paper from Nowlin, who handed it to him, and read until he got down to the words ‘Jeff Davis county.’ The word ‘Jeff’ was blotched, and defendant stepped up to Nowlin and asked him what it was. Nowlin told him, and defendant stepped back and read on a while, then suddenly raised his gun and fired. I saw him raising his gun. Nowlin commenced raising his pistol, and they both fired about the same time—can’t say which fired first. While defendant was reading the paper, Nowlin pulled out his pistol and held it down by his side. Don’t think Jones saw Nowlin when Nowlin pulled out his pistol. Nowlin fired two shots—the first so close together with Jones that I could not tell who fired first. Nowlin fired his second shot after he had fallen.”
W. D. Wright, a witness for the State, testified that the pistol shot was fired first. “I heard one pistol shot before I heard the shot gun, and one pistol shot after.” “I heard the first pistol shot from one to one and a half seconds before I heard the shot gun. I heard the second pistol shot from three to four seconds after I heard the shot gun.” “Defendant was wounded slightly in the shoulder.” “I am a brother-in-law of Jones.” “I was about one hundred and ten steps from defendant’s house when the shots were fired.”
The wife of defendant testified that she and her husband were in bed when the parties oame to the house; that she waked *12lier husband and remained on the bed when he went to the door. ■“Nowlin handed the defendant a paper and he read a part of it, and said to Mr. Nowlin: ‘Tom, here is a word I can’t make out.’ Mr. Nowlin said he could. Defendant then stepped one step and handed the paper to Nowlin. Defendant stepped back one step and Nowlin finished reading the paper. Defendant was standing, and had been all the time, with his gun in his right hand, holding it about the lock, the muzzle resting on his foot. When Mr. Nowlin finished reading the paper, defendant spoke and said: “Tom, I will not go with you.” As defendant said that, Mr. Nowlin said: “You won’t?” and threw his pistol up and fired, hitting defendant on the shoulder. As soon as defendant could, he threw his gun up with his right hand and fired. At the firing of defendant’s gun I jumped out of bed, and just after I did so Mr. Nowlin fired a second shot.”
Henry Birdwell testified that he heard the ’three shots—-two rifle or pistol shots and one a shot gun—the pistol or rifle shot first, then the shot gun, and then the rifle or pistol again. He was about a mile and a quarter from defendant’s house.
In his dying declarations the deceased stated that the defendant fired first, but that the shots were almost together. The above is a sufficient statement of the facts to present the points raised on the charge of the court.
At common law, a sheriff has no jurisdiction beyond the borders of his county. The Constitution of this State provides for this officer, giving to the Legislature the right to prescribe his duties. We have searched the statutes carefully, but find no act giving jurisdiction to the sheriff to serve a capias beyond the limits of his county. Hence, the attempted arrest in this -case was unlawful.
What, therefore, are the rules of law applicable to a homicide committed in the prevention of an illegal arrest?
1. Whether the arrest be legal or not, the power to arrest may be exercised in such a wanton and menacing a manner as to threaten the accused with loss of life or-some bodily harm. In such a case, though the attempted arrest was lawful, the Lilling would be justifiable.
2. “Though a man will not be justifiable, then, if he kill in ■defense against an illegal arrest of an ordinary character (not such as is mentioned in the first rule), yet the law sets such a high value upon the liberty of the citizen that an attempt to arrest him is esteemed a great provocation, such as will reduce a *13killing in the resisting of such an arrest to manslaughter. This, principle is declared in Wales v. The State, 26 Alabama, 31; and Commonwealth v. Drew, 4 Mississippi, 391; and is well established, both in England and in this country.” (Rex v. Curvan, 1 Moody C. C., 132; Buckner’s case, Slyle, 467; Tooley’s case, 2 Ld. Raymond, 312; 1 Hale P. C., 457; Foster, 312, sec. 9; Reg. v. Phelps, 1 Car. & Marsh, 180; Stockley’s case, 1 East. P. C., 310; Ferris’s case, C. C., sec. 71; Roberts v. The State, 14 Mo., 146; Comm. v. Thompson, 1 Moody C. C., 80; Comm. v. Carey, 12 Cush., 246; The State v. Oliver, 2 Houston, Del., 604; Tacket v. The State, 3 Yerg., 392; Galvin v. The State, 6 Cold. Tenn., 291.)
Opinion delivered June 27, 1888.Testing the charge of the court by these rules, it will be found clearly wrong, because it fails to submit to the jury these principles of law for their guidance in determining whether the defendant was guilty at all, and, if guilty, of what grade of offense.
In one paragraph of the charge appellant’s right of self defense is made to hinge upon whether he was the person named in the capias, and the further fact that deceased was making or had made an unlawful attack upon him, reasonably calculated to create in a man of ordinary mind a belief that deceased was about to inflict on him death or serious bodily harm. We-think that the appellant’s right to kill would be complete, under the above state of case, whether he was the person named in the warrant or not.
The first charge requested by counsel for appellant was substantially correct, and should have been given. The court should have submitted to the jury the principle of law contained in the rules above given. This was absolutely required by the facts of the case.
There are other matters contained in the record of a very serious character, but, as they will not occur on another trial,, they will not be noticed.
The judgment will be reversed and the cause remanded.
Reversed and remanded.