dissenting. In addition to giving in charge to the jury the general .-code sections on self-defense, the trial judge .also charged the jury concretely'as follows: “Gentlemen, if you. should believe from the evidence that at the time the shooting occurred the deceased made threats to lock up defendant or kill 'him, at the same .time pulling his pistol and pointing it at the defendant, and if yo.u should believe that the circumstances were sufficient at the time to excite the fears of a reasonable man, .and that the defendant really acted under the influence of those fears, and not .in a .spirit of revenge, when he shot at the deceased, then you should find the defendant not guilty.” This presented the contention -of the defendant in almost the exact words in which he in his statement had presented it. I think *829this answers ■ every reason stated in the majority opinion for the grant of a new trial.
There is no need to make confusion where simplicity normally exists, by attempting to lay down a different rule of justification through self-defense, where the deceased, though an officer, attempts an arrest without authority, from that rule which would obtain'if the deceased were a private citizen. The fact that the deceased was an officer and that the killing occurred pending an. arrest becomes relevant merely for the purpose of determining whether the arrest was an assault and a trespass, or was a lawful act. Every arrest is in a sense an assault, but the officer is to he regarded as justified in the assault if his official capacity and' his authority to make the arrest appear. Similarly, if a defendant has killed a private citizen who has made an assault upon him, it would be clearly pertinent to show that the private citizen was justified in the assault, for some reason known to the law..
An officer attempting to make an arrest without a warrant or other lawful authority stands on exactly the same footing as a private citizen would stand. The fact that the citizen is an officer certainly does not enlarge the defendant’s right to kill, even if the officer is attempting to do him some wrong. If the wrong attempted by the officer is a serious personal injury not amounting-to a felony, but sufficient to arouse passion (and an unlawful arrest is ordinarily placed in this category), and the slayer kills-on account of that wrong, it is voluntary manslaughter, just as it would be if the officer were a private citizen and had attempted the same wrong. If the wrong attempted by the officer amounts to a felony, — for example, if he attempts to arrest a defendant by shooting or by clubbing him with a stick likely to produce death, in a manner likely to produce death, — the slayer may kill in defense of a real or apparent danger emanating from this source, just as he might if the same wrongful act were attempted by a private citizen. An unlawful arrest, in an accurate sense of the term, whether committed by an officer or by a private citizen,, being a mere misdemeanor, is never alone sufficient to justify a homicide, though it may be sufficient to reduce it from murder-to manslaughter. If the unlawful arrest or the attempt to.make-an unlawful arrest is accompanied by such violence or show of violence as to put the defendant in actual danger or reasonable. *830fear that a felony is about to be committed on him, it is not the unlawful arrest, but the danger, or the reasonable fear of the danger, that justifies.
It can not be that there is anything either in law or in intrinsic justice which would authorize a person to. sla.y an officer for an act which would not justify the killing if the latter were merely a private citizen. If the officer attempting to make the arrest really believes that he has authority to do so, and it is only upon a critical comparison of the transaction with the law that the illegality of the arrest appears, surely there is nothing in the bona fide mistake of the officer which exaggerates or enhances his assault and trespass upon the person of the slayer, beyond what it would be if the officer were merely a private citizen committing a similar trespass and assault. If the officer, in bad faith, knowing that he has no authority to make the arrest, nevertheless attempts it, he has then done no more to afford the slayer justification than a private citizen would have done who had offered him the same injury.
I do not understand there is anything in the cases of Holmes v. State, ante, 166 (62 S. E. 716), or in Jenkins v. State, 3 Ga. App. 146 (59 S. E. 435), which in any wise militates against this position; especially when the opinions in those eases are read in connection with the particular facts involved in the respective eases. I think the court presented the defendant’s deferlse with sufficient fullness and fairness, and that a new trial should not be granted.