The first error insisted upon is the refusal of the court to grant a continuance of the case on account 'of the absence of witnesses. It has been uniformly decided by this court that granting or refusing a continuance is a matter resting in the discretion of the trial court, and is not reversible on appeal.
The next assignment insisted upon is that the court erred in not laying the case over until the officers of the court had had the time to issue and return the compulsory process for the defendant’s witnesses, which the court had ordered issued, because it would be “an empty mockery to grant the defendant the attachments, without giving the defendant an opportunity to reap the benefit from the order of the court granting the attachments.”
The majority of the court are of the opinion that there was no error in the court’s refusal to quash the *42panel of jurors. The juror who separated from the others was shown not to have mingled with the crowd, and not to have conversed with any one. He merely stepped into a closet, in which there was no other person. It therefore affirmatively appears that no injury resulted therefrom.
We find no reversible error-in the rulings of the court admitting or rejecting testimony offered. Counsel for appellant complains of the condition of the record, and concedes that it is difficult to review the rulings on the evidence for lack of “clearcut and distinct exceptions.” To this we must answer, that we can only review the record presented to us. Some of the evidence admitted against the defendant was not admissible, if prompt and proper objections had been interposed and proper exceptions reserved to the action of the court in admitting it. In some instances it does not appear that any objection was interposed to questions, yet motions were made to exclude the answers, which were responsive. A party cannot thus speculate as to whether the answer will be favorable or unfavorable, and, if the latter, then move to exclude it. Moreover, the court did subsequently exclude some of this irrelevant testimony thus admitted. For example, the court excluded all that George Brantley said as to having received information that the deputy from Wilcox was hunting for a negro from Pine Hill, Wilcox county, and all the testimony as to the woman in question being the wife of the defendant.
Some parts of the oral charge excepted to stated parts of the evidence which were undisputed and did not charge xrpon the effect of the evidence. The part excepted to involved more than one distinct proposition of law, and some of these propositions were correct. If we concede that some of that excepted to was bad, we *43could not reverse, because it was not separated from that which was good; and if the court had excluded that part which was excepted to it would have excluded that which stated a correct proposition of law applicable to the case. And, of course, the defendant had no right to have that.
There was no error in giving the charge requested by the state, nor in the remarks of the court explaining it to the jury. If it could be said to be abstract, this is not ground for reversal because of giving it.
Under the undisputed evidence in this case, the deceased had no authority or right to arrest, or to attempt to arrest, the defendant on the occasion when the deceased was killed. The constable and deputy sheriff, Hughes, had no authority, under the evidence in this case, to. deputize the deceased to arrest the defendant on the occasion on which he attempted to arrest him.
This case is much like that of Lewis v. State, 178 Ala. 26, 59 South. 577. In fact, the defendant in that case killed the person who had arrested him without authority of law, and, strange to say, he was the “individual desired,” when this defendant ivas attempted to be arrested, for no other reason than that his wife had been mistaken for the wife of Lewis. In the Lewis Case, supra, it was claimed by the state that the deceased, the party making the arrest, had been deputized for that purpose by another deputy, and Avas also armed AAdth a warrant or capias to that end. In the case at bar there is no pretense that deceased Avas deputized to arrest this defendant, or that he had any process for the arrest of this defendant. In fact, there was no warrant or capias against this defendant, and no claim that there was. The most that can be said to justify deceased in attempting to arrest the defendant Avas that he had been informed that a felony had been committed in an *44adjoining county, and that the felon was a fugitive; but he had never been informed that this defendant was the felon, but had been informed merely that an unknoAvn woman was in the town of McWilliams, and that she was thought to be the wife of the felon, and he subsequently learned that she was the wife of defendant. The deceased, so far as the evidence shows, knew the defendant, and had known him a long time, and knew he was not a fugitive, and had never been so informed, so far as this record shows. It does appear, however, that deceased was instructed by the constable, Hughes, to locate the husband of this woman whom the deputy from Wilcox had followed to McWilliams; and that there was a reward of $200 offered for the arrest of the fugitive. But there was no probable cause to believe that this defendant was the fugitive.
“Every homicide, perpetrated by poison, lying in wait, or any other kind of willful, deliberate, malicious, and premeditated killing; or committed in the perpetration of, or the attempt to perpetrate, any arson, rape, robbery, or burglary, or perpetrated from a premeditated design unlawfully and maliciously to effect the death of any human being other than him who is killed; or perpetrated by any act greatly dangerous to the lives, of others, and evidencing a depraved mind regardless of human life, although without any preconceived purpose to deprive any particular person of life, is murder in the first degree; and every other homicide committed under such circumstances as would have constituted murder at common law, is murder in the second degree.” — Code 1907, § 7084.
In.the case of an unlawful arrest, or attempt to arrest, killing the person attempting, it.is, as a general rule, manslaughter only. A person seeking unlawfully to arrest another is a trespasser; and the trespass is. *45a ground of provocation sufficient to reduce the homicide of such person in resistance of the arrest from murder to manslaughter, though it is not so reduced, unless the person sought to be arrested actually acted under the influence of hot blood induced by the provocation. And such an attempt unlawfully to arrest gives the person sought to be arrested a right to resist, even to the extent of killing his opponent, if such killing is necessary to save his own life, or to save himself from serious bodily harm; but the necessity must have been real or apparent. The amount of force which he may use in self-defense, however, is that only which is necessary to prevent the carrying out of the unlawful purpose. If excessive force is used in making resistance, the right of self-defense is eliminated; and killing, by means calculated to cause death, with knowledge that the intent was only to arrest, is murder; and an unintentional killing in making such resistance, by means not calculated to cause death, is manslaughter. — 66 L. R. A. 386, 387.
“As a general rule, at common law an arrest could not be made without warrant. If a felony was committed, or a breach of the peace threatened or committed, within the view of an officer authorized to arrest, it was his duty to arrest without warrant and carry the offender before a magistrate. Or, if a felony had been committed, and there was probable cause to believe a particular person was the offender, he could be arrested without warrant. — Holley v. Mix, 3 Wend. [N. Y.] 350, 20 Am. Dec. 702; Burns v. Erben, 40 N. Y. 463. The matter of arrests is now the subject of statutory regulation, largely affirmatory of the rules of the common law. — Cr. Code 1886, §§ 4260-4274. The statutes, and the corresponding rules of the common law, have primary, if not exclusive, relation to the administration *46of the criminal laws of the state.” — Cunningham v. Baker, 104 Ala. 169, 16 South. 70, 53 Am. St. Rep. 27.
“An officer cannot justify an arrest upon the ground that he had reasonable cause to believe the person arrested had committed a felony, unless he has information of facts, derived from those reasonably presumed to know them, which, if submitted to a judge or magistrate having jurisdiction, would require the issue of a warrant of arrest and the holding of the accused to await further examination. — Malcolmson v. Scott, 56 Mich. 459 [26 N. W. 166].” Cunningham v. Baker, 104 Ala. 171, 16 South. 71, 53 Am. St. Rep. 27.
This same doctrine was again announced in the recent case of Suell v. Derricott, 161 Ala. 274, 275, 49 South. 901, 23 L. R. A. (N. S.) 996, 18 Am. Cas. 636, where it is said: “As a general rule, at common law an arrest could not be made without a warrant; but if the felony or breach of the peace threatened or committed within the view of an officer authorized an arrest, it was his duty to arrest without warrant, or, if a felony had been committed, and there was probable cause to believe that the particular person was the. offender, he could be arrested without a warrant; but the matter of arrest is now in this state largely the subject of statutory regulation, which in some degree is an affirmation of the rules at common law. Of course, an officer or a private citizen, under the statute, cannot justify an arrest upon the ground that he had reasonable cause to believe the person arrested had committed a felony, unless he has information of facts, derived from credible sources, or from persons reasonably presumed to know them, which, if submitted to the judge or the magistrate having jurisdiction, would require the issue of a warrant of arrest. — Cunningham v. Baker, 104 Ala. 171, 16 South. 68, 53 Am. St. Rep. 27.”
*47“In all cases of the killing of an officer, or of an assistant, in resistance of an arrest, a material inquiry, in determining the degree of the homicide, is whether the party resisting had knowledge or notice of official character and of presence for the exercise of official authority. If there is not such knowledge or notice, the homicide cannot be more than manslaughter, unless the resistance was fin enormous disproportion to the threatened injury.’ — Noles v. State, 26 Ala. 31 [62 Am. Dec. 711] ; 1 Russell on Crimes, 835; 1 Whart. Am. Cr. Law (9th Ed.) § 413; Commonwealth v. Drew, Cases on Self-Defense, 718; Croom v. State, 85 Da. 718 [11 S. E. 1035] 21 Am. St. Rep. 179; Roberts v. State, 14 Mo. 138, 55 Am. Dec. 97.” Brown v. State, 109 Ala. 89, 90, 20 South. 110.
“It is not the duty of the citizen to' submit to any other than a lawful arrest. It has been said the duty is found in the law side by side with the right of resistance to an unlawful one; and it is quite as important that no one should be unlawfully taken as that every one lawfully accused should be made to answer.’ —Drennan v. People, 10 Mich. 169. The requirements of the statute are drawn from and in affirmation of the common law. They are ample to secure the execution of and submission to legal process; but they are equally intended to protect the citizen from unlawful interference with his personal liberty. It is not intended that he shall yield his person and liberty to the dominion of even a known public officer, certainly not to one unknown, upon his mere demand, who gives no information of his authority. If this were not true, no man would be safe from invasions of his personal liberty, and unlawful arrests would, be made effectual.” — Brown v. State, 109 Ala. 91, 20 South. 111.
*48But the mere fact that an illegal arrest is being-attempted does not, without more, justify the party being arrested in killing- the party attempting to make the arrest. The law upon this subject has been well stated in Noles’ Case, 26 Ala. 31, 42 (62 Am. Dec. 711) : “To excuse one individual for taking the life of another, there must exist a necessity to prevent the commission of a felony or great bodily harm, or a reasonable belief in the mind of the slayer that such necessity does exist. If there is neither the existence of such necessity, nor any reasonable belief of its existence, the law will not acquit the, slayer of all guilt. — Oliver v. State, 17 Ala. 587; Pritchett v. State, 22 Ala. 39 [58 Am. Dec. 250]. The case of a mere trespass upon the person and liberty of the slayer, which created no reasonable belief in his mind that any of the trespassers would commit any felony or do him any great bodily harm, cannot be allowed to constitute an exception to the foregoing rules. When such trespass is threatened or committed, he has no right to kill, unless the unlawful act, when properly and. lawfully resisted by him, is persisted in by the trespasser, until it ultimately results either in an actual necessity on his part to kill, in order to prevent the commission of a felony or great bodily harm, or in the reasonable belief by him of the existence of such necessity.” — 22 Ala. 42, 58 Am. Dec. 250. “We admit the right of any citizen to resist any attempt to put any illegal restraint upon his liberty. But his resistance must not be in enormous disproportion to .the injury threatened. He has no right to kill to prevent a mere trespass, which is unaccompanied by any imminent danger of great bodily .harm or felony, and which does not produce in his mind any reasonable belief of such danger.” — 22 Ala. 43, 58 Am. Dec. 250.
*49It follows, in the opinion of Justices Anderson and Sayre and of the writer, that charges 20, 21, 22, and 24, requested by the defendant, stated correct propositions of law as applied to the facts of this case, and had no duplicates; and that their refusal was reversible error.
Justices Somerville and de Graffenried are of the opinion that charges 20, 21, and 24 were correct, and should have been given, but are not willing to reverse as to charge 22. None of the Justices, however, except the writer, is willing to reverse as to the action of the trial court in declining to postpone the trial until the process desired for the witness should be issued and returned; so what is hereafter said by the writer on this subject is his individual view, and not that of the court.
There were, however, other charges requested by the defendant, which stated correct propositions of law, but as to each of such the court gave other written charges which were substantial duplicates of those re- • fused, and as to these it .ivas error without injury.
Reversed and remanded.
Anderson, Sayre, Somerville, and de Graffenried, JJ., concur, as above shown. Dowdell, C. J., and McClellan, J., dissent.