delivered the opinion of the court.
Dr. Irby testifies that the deceased ‘' could have been shot from the side, the way the bullet went in.” Harris testified *102that the pistol of deceased ‘' was in his right-hand hip pocket, and deceased was facing witness kinder sideways; ” and, again, that deceased was close enough to the Winchester; all he had to do was to reach over and get it. It is shown that the range of the ball was inward and upward. Both defendants say that Harris threw down his Winchester, and that deceased, who they say had put his hand on what appeared to be a pistol in his hip pocket, and who, Harris says, appeared to be " fingering his pistol,” which, he-says, " appeared to hang back,” sprang towards the Winchester to get it, and they both say Harris then shot deceased with his pistol. The appellants offered to show threats communicated to them the night before, to the effect that the deceased said he would not be arrested; that he would " kill any two men who came to arrest, ’ ’ etc. This was excluded, and a number of instructions presenting the theory of self-defense were refused.
The testimony for the state might well have warranted the jury in finding a verdict of murder, if that had be enaccepted and the testimony as to threats admitted, and instructions giving the appellants the benefit of a submission of their theory of self-defense to the jury had been given. But the court refused the instructions presenting this theory, and shut out all evidence as to threats. We cannot weigh the testimony offered in the light of the charges refused, or the testimony detailed above in the light of these charges, supposing them to have been given. It was for the jury to say, with this testimony in, and these instructions given, what credit they would give defendants’ witnesses and theory. Unless we are clearly satisfied that in no reasonably possible view was there any testimony supporting-defendants’ theory offered or admitted in evidence, we cannot say the instructions were properly refused, or the threats properly excluded. After careful consideration, we are not thus clearly satisfied, looking especially to the testimony of Dr. Irby. The wound itself speaks most convincingly, and goes a long way towards justifying the action of the learned judge *103below in determining, as he must have done, that the testimony showed a case so clearly and manifestly one of murder as not to make it a proper one for the admission of the testimony as to threats, or the granting of instructions on the theory of self-defense. But the testimony of Dr. Irby, coupled with that of the defendants, and the range of the ball “upward,” which might as well indicate a stooped position in the effort to pick up the Winchester as in flight, it seems to us so far meet the fact of the shot in the back as to have made it safer to admit the testimony and grant the charges, leaving the jury, on the whole case, to accept or reject the defendants’ theory.
Section 2403, code 1892, appears as § 2199, code 1880; § 1311, code 1871; art. 11, p. 406, code 1857, and was first enacted as § 21 of the act of June 28, 1822 (Laws, p. 8). Originally, it manifestly related to all process, civil and criminal, as an examination of that act will clearly show. In codes of 1857, 1871, and 1880 it appears in the separate chapter on civil practice, and the language of § 2403 — “party to the cause, etc.”' — seems to contemplate only civil cases, especially taken in connection with § 1372, code 1892, last clause, which provides that ‘‘private persons may also make arrests, ’ ’ this last relating only to criminal cases, and being declaratory of the common law. 1 Bish. on Cr. Proc., § 188. Whether § 2403 relates only to civil cases or not, however, under the facts of this case, the appellant, having acted under the warrant, should have been treated as clothed with the protection thrown around officers cie facto making arrests.
This, too, leaving out of view § 1372, code 1892, under which we are inclined to hold the warrant legally issued, not because of ‘ ‘ any emergency ’ ’ having arisen, within the meaning of § 2403, code 1892, which seems to relate now only to process in civil cases in which there is good reason for waiting till the regular officers can serve process, unless an “emergency ’ ’ arises, since, usually, no harm can come by waiting, but from the express power given by § 1372, code 1892. The *104power to issue a warrant to a private person to make an arrest, necessarily includes the power to deputize a private person to execute such warrant. And, in criminal cases, it is to be remembered that there is imperative need, often, that the arrest shall be made at once, by a private person under warrant, not stopping to see whether an ' ‘ emergency, ” required to make proper the deputization of a private person in civil cases, has arisen, else the offender might escape. These views sufficiently indicate the lines along which the case should proceed on the new trial in the court below. The judgment is
Reversed, and the cause remanded.