Appellant was indicted, tried and convicted for the murder of D. P. Pice, and the death penalty was assessed. But two questions presented by the record are noticed: 1, Were the dying declarations properly admitted in evidence? 2, Was *256there error in the charge of the court in omiting to instruct the jury as to the law applicable to a homicide to prevent an illegal arrest?
As a predicate for the dying declarations, these facts were testified to by Grimes, the brother-in-law of the deceased: “ I saw deceased about dark on the fifth day of August, 1886; he seemed to be very much exhausted and suffered considerably.” Doctor Wirt says: “On the morning of the fifth of August I attended D. P. Rice, who was wounded. I found him one and a half miles south of Eddy, in Falls county. He was lying on his chest, face downward, and on his arm, in the shadow of a wagon; he recognized me. I considered him very seriously wounded; it was with a large ball, which passed through the arm and right side, entering the body about one and a half inches to the right of the right nipple, passing out and breaking the eighth or ninth rib. The wound was fatal. He seemed to think he was in a critical‘condition at the time. He asked my opinion about his condition, and what I thought I could do for him. I finally told him I thought the wound a very grave one, a,nd he asked for his mother and family to be sent for. A young man started to unbutton his coat, and I (the doctor) told him to rip it off, and Ri ‘e remarked: ‘Yes, cut it off; I don’t suppose I will have anymore use for it any way.’ He appeared very much exhausted from loss of blood, and it took him some half or three quarters of an hour to say what he did to me. He said it hurt him to talk, and I could not understand more than half he said.” Rice did not rally from the time the doctor first saw him until his death, which was about nine o'clock on the next day. He made his statement on the morning of the shooting.
As a predicate for the introduction of the declarations of the deceased, the State must prove four propositions of fact: First, that the deceased, at the time of making such declaration, was conscious of approaching death, and believed there was no hope of recovery; second, that such statement was voluntary, etc.; third, that such statement was not made in answer to questions calculated to lead him to make any positive statement; fourth, that he was of sane mind at the time of making the declaration. (Art. 748, Code Crim. Proc.)
How, we are not satisfied with the truth of the first and fourth propositions. When the doctor arrived deceased recognized him, and asked what he thought of his condition, and asked that his family should be sent for, etc. We are not informed how long *257this was before the declaration was made; but the physician informs us that not more than half deceased said could be understood. We are left in the dark as to whether this was caused by exhaustion or mental incapacity. This is a vitally important question. The proof as to whether or not he was conscious of approaching death, etc., was meagre where it should have been full and unequivocal. Appellant is convicted of a capital offense, and the judgment of the court below forfeits his life to the violated law. We must, therefore, be reasonably certain that all the forms of the law have been complied with. Under the facts shown by the record, we do not believe the declarations admissible.
It appears that complaint was made before W. H. Dykes, a justice of the peace in Bell county, charging appellant with an assault and battery. The justice issued a capias, which was delivered to one Morris, he being specially deputized; but that deceased, being a constable of Bell county, received it from Morris. There is evidence going to show that deceased attempted to arrest appellant in Falls county, and that the killing occurred in the prevention of this arrest.
The question presented for discussion is, can a peace officer legally arrest a party accused of crime, beyond the limits of his county? The complaint was made before a Bell county justice, and the capias was issued by him. Under this capias a Bell county constable attempts to arrest the accused in Falls county. We conclude that the constable had not the right to make the arrest. Articles 229, 230 and 231, of the Code of Criminal Procedure have no application to the facts in this case. By article 238, the justice’s warrant is perfectly worthless, and can not be executed in another county than the one in which it was issued, except it be endorsed by a magistrate named in article 237. And if so endorsed, the proper officer of the county of the arrest must make the arrest.
It may be insisted that because Bell county, under the facts of this case, might have had jurisdiction of this offense (Code Crim. Proc., art. 209), that, therefore, the constable of Bell county would have the right to make the arrest. Article 209 has no reference to the powers of peace officers to make arrests. Its object was to settle, in some cases, very troublesome cases of venue. The constable, if appellant was beyond the limits of Bell county, had no right to make the arrest, and the court should have instructed the jury on this phase of the case. It *258is well stated at common law and in this State, that if the homicide is committed to prevent an illegal arrest, the party, as a general rule, would be guilty of manslaughter only.
Opinion delivered March 19, 1887.For this omission in the charge, as also for improperly admitting the dying declarations in evidence, the judgment is reversed and the cause remanded.
Reversed and remanded.