On the evidence as it is presented in the record before us, we do not think the conviction in this case should be permitted to stand. Appellant was assaulted by one LaFIore; others engaged in the affray, assisting LaFIore, and were beating appellant when Winn, who was a. deputy sheriff, and who is the party charged to have been assaulted, ran around the train of cars, and, without attempting to arrest any of the parties fighting the appellant, grabbed hold of appellant, and appellant struck him—so he testifies. Other witnesses testify that Winn himself entered into the fight and commenced striking appellant with a board or “doty piece of plank.” Winn testifies that when he arrived at the scene of conflict he told the defendant he was an officer, and would have to arrest him. “Defendant remarked: By God (or God d—n), I will see that you don’t.’ I grabbed defendant, and during the scuffle we had, he struck me with his fist and a plank.” FTo other witness heard Winn tell the defendant that he was an officer and would ha,ve to arrest him. Defendant’s own statement after the fight, and which was introduced in evidence, was that if he “had known Mr. Winn was an officer during the fight, he would have surrendered to him.”
Sow, if appellant, engaged in a serious fight with several other parties, was grabbed by Winn, and, not knowing that Winn was an officer, struck Winn in resistance to what reasonably might appear to him as an assault by Winn upon him, it is clear that he would be justifiable on the ground of self defense. If Winn was an officer really intending to quell the difficulty and preserve the peace, it does appear to us as if he made a most serious mistake in accomplishing that object by grabbing hold of the man who was contending, single handed, against three or four others. And it is but reasonable to suppose that under such circumstances defendant might well have mistaken Winn for “another Richmond in the field,” come to swell the ranks and take part with his assailants.. If he acted upon such reasonable appearances, then he was only exercising his inalienable right of self defense, and should not be punished for doing so.
We do not deem it necessary to discuss the outrages committed upon defendant after his arrest, as disclosed in the record. Suffice it to say, we do not believe from the evidence that de*140fendant’s guilt is made so clear and certain, under all the circumstances of this case, as that his conviction should be permitted to stand as a precedent.
Opinion delivered January 26, 1889.The judgment is reversed and the cause remanded.
Reversed and remanded.