I concur in the judgment of reversal and in the ruling announced in the first headnote; but I can not agree to the rulings in the second, third, fourth, fifth, sixth, seventh, and ninth headnotes or what is said in the corresponding divisions of the opinion. TTnder the uncontradicted evidence in this case, at the time that the person named telephoned to the chief of police the defendant’s wife and daughter had left the house where the defendant was, and were safe from any further molestation and in the protection of the family of a neighbor in a neighboring home, the head of which, so far as appears from the record, was an able-bodied man. The evidence clearly shows that if the defendant had committed an offense against his wife and daughter, and if the arrest of the defendant was desired, there was ample opportunity to obtain a warrant, and that the defendant was making no attempt to escape. The right of personal liberty can not be infringed by the taking of one’s body into personal custody otherwise than by a lawful warrant. No right of personal liberty is more precious than *144the right of freedom from unlawful arrest. The law makes but three exceptions. One is where the crime is committed in the presence of the person seeking to make the arrest, and this exception makes no distinction between an officer and a private person. In such a case any one who sees the crime committed may arrest and hold the offender until other means of effecting his lawful custody are available. The second is where there is lack of an officer to issue a warrant; and the third is where the offender is seeking to escape. None of these appear in this case.
I can not agree to the second division of the opinion, because the facts of the case do not present any circumstances which would have authorized the policeman to enter the defendant's home without a warrant. The request of the wife, even. if partly proper, presented an alternative ultimate which was illegal. It naturally follpws that had this evidence been excluded the court would not have given the instructions which are dealt with in the third headnote. The testimony dealt with in the fourth headnote was perhaps immaterial, but it was nevertheless prejudicial to the defendant, and in my opinion the ruling in the fourth headnote is incompatible with the ruling of the court in the first headnote. In view of what has already been said with regard to the right of the deceased officer to go to the home of the defendant with the option either to “quiet him or put him up,” the evidence as to what the wife of the accused said, not in the presence of the defendant, but at a different place and without his hearing, was inadmissible, and its admission was not cured by the statement of the court that it was admitted “only to explain the conduct of Mr. Atkinson after that. 'It is not admitted to establish the fact of the drunkenness of the accused, and you will not consider it for that purpose.” Furthermore, this evidence was objectionable on the ground that it was hearsay, and upon the ground that the wife is incompetent as a witness against her husband. In my opinion, counsel for the State, although he may be authorized to refer to a defendant on trial for murder as one guilty of murder, and to call him a murderer, was not, under the evidence in this, case, authorized to denominate the accused as an assassin. One may be a murderer under several phases of our law, and yet not with propriety be denominated by the foul term assassin. The court should have charged the jury, as timely Requested, “that it is the duty of arresting officers, under *145circumstances affording reason to believe that their object and official character are unknown to persons whom they seek to arrest, to so inform the latter. The officer must at the time be engaged in executing his duty, and the defendant must be so notified thereof; and unless there be notification or knowledge to this effect, the killing of the officer would not be murder.” It was error to refuse this charge, because the request or instruction to the officer gave him the alternative of arresting, if he chose, in disregard of law, and there is no reason disclosed by the evidence why he should have entered the home of the accused for the purpose of persuading 'the accused to calm himself. It does not appear that the deceased was a neighbor, a relative, a friend, or was even personally acquainted with the defendant.