Clark, J.
Assuming that the appellant was present, and a participant in the rencontre which resulted in the death of the deceased, as found by the jury, several questions present themselves in the record, an affirmative answer to each of which is important in determining the validity of the present conviction. These questions may be stated as follows : —
1. Was the deceased, White, an “officer” within the contemplation of law, and authorized by law to execute the warrant of arrest as attempted ?
2. Was the warrant in his possession of sufficient validity in law to authorize the arrest of Thomas Alford, the appellant’s brother?
3. Was it incumbent upon Thomas Alford and his brothers to submit to the arrest and asportation of the former, as attempted ? and, if the arrest was without authority, was the homicide of the deceased necessarily murder?
That the deceased was not an officer, can hardly be gainsaid. All peace-officers known to the law are carefully [560]*560enumerated in the Code, and no such officer as a deputy-marshal of an incorporated town or city appears. Code Cr. Proc., art. 44. It may be that the charter of the city of Fort Worth provides for such officer, but if that be the fact it is not so made to appear in the record. Nor was the deceased a deputy-sheriff of the county. The mere fact that at a previous term of the District Court for the county he had been appointed and had acted as bailiff to the grand jury invested him with no continuing authority as a peace-officer after the adjournment of that body and the cessation of the functions for which he had been constituted. To constitute a deputy, in law, the appointment must be in writing, and thereupon must be indorsed the appointee’s oath of office, taken before he enters upon the duties of his office, and the instrument of appointment, thus indorsed, recorded and deposited in the office of the clerk of the County Court of the county. Rev. Stats., art. 4520. Without these formalities there can be no legal deputation, and the party assuming to act in their absence divests himself of many important privileges in cases of collision, and awards to a party whom he may seek to arrest some advantages of which he would be otherwise deprived. And it is time this feature of the law should be understood and regarded by those charged with the execution of criminal process;
," The liberty of the citizen is as important as the interests of society. In fact, it is one of the fundamental purposes proposed to be subserved by the organization of society and government. The law provides the instrumentalities by which the personal liberty of the citizen may be restrained, temporarily or permanently, in the interests of society, and these exact instrumentalities must be evoked .in case it be sought to effect such deprivation. No person other than an officer can make an arrest, unless a felony or breach of the peace is committed in his presence or within his view, or unless he be specially appointed by a magistrate to [561]*561•execute a particular warrant, or is summoned to the aid of ■an officer, as a part of the posse comitatm
But, conceding that the deceased was an officer, was the warrant in his possession of sufficient validity, to authorize the arrest of Thomas Alford, the brother of appellant? The affidavit made by Shaddy before the county attorney •charged one John Smith with the offence of horse-stealing, and upon this complaint a warrant issued for the arrest of ■John Smith. When this warrant is next seen, after the rencontre, it is found that some one, presumably the deceased, had interpolated the name of “Thomas Olferd” after the name of John Smith, in brackets, and upon this warrant, as altered, the arrest of Thomas Alford was proposed. The name of Thomas Alford was not in the warrant when handed to the deceased for execution. Shaddy testified that at the time he made the affidavit he did not know that Thomas Alford was the name of the man who had sold McCafferty the stolen horse, and that he intended the complaint as against that man.
• Our Constitution provides that “ the people shall be secure in their persons, houses, papers, and possessions from all unreasonable seizures or searches, and no warrant to search any place or to seize any person or thing shall issue without describing them as near as may be, nor without probable cause, supported by oath or affirmation.” Art. 1, sect. 9. Our laws are framed in accordance with this mandate, and carefully provide for the exercise of this right of personal seizure. The complaint must state the name of the accused, if known, and, if not known, must give a reasonably definite description of him; and the warrant of arrest must specify the name of the person whose arrest is ordered, if it be known, and if it be not known, then some reasonably definite description must be given of him. Code Cr. Proc., arts. 233-236.
It is hardly necessary to say that these organic and statutory provisions were wholly disregarded in the case at [562]*562bar. There is no pretence that the magistrate, in issuing the warrant, intended to authorize the arrest of Thomas Alford ; and the statement of Shaddy, who made the complaint, as to his intentions, was wholly immaterial. If he had desired to procure the arrest of Thomas Alford, and by the exercise of reasonable diligence could not ascertain his name, then it was his duty to have ascertained some reasonably definite description of him, and to have fully informed the magistrate or county attorney, at the time of preferring the complaint, as to the identity of the party whose arrest was desired, in order that such description might have been incorporated in the warrant, for the information and protection of the officer who should be called upon to make the arrest. A warrant for the arrest of John Smith does not authorize the arrest of Thomas Alford, or any other person except John Smith; and it is needless to add that if the name of Thomas Alford was inserted without authority, and after the issuing of the process, such interlineation was a fraud and the process a nullity. 2 Archb. Cr. Pr. & Pl. 242; 1 Hale’s P. C. 465; Roscoe’s Cr. Ev. 698; Rafferty v. The People, 69 Ill. 111; 1 East’s P. C. 110, 111. If the complaint and warrant had specified the accused as a person whose name was unknown, but who, for purposes of convenience, was styled John Smith, and who was the vendor of a certain stolen horse sold to one McCafferty on a certain day, or if a physical description of Alford had been set out, or other reasonably definite description, then the warrant might have been available for the purposes intended. As it was, it was wholly void, either as a justification for or protection in the arrest of Thomas Alford.
The warrant of arrest being a nullity, our remaining duty is to determine the extent to which Thomas Alford was authorized to carry his resistance, and how far appellant (his brother) was authorized to extend aid in effecting his liberation, coupled with a further inquiry as to the degree of culpability attached to the homicide resulting from such re[563]*563sistance and liberation. And here we approach a field of legal inquiry which cannot well be styled a terra incognito in the law, and yet, by reason of the embarrassments incident to a protection of personal liberty, on the one hand, and the due conservation of the officers of the law oil the other, it cannot be said that its limits are exactly defined, or that further explorations are relieved altogether of diffi'es.
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Clark, J.
Assuming that the appellant was present, and a participant in the rencontre which resulted in the death of the deceased, as found by the jury, several questions present themselves in the record, an affirmative answer to each of which is important in determining the validity of the present conviction. These questions may be stated as follows : —
1. Was the deceased, White, an “officer” within the contemplation of law, and authorized by law to execute the warrant of arrest as attempted ?
2. Was the warrant in his possession of sufficient validity in law to authorize the arrest of Thomas Alford, the appellant’s brother?
3. Was it incumbent upon Thomas Alford and his brothers to submit to the arrest and asportation of the former, as attempted ? and, if the arrest was without authority, was the homicide of the deceased necessarily murder?
That the deceased was not an officer, can hardly be gainsaid. All peace-officers known to the law are carefully [560]*560enumerated in the Code, and no such officer as a deputy-marshal of an incorporated town or city appears. Code Cr. Proc., art. 44. It may be that the charter of the city of Fort Worth provides for such officer, but if that be the fact it is not so made to appear in the record. Nor was the deceased a deputy-sheriff of the county. The mere fact that at a previous term of the District Court for the county he had been appointed and had acted as bailiff to the grand jury invested him with no continuing authority as a peace-officer after the adjournment of that body and the cessation of the functions for which he had been constituted. To constitute a deputy, in law, the appointment must be in writing, and thereupon must be indorsed the appointee’s oath of office, taken before he enters upon the duties of his office, and the instrument of appointment, thus indorsed, recorded and deposited in the office of the clerk of the County Court of the county. Rev. Stats., art. 4520. Without these formalities there can be no legal deputation, and the party assuming to act in their absence divests himself of many important privileges in cases of collision, and awards to a party whom he may seek to arrest some advantages of which he would be otherwise deprived. And it is time this feature of the law should be understood and regarded by those charged with the execution of criminal process;
," The liberty of the citizen is as important as the interests of society. In fact, it is one of the fundamental purposes proposed to be subserved by the organization of society and government. The law provides the instrumentalities by which the personal liberty of the citizen may be restrained, temporarily or permanently, in the interests of society, and these exact instrumentalities must be evoked .in case it be sought to effect such deprivation. No person other than an officer can make an arrest, unless a felony or breach of the peace is committed in his presence or within his view, or unless he be specially appointed by a magistrate to [561]*561•execute a particular warrant, or is summoned to the aid of ■an officer, as a part of the posse comitatm
But, conceding that the deceased was an officer, was the warrant in his possession of sufficient validity, to authorize the arrest of Thomas Alford, the brother of appellant? The affidavit made by Shaddy before the county attorney •charged one John Smith with the offence of horse-stealing, and upon this complaint a warrant issued for the arrest of ■John Smith. When this warrant is next seen, after the rencontre, it is found that some one, presumably the deceased, had interpolated the name of “Thomas Olferd” after the name of John Smith, in brackets, and upon this warrant, as altered, the arrest of Thomas Alford was proposed. The name of Thomas Alford was not in the warrant when handed to the deceased for execution. Shaddy testified that at the time he made the affidavit he did not know that Thomas Alford was the name of the man who had sold McCafferty the stolen horse, and that he intended the complaint as against that man.
• Our Constitution provides that “ the people shall be secure in their persons, houses, papers, and possessions from all unreasonable seizures or searches, and no warrant to search any place or to seize any person or thing shall issue without describing them as near as may be, nor without probable cause, supported by oath or affirmation.” Art. 1, sect. 9. Our laws are framed in accordance with this mandate, and carefully provide for the exercise of this right of personal seizure. The complaint must state the name of the accused, if known, and, if not known, must give a reasonably definite description of him; and the warrant of arrest must specify the name of the person whose arrest is ordered, if it be known, and if it be not known, then some reasonably definite description must be given of him. Code Cr. Proc., arts. 233-236.
It is hardly necessary to say that these organic and statutory provisions were wholly disregarded in the case at [562]*562bar. There is no pretence that the magistrate, in issuing the warrant, intended to authorize the arrest of Thomas Alford ; and the statement of Shaddy, who made the complaint, as to his intentions, was wholly immaterial. If he had desired to procure the arrest of Thomas Alford, and by the exercise of reasonable diligence could not ascertain his name, then it was his duty to have ascertained some reasonably definite description of him, and to have fully informed the magistrate or county attorney, at the time of preferring the complaint, as to the identity of the party whose arrest was desired, in order that such description might have been incorporated in the warrant, for the information and protection of the officer who should be called upon to make the arrest. A warrant for the arrest of John Smith does not authorize the arrest of Thomas Alford, or any other person except John Smith; and it is needless to add that if the name of Thomas Alford was inserted without authority, and after the issuing of the process, such interlineation was a fraud and the process a nullity. 2 Archb. Cr. Pr. & Pl. 242; 1 Hale’s P. C. 465; Roscoe’s Cr. Ev. 698; Rafferty v. The People, 69 Ill. 111; 1 East’s P. C. 110, 111. If the complaint and warrant had specified the accused as a person whose name was unknown, but who, for purposes of convenience, was styled John Smith, and who was the vendor of a certain stolen horse sold to one McCafferty on a certain day, or if a physical description of Alford had been set out, or other reasonably definite description, then the warrant might have been available for the purposes intended. As it was, it was wholly void, either as a justification for or protection in the arrest of Thomas Alford.
The warrant of arrest being a nullity, our remaining duty is to determine the extent to which Thomas Alford was authorized to carry his resistance, and how far appellant (his brother) was authorized to extend aid in effecting his liberation, coupled with a further inquiry as to the degree of culpability attached to the homicide resulting from such re[563]*563sistance and liberation. And here we approach a field of legal inquiry which cannot well be styled a terra incognito in the law, and yet, by reason of the embarrassments incident to a protection of personal liberty, on the one hand, and the due conservation of the officers of the law oil the other, it cannot be said that its limits are exactly defined, or that further explorations are relieved altogether of diffi'es.
may be safely said that to a just and reasonable extent the right of resistance to illegal official action is essential, not merely to all free government, but to any government whatever. Even in despotic Borne this right was repeatedly and unreservedly recognized, and if there was no jurisdiction and authority in the officer, then the terse command issued, “vim vi repeliere licet” At the time the common law took shape, feudalism was the true governmental model, and implicit obedience to all in authority was exacted ; and the decisions in those early days inculcated the doctrine that when officers of justice transcended their powers, the remedy was not resistance, but submission, and subsequent appeal to the law for redress. Whart. Cr. Law., sect. 1288. At an early day, however, important modifications seem to have been engrafted upon the doctrine of official infallibility and absolute non-resistance to official authority, and from the decision in Tooley’s Case, 2 Ld. Raym. 1296, which was decided in the eighth year of the reign of Anne, it has been generally conceded, without much apparent reason, that if an officer or other person attempts an arrest of the subject or citizen, without lawful authority, and is slain in the attempt or after the arrest is made, the homicide is manslaughter and not murder ; and it is indifferent whether the slayer knew of the unlawful character of the proposed arrest or not, provided that fact was developed upon trial, j The Tooley case has received much adverse criticism, notably from Foster, in his Discourses ;:,but these criticisms relate chiefly to the power of interference by en[564]*564tire strangers in behalf of a prisoner already in confinement, and concede the lawfulness of such interference by a fellow-servant, friend, or brother of the person incarcerated.
The general principle enunciated above has withstood all criticism, and is regarded as the common law in England and in most of the American States. Rex v. Curvan, 1 Moo. C. C. 132; Rex v. Thompson, 1 Moo. C. C. 80; Rex v. Phelps, 1 Car. & M. 180; Rex v. Patience, 7 Car. & P. 775; 1 Hale’s P. C. 457; 1 East’s P. C. 310; Tackett v. The State, 3 Yerg. 392; The Commonwealth v. Carey, 12 Cush. 246; Roberts v. The State, 14 Mo. 146; Rafferty v. The People, 69 Ill. 111; The State v. Belk, 76 N. C. 10; 2 Archb. Cr. Pr. & Pl. 242; Roscoe’s Cr. Ev. 698; Whart. on Hom., sect. 227. And the same principle has been recognized by this court. Goodman v. The State, 5 Texas Ct. App. 349; Johnson v. The State, 5 Texas Ct. App. 47; James v. The State, 44 Texas, 314.
In treating of the prevention of offences by the act of a private person, our Code of Criminal Procedure provides as follows: —
“Art. 80. The commission of offences maybe prevented, either —
“1. By lawful resistance ; or, —
“ 2. By the intervention of the officers of the law.
‘ ‘ Resistance to the offender may be made as hereinafter pointed out, either by the person about to be injured, or by some person in his behalf.
“Art. 81. Resistance by the party about to be injured may be used to prevent the commission of any offence which in the Penal Code is classed as ‘ an offence against the person.’
* s * * «- * * .
“Art. 83. The resistance which the person about tobe injured may make, to prevent the commission of the offence, must be proportioned to the injury about to be inflicted. [565]*565It must be only such as is necessary to repel the aggression.
“Art. 84. If the person about to be injured, in respect either to his person or his property, uses a greater amount of force to resist such injury than is necessary to repel the aggressor and protect Ms own person or property, he is himself guilty of an illegal act, according to the nature and degree of the force which he has used.
“Art. 85. Any person other than the party about to be injured may also, by the use of necessary means, prevent the commission of the offence.
“ Art. 86. The same rules which regulate the conduct of the person about to be injured, in repelling the aggression, are also applicable to the conduct of him who interferes in behalf of such person. He may use a degree of force proportioned to the injury about to be inflicted, and no greater.”
These provisions having been declared to be in entire harmony with the spirit of the common law (Stockton v. The State, 25 Texas, 772), we might well pause at this point in our investigation, with the declaration of the common-law principle hereinbefore announced, which was not regarded in the trial below. But inasmuch as these articles are directly applicable to the case at bar, and furnish, in a greater part, the principles by which the appellant’s guilt or innocence is to be determined, it becomes essential to determine their proper construction as applicable to the facts before us, and as furnishing rules for guidance incases of this character that may hereafter arise.
A person threatened with the commission of any offence classed as an “ offence against the person” (and unlawful arrest or false imprisonment is thus classed in the Penal Code) is invested by law with two remedies. He may appeal to the law for redress, by application for habeas corpus or some other appropriate remedy, and ordinarily this is practicable, and by far the safer and better course. [566]*566JBut occasions may arise in which the injured party, or party about to be injured, may be remediless at law, or the exigencies of the situation may not admit of the delays necessary in making an appeal to the law. He may know, or have good reason to believe, when his person is forcibly seized, that his captors intend to murder him, or to abduct him beyond the limits of the State, or to conceal and detain^ him indefinitely for the purpose of exacting ransom.i In these and "similar cases an appeal to the law is not practicable or feasible, and the person assailed may resort to his right of resistance, either at the time of his caption or subsequently and pending his detention; for an unlawful arrest is regarded in law as a continuous assault of an aggravated nature. Hor. & Thomp. on Self-Defence, 714. The right •of resistance is not limited to the actual caption, because-it may not be available at the time the seizure is made, by reason of surprise, or ample preparation upon the part of the aggressors, which would render it imprudent then to attempt its exercise. It continues to the cessation of the unlawful detention, and the party detained, or any other person in his behalf, is, under such circumstances, authorized to use all the force adequate to resist the aggression and to effect .the liberation, even to the extent of taking life, if that be essential; and a homicide perpetrated for that purpose alone cannot be regarded as culpable.___j
Again, if a person threatened with arrest, or actually seized, knows or has just cause for belief, or is willing to act upon the assumption, that the arrest contemplated or perfected is without authority of law, and, under the immediate influence of sudden passion arising from that cause alone, he slays the aggressor, and it be demonstrated subsequently that his knowledge was accurate or his belief well founded, and that the person attempting his arrest had no lawful authority for so doing, then such cause must be deemed adequate in law, and the offence could only be manslaughter. And this is so although the arrest is attempted [567]*567in a manner free from violence or the exercise of harsh measures in effecting it. If these are used to an unnecessary or inhuman extent, the homicide might be justifiable. And, of course, any person interfering in behalf of the injured party, and actuated by the same motive and passion, could not be held amenable to a higher grade of culpable homicide. Neither might be altogether justifiable, for the force used may have been out of proportion to the injury inflicted, and neither the life nor person of the injured party so seriously or immediately jeopardized as to prevent an •efficacious appeal to the law; in which case, out of tender regard for the right of personal liberty and its vindication •even to an undue extent, the law looks not with severity upon the act, while at the same time a due regard for human life requires that the perpetrator be held not entirely blameless. 2 Bishop’s Cr. Law, sects. 647, 656.
If, however, it should be developed that the person attempting or making the arrest was a lawful officer, and known to be such to the party arrested or to be arrested, and was authorized by law to make the arrest, and he was slain in the discharge of his duty by the latter, or by some •other person who interfered in his behalf, then the offence would be murder of some degree, according to the other accompanying circumstances, as would also be the case in most instances, whether his official capacity was known or unknown; for the adjudged cases lead necessarily to the conclusion that the grade of the homicide must be determined by the existence or non-existence of legal authority for the arrest, and not by the information of the offender.
Applying these principles to the particular case at bar, we make the following deductions : —
1. If George Alford, the appellant, believed, and had reasonable ground for such belief, at the time he came to the rescue of his brother, that the latter was unlawfully arrested, — that is, arrested without lawful authority, — and that the life or person of his brother was [568]*568in immediate serious danger by means of such arrest, and by reason thereof he contributed by act or word to the death of the deceased, and the acts done by the appellant and his confederates were necessary to secure the release of Thomas Alford, and without a resort to such extremity the release of the latter could not have been effected, and the deceased had not in fact any lawful authority for such ai’rest, then the homicide was in law justifiable.
2. If the appellant and his confederates came to the rescue of Thomas Alford, believing, and having cause for ■such belief, that the latter, had been arrested without authority of law, and with the purpose of effecting his release by all means in their power, not amounting to. the homicide or serious injury of the deceased, and upon reaching the scene they were violently resisted and assaulted by the deceased, in such a manner as to endanger their lives or .persons, and the deceased was killed in the mélée, and had in fact no authority in law to make the arrest, then the homicide would be alike justifiable.
3. Or if the deceased seized upon the person of Thomas. Alford without lawful authority, and accompanied the arrest-with acts of unnecessary harshness and cruelty, calculated in their nature to aggravate and humiliate the latter, and by reason whereof the said Thomas Alford was incited to' resistance, in which resistance the appellant joined, and which culminated in the slaying of the deceased, then the offence imputable to either could not be more, culpable than manslaughter, and might be altogether justifiable,, according to the nature and severity of the aggravation.
4. If, upon being informed of the arrest, the appellant, under the immediate influence of sudden passion, rushed to the rescue in company with others, and, meeting with resistance in the attempt at such rescue, slew the deceased, and such arrest was without authority of law, then the cause was adequate and the offence manslaughter. If the arrest had been made by virtue of lawful authority, the offence [569]*569would be murder; for he who resists arrest, or interferes in behalf of another under arrest, does so at his peril, and must abide the consequences in case it is ascertained that he has interfered with the due execution and enforcement of the laws.
Manifestly, a theory of the law not in consonance with the principles herein enunciated prevailed upon the trial of this cause in the court below; by reason whereof the judgment is reversed and the cause remanded.
Reversed and remanded,