Lamar, J.
(After stating the- foregoing facts.) 1-2. Where one accused of crime is released on bond, he is transferred from the custody of the sheriff to the legal, but friendly, custody of the bail, whose “ dominion is a continuance of the original imprisonment,” but they may at will surrender him again to the custody of the law. If the accused refuses to surrender, the bail can seize and-hold him in order to make delivery in discharge of the bond. But the surety may be a woman, or a- man physically too weak to cope with the accused; or the person charged with the crime may be at a distant point, and out of the reach of his bondsman. Eor these and other reasons, the bail may lawfully deputize an agent to seize the body and deliver him to the custody of the sheriff. [598] Clark v. Gordon, 82 Ga. 613 ; Penal Code, § 935; Taylor v. Taintor, 16 Wall. 371. While this is true, a new trial can not be granted here because of the court’s refusal to give the charge requested as to the right to make such arrest by an agent. There was no evidence in the present case to show that the bail had appointed Coleman to recapture Griffin; and nothing to show that he authorized his son, E. E. Collins, to make such arrest, or delegated to him any power to appoint agents for that purpose.
3. The warrant which E. E. Collins delivered to Coleman was in usual form, and directed as required by the Penal Code. The defendant Coleman was not himself a peace officer, not a member of a posse, and had not been deputized to execute the warrant. The fact that he had it in his possession conferred upon him no authority whatever. The arrest, therefore, is to be, treated as one made by a private citizen. Its legality would then depend upon showing that it was made under the circumstances set out in the Penal Code, § 900.
4. There does not appear to have been any conversation between Coleman and Griffin-; — no demand for a show of the warrant or statement of the authority under which the arrest was made. There was no reply to indicate whether it was at the instance of the bail, under the warrant for resisting legal process, because of a felony known to have been committed or to prevent an escape therefor. We must assume, from the verdict, that the jury found that Coleman did not have authority to make the arrest. If so, the remaining questions must be treated on the idea that the law of arrest is out of the case, and that Coleman was guilty of an assault.
5. At an early day it was held, that if the supposed officer purposely kills the other party for not submitting himself to an illegal arrest, it will, generally speaking, be murder. East’s P. C. 312 ; Foster’s Crown Law, 271. This principle, however, must be subject to many exceptions. If the circumstances are such as to show that there was no malice; if the person attempting such unauthorized arrest in good- faith believes that he has the right to take the person sought to be detained, and in the course of the struggle, and in' the heat engendered by the altercation, he takes the life of the person sought to be arrested, the modern eases seem to hold that he would only be guilty of manslaughter. But if the [599] arrest was not only unauthorized, but was begun with the intent to kill, there would be malice. The killing at the end of a struggle which commenced with a felonious intent to take life would be murder. In the present case there was some evidence that Coleman may have intended to do what he did, and began the arrest, in the first instance, by drawing and presenting a deadly weapon, thereby putting Griffin, as a reasonable man, in fear of his life. If the jury found from the evidence that such was the fact, and that the shooting was but a continuation of an original murderous assault with a deadly weapon, and that this created on the part of Griffin the necessity to shoot in self-defense, Coleman could not justify himself in meeting the same with a like shot, since he brought the necessity upon himself. Roach v. State, 34 Ga. 85. Had the jury found such to be the fact, the verdict would necessarily have been that Coleman was guilty of murder. But the verdict in the present case was not for murder, but manslaughter, and there was evidence from which the jury could have found that Coleman did not begin the arrest by a show of any force which warranted Griffin in fearing that his life was in danger, but was only guilty of the offense of an assault in telling Griffin to consider himself under arrest, while carrying him in the huggy.
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Lamar, J.
(After stating the- foregoing facts.) 1-2. Where one accused of crime is released on bond, he is transferred from the custody of the sheriff to the legal, but friendly, custody of the bail, whose “ dominion is a continuance of the original imprisonment,” but they may at will surrender him again to the custody of the law. If the accused refuses to surrender, the bail can seize and-hold him in order to make delivery in discharge of the bond. But the surety may be a woman, or a- man physically too weak to cope with the accused; or the person charged with the crime may be at a distant point, and out of the reach of his bondsman. Eor these and other reasons, the bail may lawfully deputize an agent to seize the body and deliver him to the custody of the sheriff. [598] Clark v. Gordon, 82 Ga. 613 ; Penal Code, § 935; Taylor v. Taintor, 16 Wall. 371. While this is true, a new trial can not be granted here because of the court’s refusal to give the charge requested as to the right to make such arrest by an agent. There was no evidence in the present case to show that the bail had appointed Coleman to recapture Griffin; and nothing to show that he authorized his son, E. E. Collins, to make such arrest, or delegated to him any power to appoint agents for that purpose.
3. The warrant which E. E. Collins delivered to Coleman was in usual form, and directed as required by the Penal Code. The defendant Coleman was not himself a peace officer, not a member of a posse, and had not been deputized to execute the warrant. The fact that he had it in his possession conferred upon him no authority whatever. The arrest, therefore, is to be, treated as one made by a private citizen. Its legality would then depend upon showing that it was made under the circumstances set out in the Penal Code, § 900.
4. There does not appear to have been any conversation between Coleman and Griffin-; — no demand for a show of the warrant or statement of the authority under which the arrest was made. There was no reply to indicate whether it was at the instance of the bail, under the warrant for resisting legal process, because of a felony known to have been committed or to prevent an escape therefor. We must assume, from the verdict, that the jury found that Coleman did not have authority to make the arrest. If so, the remaining questions must be treated on the idea that the law of arrest is out of the case, and that Coleman was guilty of an assault.
5. At an early day it was held, that if the supposed officer purposely kills the other party for not submitting himself to an illegal arrest, it will, generally speaking, be murder. East’s P. C. 312 ; Foster’s Crown Law, 271. This principle, however, must be subject to many exceptions. If the circumstances are such as to show that there was no malice; if the person attempting such unauthorized arrest in good- faith believes that he has the right to take the person sought to be detained, and in the course of the struggle, and in' the heat engendered by the altercation, he takes the life of the person sought to be arrested, the modern eases seem to hold that he would only be guilty of manslaughter. But if the [599] arrest was not only unauthorized, but was begun with the intent to kill, there would be malice. The killing at the end of a struggle which commenced with a felonious intent to take life would be murder. In the present case there was some evidence that Coleman may have intended to do what he did, and began the arrest, in the first instance, by drawing and presenting a deadly weapon, thereby putting Griffin, as a reasonable man, in fear of his life. If the jury found from the evidence that such was the fact, and that the shooting was but a continuation of an original murderous assault with a deadly weapon, and that this created on the part of Griffin the necessity to shoot in self-defense, Coleman could not justify himself in meeting the same with a like shot, since he brought the necessity upon himself. Roach v. State, 34 Ga. 85. Had the jury found such to be the fact, the verdict would necessarily have been that Coleman was guilty of murder. But the verdict in the present case was not for murder, but manslaughter, and there was evidence from which the jury could have found that Coleman did not begin the arrest by a show of any force which warranted Griffin in fearing that his life was in danger, but was only guilty of the offense of an assault in telling Griffin to consider himself under arrest, while carrying him in the huggy.
6—9. On that theory, therefore, the transaction from inception to termination is to be governed by the law applicable to assault .culminating in a homicide by the person who was the original assailant. Thus treating it, the unlawful arrest — the assault — would have justified Griffin in breaking away, resisting, and repelling force with force. But the force which Griffin could thus rightfully use could only be proportionate to that exerted by Coleman, and sufficient to avoid the detention. If Coleman said, “ Consider yourself under arrest,” and laid hold of Griffin with a view of making the arrest effective, it was a wrong, but not one for which he forfeited his life, either at the hand of the law or at the hand of Griffin. Such conduct did not put Griffin in bodily danger. It provoked an assault, but not a felony. It did not create a legal necessity to kill. In the eye of the law liberty is very sacred, but so also is human life. If Griffin met -an unlawful assault with force proportioned to the attack, he was in the right. As long as he remained in the right Coleman could not justly [600] shoot. But if Griffin resisted with disproportionate and therefore unlawful violence, — if without being put in real or apparent danger of life or s'erious bodily harm he fired upjn Coleman for a mere assault, he became a wrong-doer, and Coleman became at once clothed with the right of self-defense against that which was not then lawful resistance, but an unlawful attack. For Coleman under such circumstances to fire and kill Griffin would not be murder or manslaughter, but justifiable homicide. The decision in State v. Campbell, 107 N. C. 949 (5), is opposed to this view. .We find also a number of cases in other jurisdictions which rule that .one who provokes a difficulty without felonious purpose, and during its progress is compelled to take the life of the person whom he attacks • in order to save his own, can not be entirely justified upon the grounds of self-defense, but will be guilty of manslaughter. State v. Parker, 106 Mo. 218. See other authorities to the same effect cited in Clark’s Criminal Law, 183-4.-These decisions are based upon the wise and salutary principle, which is also recognized in this State, that the slayer must be faultless. Haynes v. State, 17 Ga. 465 (5). But while the direct question here involved has not been before this' court in case of an unauthorized arrest, it has announced a principle which covers the point now under consideration. That principle is, that being-faultless is to be understood as meaning, not that the slayer did nothing to provoke the difficulty, but that “ the provocation must' not have been such as would in law be sufficient to justify the attack against which he was defending.himself when the homicide was committed. Anything short of such provocation as this would not pub the slayer in any degree in the wrong, if it became necessary to kill in his own defense.” Butler v. State, 92 Ga. 606; Boatwright v. State, 89 Ga. 140; Fussell v. State, 94 Ga. 78; Mixon v. State, 101 Ga. 575. Those were cases in which opprobrious words might have justified a blow. They did not justify a deadly assault. The assailant was not faultless, in that he provoked an attack. But he was faultless in that he did not provoke felony. The same principle applies here. The unlawful arrest justified a certain amount of resistance. But it did not justify shooting. Coleman had a right to defend himself against such wrongful counter-attack. Compare Creighton v. Commonwealth, 84 Ky. 103. It is also to be noted, oh this branch of the [601] case, that the deadly weapon was instantly fired, that there was no opportunity afforded Coleman to discontinue the arrest, to withdraw, or to decline combat. Under the evidence, if Coleman began by a felonious assault, he was guilty of murder. If he resisted an unjustifiable deadly attack, he was not guilty of any offense. There was no proof of any middle ground; nothing to show a killing in hot blood or passion, or because of a mere assault, and nothing in the record on which to base a charge of manslaughter.'
We recognize the dilemma which frequently confronts the trial judge in this class of cases. If he improperly omits to charge on the subject of manslaughter, a new trial must be granted. Conversely, if he improperly includes that charge, a new trial will be granted. But such is the law. Considering the gravity of the issue, the error is one which has been repeatedly held to entitle the defendant to another hearing.
Judgment reversed.
All the Justices concur.