MerrijioN, C. J.
after stating the facts: The deceased was not charged, nor chargeable, so far as appears, with any felony. His participation in the affray a few hours before he was slain would render him chargeable with simply a misdemeanor. And so, also, if he and his associate disturbed the peace and quiet of the neighborhood simply by their loud and boisterous threats, cursing and disorderly
conduct, and if he had about his person a concealed weapon at the time the prisoner undertook to arrest him, he would only be chargeable with a misdemeanor.
The prisoner, a private person, had no authority to arrest the deceased for a riot, rout, affray, or other breach of the peace, without a proper warrant authorizing such arrest, directed to him as allowed by the statute
(The Code,
§ 1219), unless he was present at the time of the perpetration of such offence, nor could a Justice of the Peace, by his merely verbal order or command, confer upon him such authority; nor could he have authority to arrest him for a mere misdemeanor, other than such as those just mentioned, without such warrant. The statute
(The Code,
§ 1124) prescribes that “ every person present at any riot, rout, affray, or other breach of the peace, shall endeavor to suppress and prevent the same, and, if necessary for that purpose, shall arrest the offenders.” That is, if need be, in such case, the private person shall arrest the offenders and take them before a proper officer, to the end he may issue a proper warrant for and deal with them according to law in such cases. The purpose is to make it the positive duty of every person present at any such breaking of the peace to interpose and endeavor to suppress and prevent the same. Hence, if one make an arrest in such case in good faith, he will not be a trespasser. On the contrary, he will be encouraged and protected in the use of all proper means to suppress such breaches of the peace and in bringing the offenders before proper officers to be dealt with as the law directs.
In case of felonies, however, a private person may arrest the felon without a warrant, and it is his duty to do so if he is present at the time it is committed. In such case, he may and ought to arrest and, as soon as practicable, take him before a proper officer, to the end he may be duly held to answer for the offence. In such case, the private person would not be justified unless a felony had actually been
committed. It is better and safer to obtain a warrant when, this may be promptly done.
State
v.
Roane,
2 Dev., 58;
Brockway
v.
Crawford,
3 Jones, 433;
State
v.
Bryant,
65 N. C., 327;
State
v.
Shelton,
79 N. C., 605;
Neal
v.
Joyner,
89 N. C., 287; 1 Hale P. C., 587, 588; 1 Chit. Cr. Law, 17
et seq.;
4 Bl. Com., 293.
It is, however, insisted, with great earnestness, that the statute
(The Code,
§ 1125) conferred upon the Justice of the Peace power to summon the prisoner to arrest the deceased, as he undertook to do. We think this contention is unfounded; that it is not warranted by a just interpretation of the statute or by the facts of the case. The section of the statute cited provides: “Every person summoned by a Judge, Justice, Mayor, Intendant, chief officer of any incorporated town, Sheriff, Coroner or Constable, to aid in suppressing any riot, rout, unlawful assembly, affray, or other breach of the peace, or to arrest the persons engaged in the commission of such offences, or to prevent the commission of any felony or larceny which may be threatened or begun, shall do so.” This provision has reference to cases where the offences mentioned — not every misdemeanor — are actual!}'' being perpetrated — going on to completion — or where they are imminent — about to be perpetrated. In such emergency, it is the duty of the officers specified to suppress and prevent the offences and arrest the offenders. In so discharging such duties, they are not necessarily left alone; they may, and ought, when need be, to summon any person, whether then present or not, to aid them. This statute makes it imperative on the person so summoned to aid, whether he be present at the perpetration of the offence when summoned, or not. It is the duty of every person, when summoned, to aid in the restoration and preservation of the public peace, and to prevent a breach of it. As to those persons present when such offences are being perpetrated, it is their duty to interfere, and, if need be, without warrant, arrest the offending parties.
The Code,
§ 1124.
But it is not part of the purpose of the section of the statute above recited to confer upon the officers therein specified authority to summon and empower private persons, after the offences mentioned have been committed and the offenders have dispersed and gone away, to go after and arrest them without warrant. The statute does not so provide in terms, nor is there anything in it that can bear such interpretation. Such exercise of power does not at all come within its purpose, nor is there any reason why it should.
After the offence, the emergency requiring such prompt and summary action, had passed by, the Justice of the Peace or other proper officer should, upon appropriate affidavit, issue a State warrant for the offenders, directed to the Sheriff or other appropriate officer, or, if none can be convenient^ found, then to
a private person,
who would, in that case, thus be fully empowered to make the arrest, giving notice of the warrant and his authority. The private person would thus have like authority with the Sheriff for the specified purpose, and he might, in case of resistance by the person to be arrested, use such force as would be necessary to make the arrest, but in case the latter should flee, the offence being a misdemeanor, he would not be justified in killing him. But after the offences — misdemeanors—mentioned above have been committed, and the offenders have dispersed, a private person has no authority of himself to arrest the offenders without warrant as just indicated, nor can he go out to make such arrest by the mere order of a Justice of the Peace or any other officer. .It is otherwise as to felonies actually committed.
If a private person, of his own purpose, without warrant, undertakes to make an arrest of a party guilty of only a misdemeanor otherwise than in the cases and in the way above pointed out, he at once becomes a trespasser, and the party whom he so undertakes to deprive of his liberty may resist him by such force as may be necessary to defend him
self successfully. Except in the cases of emergency pointed out private persons should bring such offenders to justice through the proper officers of the law. The law so intends and requires.
In the present case, as we have seen, the deceased had participated in an affray several hours before he was killed, in which he was wounded. That affray was ended, and the deceased had fled at first to the woods. Afterwards, he went to a house, and the inmates dressed his wounds, and he had started on his way home.
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MerrijioN, C. J.
after stating the facts: The deceased was not charged, nor chargeable, so far as appears, with any felony. His participation in the affray a few hours before he was slain would render him chargeable with simply a misdemeanor. And so, also, if he and his associate disturbed the peace and quiet of the neighborhood simply by their loud and boisterous threats, cursing and disorderly
conduct, and if he had about his person a concealed weapon at the time the prisoner undertook to arrest him, he would only be chargeable with a misdemeanor.
The prisoner, a private person, had no authority to arrest the deceased for a riot, rout, affray, or other breach of the peace, without a proper warrant authorizing such arrest, directed to him as allowed by the statute
(The Code,
§ 1219), unless he was present at the time of the perpetration of such offence, nor could a Justice of the Peace, by his merely verbal order or command, confer upon him such authority; nor could he have authority to arrest him for a mere misdemeanor, other than such as those just mentioned, without such warrant. The statute
(The Code,
§ 1124) prescribes that “ every person present at any riot, rout, affray, or other breach of the peace, shall endeavor to suppress and prevent the same, and, if necessary for that purpose, shall arrest the offenders.” That is, if need be, in such case, the private person shall arrest the offenders and take them before a proper officer, to the end he may issue a proper warrant for and deal with them according to law in such cases. The purpose is to make it the positive duty of every person present at any such breaking of the peace to interpose and endeavor to suppress and prevent the same. Hence, if one make an arrest in such case in good faith, he will not be a trespasser. On the contrary, he will be encouraged and protected in the use of all proper means to suppress such breaches of the peace and in bringing the offenders before proper officers to be dealt with as the law directs.
In case of felonies, however, a private person may arrest the felon without a warrant, and it is his duty to do so if he is present at the time it is committed. In such case, he may and ought to arrest and, as soon as practicable, take him before a proper officer, to the end he may be duly held to answer for the offence. In such case, the private person would not be justified unless a felony had actually been
committed. It is better and safer to obtain a warrant when, this may be promptly done.
State
v.
Roane,
2 Dev., 58;
Brockway
v.
Crawford,
3 Jones, 433;
State
v.
Bryant,
65 N. C., 327;
State
v.
Shelton,
79 N. C., 605;
Neal
v.
Joyner,
89 N. C., 287; 1 Hale P. C., 587, 588; 1 Chit. Cr. Law, 17
et seq.;
4 Bl. Com., 293.
It is, however, insisted, with great earnestness, that the statute
(The Code,
§ 1125) conferred upon the Justice of the Peace power to summon the prisoner to arrest the deceased, as he undertook to do. We think this contention is unfounded; that it is not warranted by a just interpretation of the statute or by the facts of the case. The section of the statute cited provides: “Every person summoned by a Judge, Justice, Mayor, Intendant, chief officer of any incorporated town, Sheriff, Coroner or Constable, to aid in suppressing any riot, rout, unlawful assembly, affray, or other breach of the peace, or to arrest the persons engaged in the commission of such offences, or to prevent the commission of any felony or larceny which may be threatened or begun, shall do so.” This provision has reference to cases where the offences mentioned — not every misdemeanor — are actual!}'' being perpetrated — going on to completion — or where they are imminent — about to be perpetrated. In such emergency, it is the duty of the officers specified to suppress and prevent the offences and arrest the offenders. In so discharging such duties, they are not necessarily left alone; they may, and ought, when need be, to summon any person, whether then present or not, to aid them. This statute makes it imperative on the person so summoned to aid, whether he be present at the perpetration of the offence when summoned, or not. It is the duty of every person, when summoned, to aid in the restoration and preservation of the public peace, and to prevent a breach of it. As to those persons present when such offences are being perpetrated, it is their duty to interfere, and, if need be, without warrant, arrest the offending parties.
The Code,
§ 1124.
But it is not part of the purpose of the section of the statute above recited to confer upon the officers therein specified authority to summon and empower private persons, after the offences mentioned have been committed and the offenders have dispersed and gone away, to go after and arrest them without warrant. The statute does not so provide in terms, nor is there anything in it that can bear such interpretation. Such exercise of power does not at all come within its purpose, nor is there any reason why it should.
After the offence, the emergency requiring such prompt and summary action, had passed by, the Justice of the Peace or other proper officer should, upon appropriate affidavit, issue a State warrant for the offenders, directed to the Sheriff or other appropriate officer, or, if none can be convenient^ found, then to
a private person,
who would, in that case, thus be fully empowered to make the arrest, giving notice of the warrant and his authority. The private person would thus have like authority with the Sheriff for the specified purpose, and he might, in case of resistance by the person to be arrested, use such force as would be necessary to make the arrest, but in case the latter should flee, the offence being a misdemeanor, he would not be justified in killing him. But after the offences — misdemeanors—mentioned above have been committed, and the offenders have dispersed, a private person has no authority of himself to arrest the offenders without warrant as just indicated, nor can he go out to make such arrest by the mere order of a Justice of the Peace or any other officer. .It is otherwise as to felonies actually committed.
If a private person, of his own purpose, without warrant, undertakes to make an arrest of a party guilty of only a misdemeanor otherwise than in the cases and in the way above pointed out, he at once becomes a trespasser, and the party whom he so undertakes to deprive of his liberty may resist him by such force as may be necessary to defend him
self successfully. Except in the cases of emergency pointed out private persons should bring such offenders to justice through the proper officers of the law. The law so intends and requires.
In the present case, as we have seen, the deceased had participated in an affray several hours before he was killed, in which he was wounded. That affray was ended, and the deceased had fled at first to the woods. Afterwards, he went to a house, and the inmates dressed his wounds, and he had started on his way home. He was not then committing any breach of the peace, as contemplated-by the statutory provisions above recited. The prisoner pursued him; he resisted (as he might do in his defence) unsuccessfully, turned to fly, and the prisoner at once slew him by a pistol shot. The prisoner had no authority to arrest him, and none whatever to take his life. The excuse offered is that a Justice of the Peace summoned and ordered the prisoner to pursue and arrest him. But the Justice of the Peace, for the reason stated above, had no authority to confer upon the prisoner such power to arrest him; he could do so only by duly issuing a State warrant for him, directed to the prisoner as a private person, in the absence of a proper officer. After the affray was ended, the Justice of the Peace had ample time and opportunity to issue a State warrant for the apprehension of the deceased before he was slain, and for the other offenders. There was no necessity for the unlawful verbal order he gave the prisoner. There was not then any offence in course of perpetration or imminent, as contemplated by the statute. The necessity for the arrest was not then emergent. The mere fact that the deceased was a violent man and had a pistol on his person was no reason for sending the prisoner without a warrant to arrest him; indeed, such fact afforded stronger reason why the law should be observed. As it was not such reason, although the prisoner’s intentions may have been sincere, he must suffer for his grave
offence, committed through misapprehension of his authority and duty. The life of a violent man shall not be taken carelessly and recklessly, or otherwise than for crime and in the way provided by law. The law, in its humanity, does not allow human life to be taken except for the gravest crimes and upon the most thorough and solemn scrutiny as to the guilt of the offender. In a matter so momentous all the essential forms of the law should be observed.
Affirmed.