according to some testimony, "Gentlemen, don't let them take me." He was pulling Powell back to the fence. Powell said, “Jim, I have got to take him." A witness for the state testified that just as defendant called Jim to take the gun he said to Powell, "I ain't going to be arrested," and Powell replied, "Oh, yes; I reckon you are." Powell had his pistol in his hand; but, according to the evidence for the state, as soon as defendant put the gun into his brother's hand, he pulled a pistol from his pocket with his left hand and fired the first shot at Powell, the bullet grazing the top of his head; that Powell then fired the second shot, giving defendant a flesh wound in the arm; and that then the defendant changed his pistol to the other hand and fired two more shots, one of which went into Powell's head and killed him. For the defendant, the evidence was that the first shot was fired by Powell as soon as defendant released the gun into his brother's hand, and while defendant's hands were down by his side; and that defendant changed his pistol from his left to his right hand after being shot by Powell, who continued to point his pistol at defendant, holding it with both hands and trying to fire it again, but it would not revolve sufficiently. After the shooting the defendant returned to the well, where his wound was bandaged. He said, "He shot me first, or I would n't have shot him; he shot me all to pieces." Robinson was told to go away, and when the sheriff arrived a few minutes later, he was gone. The half hour of the sheriff was just out when he heard the firing, and came up. He finally arrested the defendant at a place in Tennessee, one hundred and sixty miles away. Defendant tried to break jail a few days before the trial. W. K. Moore, for the plaintiff in error. J. M. Terrell, attorney general, and A. W. Fite, solicitor general, for the defendant in error. 83 LUMPKIN, J. 1. Where it is the duty of a sheriff to arrest one charged with a felony we know of no law which authorizes this officer to "deputize" a private citizen either to make or assist in making the arrest, and thus constitute the person so "deputized" an officer. Under section 4722 of the code every officer charged with the execution of a penal warrant has the authority to summon to his assistance, either in writing or verbally, any citizen of the county. AM. ST. REP. VOL XLIV. —9 When citizens are thus summoned by the sheriff they are, while co-operating with him and acting under his orders, not themselves officers, nor are they mere private persons, but their true legal position is that of a posse comitatus. A posse may be summoned under the form of "deputizing" the person or persons composing it. The mode is immaterial, so that the object be to require or command assistance. 2. A member of a posse comitatus, summoned by the sheriff to aid in the execution of a warrant for felony in the sheriff's hands, is entitled to the same protection in the discharge of his duties as the sheriff himself; and to this end a person so summoned may do any act to promote or accomplish the arrest which he could lawfully do were he himself the sheriff, having personal custody of the warrant and bound to execute the same: See 13 Crim. Law Mag., sec. 30, p. 198. In order 84 to have the benefit of this protection it is not essential for a member of the sheriff's posse to be and remain in the actual physical presence of the sheriff. It is sufficient if the two are in the same neighborhood, actually endeavoring to make the arrest, and acting in concert with a view to effect this their common design. The evidence in the present case shows that the deceased, Powell, had been summoned by the sheriff to aid him in making the arrest of Robinson, under a warrant charging the latter with felony. It is quite likely that the sheriff supposed that by "deputizing" Powell, he had, in a sense, been made an officer for this purpose. If the sheriff really entertained this idea he was, as already stated, mistaken. Be this as it may, however, the sheriff was near the scene where it was expected the arrest would take place, and had given orders to Powell, obedience to which would tend to accomplish the arrest. Powell was obeying those orders, not literally, it is true, but certainly according to their general spirit, and the variance by Powell from the precise instructions given him by the sheriff was evidently necessitated by a change in the movements of the accused which had not been anticipated. Under these circumstances we hold that the conduct of Powell was substantially in obedience to the sheriff's orders, keeping in view the real object of their presence in the vicinity, which was undoubtedly the arrest of Robinson. It was seriously contended by counsel for the plaintiff in error that as the sheriff was not in sight when Powell laid his hand on Robinson to prevent his leaving the house of his brother, and as the warrant was not then in Powell's possession, the attempted arrest was thorized and illegal. The law applicable to this contention is thus aptly stated by Mr. Bishop in the first volume of his work on Criminal Procedure, section 186: "To justify the private person who thus assists the officer the latter 85 must be in some sense present commanding him. There is no precise distance which the two may be apart; but, where a sheriff is endeavoring to make an arrest, or preserve the peace, and he has called in others to help him, he is, though absent from the particular place occupied by them, to be deemed constructively present, within this rule, if his absence is in furtherance of the common design." The text of this distinguished author is admirably supported by the case of Coyles v. Hurtin, 10 Johns. 85, as will appear from the following extract from the opinion of Chief Justice Kent: "The sheriff is quodam modo, present by his authority, if he be actually engaged in efforts to arrest, dum fervet opus, and has commanded, and is continuing to command, and procure assistance. When he is calling upon the power of the county, or a requisite portion of it, to enable him to overcome resistance, it would be impossible that he should be actually present in every place where power might be wanting. The law is not so unreasonable as to require the officer to be an eye or ear witness of what passes, and to render all his authority null and void except when he is so present. He could not, upon that construction, use the power of the county with effect, and it would be attended with great inconvenience and danger to the administration of justice. The question in these cases does not turn upon the fact of distance, so long as the sheriff is within his county, and is bona fide and strictly engaged in the business of the arrest." In this connection see, also, Commonwealth v. Field, 13 Mass. 321, cited by Mr. Bishop. There is an obvious distinction between the officer's calling one to his assistance and merely attempting to delegate his authority and accomplish the arrest through the agency of third persons acting alone, as in the case of Rex v. Patience, 7 Car. & P. 775, where a constable, without attempting himself to execute a warrant in his hands, employed his two sons to make the arrest. In se Kirbie v. 86 State, 5 Tex. App. 60, it was held that persons called upon by an officer holding a warrant to assist in the arrest of a party charged with crime were protected, whether they had the warrant at the time of the attempted arrest or not. Under the facts as disclosed by the record now before us we think the sheriff was at least constructively present when Powell was attempting to arrest Robinson, although the officer was not in sight at that time. He was using Powell to accomplish the arrest, just as though he had reached out his own arm, supposing it was physically possible for him to do so, over the entire distance, and had taken hold of the person of Robinson himself. Powell was really a mere physical agency employed by the sheriff, by means of which the officer was enabled to extend his presence to the scene of action. It was undoubtedly the right of the sheriff to do this, he, of course, being responsible for the consequences of Powell's acts so long as the latter conformed literally or substantially to the sheriff's orders. A sheriff on foot might be unable to overtake a fleeing prisoner who could run faster than the officer; but if he shouted to a bystander to seize the fugitive, and this was done, it would be a seizure by the sheriff, and this, we think, would be undoubtedly true even though the fugitive ran out of the sheriff's sight before the bystander succeeded in overtaking and catching the escaping prisoner. The case before us is, in principle, within the class covered by this illustration. There is nothing in the case of Croom v. State, 85 Ga. 718, 21 Am. St. Rep. 179, contrary to what is here ruled. A warrant for the arrest of Croom was in the hands of the marshal of Ty Ty, who, without delivering it to Hamlin, a bailiff, showed it to him, and told him if he would arrest Croom, he (the marshal) would divide with Hamlin a reward of twentyfive dollars which the former had been offered 87 for making the arrest. Hamlin, without the warrant, and on his own account, went with a posse summoned by himself to the house of Croom's father, and was there killed by Croom. Under these circumstances Chief Justice Bleckley very properly said, on page 722: "The warrant not being in the hands of Hamlin, but in the possession of the marshal of Ty Ty, who was not present, was no authority to Hamlin to make an arrest." Hamlin was in no sense acting as one of a posse summoned by the marshal. Indeed, the latter had nothing whatever to do with the attempted arrest, either in its inauguration or in the method adopted for its execution. Croom's case, therefore, is similar to that of Rex v. Patience, 7 Car. & P. 775, and Hamlin did not bring himself within the rule as stated in Wharton on Homicide, section 242, "that the warrant must be executed by the party named in it, or by some one assisting such party, either actually or constructively," nor within the principle of Codd v. Cabe, 13 Cox C. C. 202. There is also a distinction between the authority of an officer to arrest without a warrant in cases of felony and of misdemeanor. Thus it has been said that "he may arrest any one of whom he has a reasonable suspicion that he has committed a felony, without waiting first to procure a warrant"; but without first procuring such warrant, "he may not arrest one who has committed . . . a misdemeanor out of his presence": See 13 Crim. Law Mag. 177, 178, and cases cited. On the same line is the case of Drennan v. People, 10 Mich. 169, in which it was held that a constable, having knowledge that a warrant had been issued for the arrest of a person charged with felony, could lawfully make the arrest without having the warrant in his possession. This case will also be referred to in connection with the question discussed in the next division of this opinion. We are fully convinced that the rule announced in 88 the second headnote is both sound in principle and well supported by authority. Ав а 3. It appears that when Powell grasped Robinson by his right arm the former said, "I am deputized to arrest you," to which Robinson replied, "Show your authority," and the answer which Powell made to this demand was, "It don't make any difference; I have got to take you." Under these circumstances we think it was the duty of Powell to have informed Robinson of the existence of the warrant in the sheriff's hands, and also that he (Powell) was attempting to make the arrest under authority of this warrant, or at least, that he had been commanded by the sheriff to do so. general rule a known officer in making an arrest is not bound to exhibit his authority. Certainly he is not absolutely required to do so before the accused person has submitted to the arrest, but after submission the officer ought to make known the substance of the warrant and for what cause and whence it issued. Where, however, one not a known officer is specially summoned to make an arrest he ought, unless prevented by the conduct of the accused from so doing, to show the warrant upon demand; or, if it is not in his possession, it is his duty to state the authority under |