This is an indictment for the murder of Charles M. Packard, a constable of Stoughton, at Stoughton in the county of Norfolk, on the 15th of September 1870, while attempting to arrest the defendant upon a warrant issued on the 9th of August 1870, by a trial justice for the county of Norfolk, addressed to the sheriff of the county, or his deputy, or any constable or police officer of any town in that county, and directing them respectively to take the defendant and bring him before said trial justice to answer to a complaint for an assault.

This warrant was upon its face sufficient authority to Packard to arrest the defendant, unless the memorandum indorsed thereon, signed by a deputy of the sheriff of the county, dated September 12, 1870, and stating that by virtue thereof he had arrested the defendant and had him before said trial justice for examination, must be treated as conclusive evidence that no further service of the warrant could lawfully be made.

Assuming that the rule, that an officer’s return upon a warrant cannot be contradicted by paroi evidence, is applicable to such a return, when the warrant is produced in evidence upon the trial of an indictment for the homicide of an officer while attempting to make a subsequent arrest upon the warrant — we are all of opinion that the indorsement in question is not such a return.

*242It was not shown by any record of the magistrate, nor by any minute made by him, upon the warrant or otherwise, that the warrant had been returned to him. It was not produced by him nor from his files. But it was at the time of the homicide in the hands of the officer with the murder of whom the defendant is charged.

Until the warrant had been returned to the magistrate, any memorandum made thereon by an officer had not the character of a record, but might be amended or erased by the officer who made it, at his pleasure, and would not preclude him from making a further service and-return of the warrant; and any other officer to whom the warrant was directed and committed had equal authority to serve and return it, and was no more concluded than the first officer by a memorandum which had never acquired the effect of a return.

Parol evidence being required to give the indorsement the character of a return, it was competent for the Commonwealth to prove by like evidence the proceedings before the magistrate relating to the making of the memorandum on the back of the warrant, as explaining the circumstances under which that memerandum was made; and also the fact that the defendant was never brought before the magistrate upon the warrant.

The evidence offered by the Commonwealth was therefore rightly admitted; and it was rightly ruled that, if it appeared that the warrant had never been served, and the magistrate had never had the defendant before him judicially, and the warrant had been given back by the magistrate to the officer for service, it was so far valid in the hands of Packard as to authorize him to arrest the defendant upon it and take him before the magistrate.

The defendant has therefore no just ground of exception to the rulings at the trial, and must be

Sentenced, accor ding to the verdict.