delivered the opinion of the court.

There is no suggestion in the evidence that Robinson was killed by Ephraim Cryer. Indeed, it is shown by all the testimony that he was not. So much of the first instruction for the state as relates to the responsibility of appellant for the act of Ephraim could only confuse the jury, and should not have been given. It had no relevancy to the issue.

The second instruction for the state is fatally erroneous. By law “ an officer or private person may arrest any person, without warrant, for an indictable offense committed, or a breach of the peace threatened or attempted in his presence, or when a person has committed a felony, though not in his presence; or when a felony has been committed, and he has reasonable ground to suspect and believe the person proposed to be arrested to have committed it; or on a charge made upon reasonable cause of the commission of a felony by the party proposed to be arrested. And, in all cases of arrests without warrant, the person making such arrest must inform the accused of the object and cause of the arrest, except when he is in the actual commission of the offense or is arrested on pursuit.” Code 1892, § 1375.

The officer making the arrest on the occasion of the homicide confessedly had no warrant; the evidence leaves it more than doubtful that any felony had been committed by any one, or that appellant “ et al.” had been charged, upon reasonable cause, with the commission of a felony; and, confessedly, the offense for which the arrest was sought to be made was not committed in the presence of the officer.

The second instruction for the state informed the jury “that, if you believe from the evidence in this case, that the defendant shot and killed deceased at a time when deceased and others were trying to arrest defendant et al., and that he, •defendant, shot and killed him in order to prevent said arrest, the defendant is guilty as charged, and the jury should so find.”

This instruction either tells the jury that the arrest sought *471to be made was a lawful arrest, and was therefore erroneous because upon the weight of evidence (Code, § 732) or instructed the jury that, if one unlawfully sought to be arrested resists, and kills the party seeking to arrest him, to prevent such arrest, and not in malice, he is guilty of murder. This is not the law, for the killing under such circumstances would be manslaughter, and not murder. "Wharton on Homicide, §§ 225-271.

Judgment reversed, and a new trial awarded.