#### STATE v. ROBINSON ROGERS, LEE ROGERS and WALDO McCRACKEN.

(Filed 27 May, 1914.)

1. Public Officers — Criminal Law — Arrest—Warrant—Offense Committed in Presence.

An officer may not make an arrest without a warrant except for offenses committed in his presence, and then he should make known to the offender that he is an officer authorized to make the arrest.

2. Public Officers — Criminal Law — Homicide—Arrest—Trials—Burden. of Proof — Instructions—Several Motives — Presumption of Innocence.

Where upon the trial for homicide the defense is interposed by the defendants that they killed the deceased in the perform- ■ *389anee of their duties as officers authorized to make an arrest in a manner justifiable, or that they had not shot the deceased, and were not responsible for his death, the question of guilt is for the jury to determine, under conflicting evidence, in accordance with how they should ascertain the facts to be, with the burden on the State of proving the defendants guilty beyond a reasonable doubt.

3. Judge’s Charge — Two Motives Inferable — Jury.

The defendants are not entitled to an instruction that where there are two or more motives for the crime committed the humanity of the law will ascribe it to that which is not criminal.

Appeal by defendants from Fergmon, J., at September Term, 1913, of Haywood.

Attorney-General Bickett and Assistant Attorney-General Calvert for the State.

Bryson & Black, J ohn M. Queen, and J ohn M. Stamey for defendants.

ClaRK, C. J.

Tbis is a conviction for manslaughter. The defendants were here on a former appeal, 162 N. C., 656. The defendant Rogers was the marshal of the town of Clyde and his codefendant had been deputized by him to assist in maintaining order at the time of the occurrence.

Exceptions 1, 3, and 5 present the question of the right of the defendants to arrest the deceased without a warrant for a pr*e-vious disturbance which had occurred downtown.

That an officer cannot arrest without a warrant for a breach of the peace previously committed is well settled. S. v. Campbell, 107 N. C., 948, where the Court said: “After the offense, the emergency requiring such prompt and summary action -having passed by, the justice of the peace or other proper officer should, upon proper affidavit, issue a State warrant for the offenders.” An arrest without warrant should be attempted only when the offense is committed in the officer’s presence. Sossamon v. Cruse, 133 N. C., 470; S. v. McAfee, 107 N. C., 812; S. v. Hunter, 106 N. C., 796; S. v. Freeman, 89 N. C., 469.

Exception 2 is that the court charged that if the deceased was drunk at the time of the arrest the officer might have arrested him if he had made himself known as such. But the right to *390make an arrest without warrant imposes upon the officer the duty to make himself known as such at the time; and if he fails to do so, the arrest is illegal, and may be lawfully resisted, unless the person arrested knows that he is an officer. S. v. Rollins, 113 N. C., 722. In the present case the defendant was making an arrest in the night-time with a deadly weapon, without a warrant, and, according to testimony of the State’s witnesses, when no offense was being committed at the time. S. v. Medlin, 60 N. C., 489.

Exception 4 was abandoned in this Court. Exception 6 is to the refusal of request to charge that “where an act may be reasonably attributed to two or more motives, one criminal and the other 'not, the. humanity of the law will ascribe it to that which is not criminal.” This was said in S. v. Hawkins, 155 N. C., 466, which was a prosecution for entering a certain house at night with the intent to commit larceny, and the intent was the gravamen of the charge, in which case this Court' sustained the conviction. The remark in S. v. Hawkins, supra, is quoted from S. v. Massey, 86 N. C., 660, and is there taken from the dissenting opinion in S. v. Neely, 74 N. C., 425; but it does not bear the meaning which the defendants seem to attribute to it, that when upon the evidence, if the jury believe it one way they should find the defendant not guilty, and if the contrary belief prevails the jury would find the defendant guilty, they must find, according to the humanity of the law, that he is not guilty.

What was really meant is thus stated by Rwffin, J., immediately after quoting from S. v. Neely (86 N. C., at p. 661): “Every man is presumed to be innocent until the contrary is proven, and it is a well established rule in criminal cases that if there is any reasonable hypothesis upon which the circipnstances are consistent with the innocence of the party accused, the court should instruct the jury to acquit, for the reason that the proof fails to sustain the charge. The guilt of a person is not to be inferred because the facts are consistent with his guilt, but they must be inconsistent with his innocence.” This is simply the statement of the unquestioned law that a man must be acquitted unless he is found guilty beyond a reasonable doubt, or to the satisfaction of the jury.. It is not intended to control the find*391ing of tbe jury as to tbe facts by bolding that when tbe evidence for tbe defendant and tbe evidence for tbe State conflict tbey must take tbe evidence tbat is most charitable to tbe accused. What tbe circumstances are is for tbe jury to determine.'

What was said in S. v. Massey and S. v. Hawkins, supra, has no application in tbe present instance, where tbe contentions of tbe defendants are tbat neither of them fired tbe fatal shot, and tbat if either of them did so tbey bad a right to do-so, as tbe deceased was resisting an arrest and tbat tbey bad a right to arrest him without a warrant, because be was drunk at tbe time. Under tbe charge, in connection with tbe evidence, tbe jury found them guilty, because tbe defendants were attempting to arrest tbe deceased without warrant for a matter which bad occurred previously and at another place, and killed him for resisting. It was a question of fact as to tbe circumstances, and not one of intent.

Exceptions 7, 8, 9, and 10 are for refusals to charge as requested and as to tbe proof necessary to convict, and an examination will show tbat so far as these prayers were correct tbey were substantially and correctly given in tbe charge.

Tbe deceased came to bis death from gunshot wounds at a schoolhouse where an entertainment was being held. By tbe evidence for tbe State tbe deceased came there from tbe direction of tbe town of Clyde, about 10 p. m., riding at a moderate gait and peaceably. The defendants came out of tbe schoolhouse with pistols in their bands, and some one said: “There be is; catch him.” Tbe defendant McCracken went up to him with pistol in bis band and caught bis horse by. the bridle with bis left band and presented bis pistol, saying, “I have got you.” -The firing then began. Tbe deceased rode off about 50 yards and fell off bis horse. There was much evidence to this effect, and there was evidence for tbe defendants. Tbe jury evidently found, under tbe charge, tbat tbe above was tbe state of facts and tbat tbe defendants attempted to arrest deceased for some disturbance of tbe peace tbat be bad previously made tbat day in tbe town of Clyde, without having a warrant and without telling him tbat tbey were officers. We do not find any error.

There were no exceptions to tbe evidence or otherwise, except to tbe charge and to tbe refusal to charge, as above stated.

*392The evidence was thoroughly argued to the jury, who found the defendants guilty under a careful and correct charge of the court in which we find

No error.