Kilvington

There is no conflict in the evidence as to the circumstances under which the defendant killed the deceased, and, in order to determine whether his act was excusable or not, it was necessary for the jury to consider, first, whether the defendant was justified in attempting to arrest the deceased at all; and, if so, whether the act of shooting merely for the purpose of intimidating, and thus causing the deceased to stop, and without any intention of killing or wounding him, was or was not criminal negligence. It was important to the defendant to have these questions, and the law in relation to each, clearly and separately stated to the jury. The court correctly instructed the jury that a peace officer has the right without a warrant to arrest any person in the night, when the officer has reasonable ground to believe that such person has committed a felony. (Pen. Code, sec. 836; Burns v. Erben, 40 N. Y. 463 .) But the court erred in the manner in which it submitted the question of probable cause to the jury. Upon this point the court gave the following instruction: “ It is for the *90 jury to determine from all the facts and circumstances of the case whether the defendant had…