1. At a former term of the court a jury had been impanneled to try the case, but before any evidence was submitted, it was discovered that one of the panel had been one of the grand jury that found the bill. All the other jurors had been discharged for the term. The solicitor general moved for and obtained an order to withdraw the case from the jury, aud to continue it. The defendant neither waived the objection to the juror nor objected to the order. He now pleads that action of the court in bar of any further trial. The juror who had been of the grand jury who returned the bill, was incompetent to try the defendant: Rafe vs. The State, 20 Georgia, 65; Cobb vs. The State, 45 Ibid., 11. It is not, in all cases, that the impanneling the jury prevents the state from exercising the rights it has before a full jury is made. Section 4681, Code, provides that “if the fact (the incompetency of the juror) is unknown to either party, or the counsel, at the time the juror is under investigation, and it is subsequently discovered, such objection may be made and the proof heard at any time before the prosecuting counsel submits to the jury any of his evidence in the case.” This means that if the juror is incompetent he may then be discharged. If he be discharged, there is not a full jury left, and why could not a nolle prosequi be then entered, or a continuance had, if there be ground for it? Here there was no other jurors from whom to complete the traverse jury. Besides, the defendant did not object to the continuance. Had he waived any objection to the juror, and the court then had withdrawn him, had withdrawn the case from the jury, a different question would have been presented. Under the principle contained in the Code, the court had the power to discharge an incompetent juror at the time it did this one, unless objection to him was waived; and the State was thereby remitted to all the rights it had up to and before the case was submitted to the jury, by impanneling the whole twelve.
2. It has been twice during the present term, besides this *409case, decided that to constitute the offense of an assault with intent to murder, it would be made to appear that the circumstances connected with the assault were such that had death ensued, the accused would have been guilty of murder: Meeks vs. The State; Smith vs. The State.
3. We do not propose to lay down any specific rule as to how far one person may go in defending another against the commission of a crime on him. By the common law, one who took life, even the life of an officer who Avas proceeding illegally against a third person, Avas not guilty of murder. Wharton, in his work on Criminal Law, 2 volume, section 1019, says, Avhere a known felony is attempted on the person, be it to rob or murder, the party assaulted may repel force by force, and even his servant attendant on him, or any other person present, may interfere for preventing mischief, and if death ensue, the party so interfering will be justified. He cites Commonwealth vs. Daley, 4 Pennsylvania Law Journal, 153; 1 East, P. C., 271; Wharton on Homicide, 213. See, also, Roscoe Criminal Evidence, 751, 754. The case of the Commonwealth vs. Riley, Thacher C. C., 471, was where, in an affray, A knocked doAvn B, and R, a bystander, believing the life of B to be in danger, gave B a knife to defend himself, and it was held that R was justified in giving B the knife. We would not lessen the protection the law furnishes officers in the discharge of their duty. But an officer is not one possessed of despotic power. He cannot be a tyrant, nor can he recklessly, in disregard of consequences, abuse his authority, and Avithout necessity put at imminent hazard the life of any person. We do not say that this officer so acted in this case. We do not pass upon the testimony. The error in the charge of the court on this point was, that it did not permit the jury to pass upon it. It Avas, in substance, that if the officer, im the execution of his authority was obstructed or interfered with,by the defendant, and in this interference the defendant did, make the assault with intent to kill, it Avould have been murder had the officer died, unless the jury believed that defendant had -some provocation other than was set up in this case.. *410This was equivalent to ruling out the testimony of defendant's witnesses, Knowles and McCook, and saying to the jury that it did not affect the case. That should have been left to the jury with the proper directions. They were to pass upon the credibility of the witnesses, and if they believed them, to determine how far the rushing in of an armed crowd, and a violent attack with a deadly weapon upon McCook, would affect the question of malice on the part of defendant. Malice is an ingredient in the offense charged, as well as in that of murder, and it is for the jury, and not for the court, to find whether it exists in either case. We do not say the jury should have found that such violent demonstrations had been made. The testimony was conflicting on that matter. It was for the jury to pass upon it, and it was error for the court to tell them, in substance, that nothing had been proven by the defendant that could be of any benefit to him. We .think that a new trial should be granted.
