Campbell, J.,
delivered the opinion of the court.
It is inconceivable that the crime of murder is predicable of the facts disclosed by the evidence in this case. The time, and place *608and tbe circumstances of the killing forbid any such conclusion as a verdict of guilty of murder. If the killing by the accused was not justifiable, as being in self-defense, it was no more than manslaughter, unless it could be believed that it (the killing) was referable not to resistance of the illegal arrest, but to malice, and there seems to be little ground for that. It is not claimed that the accused had committed a felony. There was no affidavit or indictment or warrant against him, even for a misdemeanor; and when, on that Sunday, he learned, as he must have done from its publicity, that the friends of the man with whom he had a fight the Thursday night preceding, were being collected for a nocturnal visit to his home, it was quite natural for him, and was his right, to collect his friends, and prepare to defend his home and person according to the exigency; and when twelve men, including his adversary in the fight of Thursday, armed with guns and pistols, at or after the hour of 10 o’clock at night, hurriedly advanced into his yard, calling for him, but without any authority to arrest him, and not professing to have, making no announcement of what they wanted him for, and he or his friends fired into the assailing party, and killed some of them, it was not murder. Wharton on Homicide, § 227. The wonder is that the jury so found, and in view of the instructions for the defendant, it is difficult to account for the verdict except upon the assumption of misunderstanding by the jury of the law of the case, or want of sufficient time for deliberation. The fifth instruction for the state had no application to the caseras made by evidence, and was probably asked and given inadvertently, for there was no hint of any felony having been committed; and it is probable that harm was done by this instruction. It is also probable that the tenth instruction for the state misled. In view of this, and the facts attending the homicide, and the short time allowed the jury for deliberation, we are constrained to reverse the judgment, and grant a new trial.
Reversed and remanded.