Hemingway, J. Homi cide— Self-defense— "When not a justification. A peace officer may make an arrest without a warrant when a public offense is committed in his presence, or when he has reasonable grounds for believing that the person arrested has committed a felony. Mansf. Dig., sec. 2002. The appellant declared, when he made the arrest, that it was for an offense which it is not now claimed was committed in his presence; therefore, unless he had’ reasonable grounds to believe that it was a felony, he had no-authority to make the arrest without a warrant. In doing' so he invaded the right of liberty of deceased, than which none is dearer to a free man. The party arrested was justified in defending himself against the unlawful invasion in a. manner reasonable and necessary to regain his liberty. If, in making such defense, he used violence against the officer, it would be but the reasonable consequence of the officer’s misconduct, and he would not be justified in returning violence until he had released his unlawful arrest. So long as he maintained the improper restraint, he could not justify a homicide, though done in self-defense, for its necessity grew out of his wrongful act. Stoffer v. State, 15 Ohio St., 47; 1 Criminal Defenses, 220 and cases cited; Fitzpatrick v. State, 37 Ark., 238.
It is contended that if an officer makes an arrest, without warrant, for a misdemeanor not committed in his presence,. and the party arrested submits without demanding that a warrant be exhibited, he thereby waives any objection he might have taken to such an arrest, and cannot resist the officer or effect his escape. We do not rule on the proposition submitted. By the testimony of the appellant, the deceased submitted to arrest with a pistol drawn upon him and after the appellant had remarked, “that he supposed he would have to hit him over the head a few times, and then maybe he would go.” The deceased was not in an attitude to waive his right to liberty, and courts do not respect waivers obtained at the muzzle of a pistol. The court properly instructed the jury in the view of the evidence most favorable to appellant, and, there being no other error alleged, the judgment will be affirmed.