Thе defendant contends, here as he did in the Circuit Court, that the deceased had no authority to arrest the defendant. It will be remembered that the deceased was sheriff of Harney County; that he arrested the defendant in Malheur County. The defendant contends that the crime for which he *516 was arrested was a misdemeanor and the deceased not having in his possession the warrant was not authorized to arrest the defendant. It is conceded that the warrant was not indorsed by any Justice of the Peace in Malheur County. The state contends that the crime charged against the defendant was a felony; that the dеceased was informed of the crime and had reasonable grounds for believing the defendant had committed the crime and was therefore authorized to arrest defendant, notwithstanding he did not have the warrant- in his immediate possession. The crime for which the defendant was arrested was committed in Harney County.
The information against the defendant charged him with obtaining goods by false pretenses: Section 1964, Or. L. The false pretense, as alleged in the information, was accompanied by a check drawn on a bank in which the defendant had no funds. The goods obtained by the use of the check were two horses. The defendant contends that the information charged only the crime of giving checks without funds for payment: Section 1964—1, Or. L. The state offered for the purpose of establishing its contention the testimony of Cawlfield, prosecuting witness, the testimony of Ed Goodman, son of the deceased and deputy sheriff, and Mr. Sizemore, who was at that time prosecuting attorney of Harney County. Some of the conversation testified to was over the phone. The state did not attempt to prove the conversation other than to show that the prosecuting witness communicated with the prosecuting attorney thаt the crime had been committed whereupon the prosecuting attorney filed the information upon which the warrant for the arrest of the defendant was issued. The in *517 formation itself was introduced as Plaintiff’s Exhibit 2 over the objection of the defendant.
The objection of the defendant to the admission of thе testimony as to the conversations between Cawlfield, Ed Goodman, Sizemore and Austin Goodman, is “most of which are founded on hearsay, were held over the telephone and which were had in the absence of the defendant; that the information sworn to by Sizemore and forming the basis for the issuance оf a warrant for the arrest of defendant in connection with the giving of a check to Cawlfield is incompetent, irrelevant and immaterial as to any issue involved in this action, as the only crime charged by such information, if in fact it charges any crime at all, is the crime of giving a check on a bank where the maker had no funds or credit which at most would amount to the charge of the commission of a misdemeanor and would not authorize the arrest of the defendant, except by a proper officer and he would by necessity have to be in possession of a proper warrant authorizing him to make such an arrest. An attempt to make an arrest without being armed by such proper warrant would be unlawful.” Inasmuch as the defendant admits that he submitted to an arrest when informed that there was a warrant for him, it is difficult to understand how this evidence could have prejudiced the defendant’s case. If the defendant had committed the crime of which he was convicted by resisting arrest, the objections of the defendant would be relevant.
The information, by virtue of which the warrant "for the arrest of the defendant was issued, charges a felony. The contention of the defendant that because the token used by the defendant to obtain the two horses was a check on the bank and therefore
*518
constituted only a misdemeanor under Section 1964— 1, Or. L., cannot be sustained. A check is one of the most common used tokens in the commission of a crime for obtaining goods under false pretenses:
State
v.
Miller,
The difference between the two crimes may be illustrated thus:
The defendant obtained the two horses by representing to Cawlfield that he had money in the bank at Elko, Nevada. The false token used by him to obtain those horses was the check which was in writing and drawn on that bank. He thus obtained the horses by fаlse pretense as defined in Section 1964, Or. L. If instead of procuring the horses by using the check he had bought the horses promising to pay for them thereafter, and at a later date had given the check as a payment of the indebtedness he would have been guilty of uttering a check on a bank in which he hаd no funds as defined in Section 1964—1, Or. L. He would not have been guilty of violating said Section 1964 because he would not have obtained *519 the horses by the use of a false token. Section 1541, Or. L., provides:
“ * * No evidence can be admitted of a false pretense expressed orally and unaccompaniеd by a false token or writing; but such pretense, or some note or memorandum thereof, must be in writing, and either subscribed by or in the handwriting of the defendant.”
This provision does not apply to the crime denounced in said Section 1964—1.
Cawlfield was permitted to testify over the objections of the defendant that the defеndant represented at the time he gave the check to Cawlfield and obtained the horses that the defendant had money in the bank against which the check was drawn. We cannot see how this evidence could have prejudiced the defendant. The defendant admits having given the check for the twо horses, testified that he had no funds in the bank, and his attorney in his exhaustive brief in this court attributes to the defendant the intention to go with the sheriff and plead guilty to the charge. The defendant himself also testified to that effect. We do not think it was error for the court to have permitted the witness Cawlfield to testify as to thе representations made by the defendant when he obtained the horses for the check. The crime of which the defendant has been convicted had its origin in the circumstances testified to by the witness Cawlfield. It was the transaction which led up to taking the life of the deceased. It was therefore germane to the issues in this case.
The position taken by the defendant in regard to the authority of the deceased to arrest the defendant is not well taken. The defendant was charged with a felony at the time he was arrested.
*520 “A peace officer may, without a warrant, arrest a person,—
“1. For a crime committed or attempted in his presence;
“2. When the person arrested has committed a felony although not in his presеnce;
“3. When a felony has in fact been committed and he has reasonable cause for believing the person arrested to have committed it.” Section 1763, Or. L.; State v. Laundy,103 Or. 443 , 495 (204 Pac. 958 ,206 Pac. 290 ).
“A private person may arrest another for the causes specified in section 1763 in like manner and with like effect as a peaсe officer without a warrant.” Section 1768, Or. L.
It clearly appears that under the statute since the defendant was charged with having committed a felony, the deceased was informed to that effect and had reason to believe the defendant had committed the crime. He was authorized to аrrest the defendant though he had no warrant and was not in the county of which he was sheriff at that time. This conclusion disposes of the alleged errors based upon the degree of the crime for which defendant was arrested by the deceased, not only as to admission of testimony, but also as to certаin instructions* given, and others requested by the defendant and not given.
The defendant having submitted to the arrest cannot be heard to complain because the deceased had no warrant: Section 1757, Or. L.
We deem it unnecessary to treat separately all the assigned errors. The court is not required to give requested instructions in the language asked, although the law is correctly stated therein. The judge should instruct the jury fairly and impartially regarding the theory of both parties when there is
*521
any evidence justifying him so to do. He may do this in his own language and order:
State
v.
Savage,
The instruction upon the statutory presumption of intent to murder frоm the deliberate use of a deadly weapon as given by the court is complete and correct: Section 793, subd. 1, Or. L.
State
v. Bart
mess,
The defendant alleges error because' the court refused to strike out the answer of the witness, Grace D. Pollock, to the following question propounded by his attorney on cross-examination:
“Q. There had been nothing in the attitude of Archie Cody during the time that he was there and prior to your coming out of the cellar that would indicate any malice or any disposition on his part to injure you, had there?
“Mr. Lytle: We object, if the Court please, as calling for conclusion of the witness.
“Mr. Newman: This is cross-examination, and the witness has testified that she was afraid of Archie Cody.
“The Court: You may answer the question.
“(Question read.)
“Q. The question is, to injure you, Mrs. Pollock.
“A. His attitude in going to the horse immediately was an attitude of injury to someone, in my mind.
“Mr. Newman: We move, your Honor, that that answer be stricken out as not responsive.
“Mr. Lytle: Counsel just inquired as to what was in the witness’ mind.
“The Court: I won’t strike it out.
“Exception allowed.”
It was not error for the court to deny the motion. Counsel for defendant invited the answer. The con *522 duct of the witness, Mrs. Pollock, her two sons and George Prince, in seeking refuge in the root cellar already testified to as having occurred before the deceased had secured his gun was before the jury. This witness was under cross-exаmination regarding that and other matters to which she had testified. The defense having brought out this testimony was not entitled to have it stricken out. It was admitted over the objection of the state.
Defendant also complains of the court’s instructions on self-defense. The instructions were complete, fair and warranted by the testimony. It was the theory of the state that the defendant formed his intention of escaping after submitting to arrest, and when he discovered the sheriff was not following him closely resolved to kill the deceased in order to make good his escape. The testimony of the witnesses, Mrs. Pollock, her twо sons and Prince and their conduct in seeking a place of safety after hearing the sheriff command the defendant to “put that gun down” tends to support the theory of the state. The court instructed the jury also on the theory of the defendant. A part of his instruction in that behalf is as follows:
“If you find, however, that thе defendant while in the lawful custody of the deceased asked permission to take care of his horse and went to the place where his horse was tied and thereafter the deceased, without warning or without a warning that was heard by the defendant, fired a shot at him, and that the defendant had not armed himself for the purpose of escape and was doing no other overt act in attempting to escape or to injure the life of the deceased, and from all of the circumstances appearing to him at that time it was necessary, and defendant also had reasonable cause to believe it was necessary to take *523 the life of the deceased, this would constitute self-defense.”
The defendant also assigns error because the court instructed the jury on the defense of insanity. Defendant does not complain that the instruction as given was contrary to law, but contends thаt it was not applicable to the case. Defendant contends that the defense of insanity was not made or intended to be made. But the defendant did introduce considerable testimony regarding the mental capacity of the defendant. In offering the evidence he stated that such was his purpоse. It was proper therefore for the court to give the instruction.
The errors assigned because of the definitions of “premeditation,” “purposely” and “malice” are without merit. In this connection the court gave instructions, heretofore approved by this court, and as defined by standard authоrities. We deem it unnecessary to go into detail because taking the instructions as a whole in defining the several degrees of homicide they are explicit, fair and sound.
The defendant also alleges error because of a remark of the court to the attorney for the defendant during the cоurse of the trial. The record does not disclose that any objection was made to the court’s remark at the time. While the colloquy between the court and the attorney is followed by the expression “Exception allowed,” we believe that referred to the court’s ruling upon an objectiоn made by the attorney to a question propounded to the witness. But waiving that, it was not error nor could it have influenced the jury in its deliberation. In our opinion the remark of the attorney, as well as the remark of the court assigned as error, appears to have been the result of a misunderstanding. The entire record dis *524 closes that the court was not only fair but even indulgent to the defendant. His rights were protected and he was given every opportunity to adduce evidence to support his plea of self-defense.
A great deal of stress is placed upon some circumstances ocсurring at the time the defendant was arrested by a posse formed after the killing of the deceased. It appears that one member of the posse was unduly rough with the defendant, but it also appears that this conduct was confined to only one member and it could in no way contribute to the evidenсe of the guilt or innocence of the defendant. The evidence clearly shows that the defendant was treated humanely in all respects after he had been captured and his weapons taken from him. The statements made by the defendant to members of the posse were admissible as evidеnce against his interest. There was no attempt to prove a confession.
Most of the questions discussed by the defendant on this appeal relate to the weight of the testimony. The defendant moved to charge the jury that there was not evidence sufficient to constitute either the crime of murdеr in the first degree or murder in the second degree. ..Both motions were properly denied. The evidence was sufficient to warrant the jury to return the verdict of murder in the first degree, if it believed the testimony of the witnesses for the state. The weight of the testimony was a question of fact to be determined by the jury.
This court is forbidden by the fundamental law from interfering with the verdict where there is any material evidence to support it. For these reasons the judgment is affirmed. Affirmed.