Campbell, C. J.,
delivered the opinion of the court.
There were some immaterial errors committed by the-court in its rulings on the admission of testimony, but they could not prejudice the cause of the defendants, and hence are not cause for reversal. The decisive question is as to-the occurrences in connection with the killing of Cole, for which the defendants are on trial. The indisputable facts-are that Tom Tolbert had been sentenced to the penitentiary for life, and, after being put in, had escaped and returned to his father’s house in Kemper county, and was in the habit of going where he chose and meeting people of his acquaintance, and was usually, if not always, armed, and often with* *189both, pistol and repeating rifle, and no effort was made to arrest him, although many months elapsed during which he enjoyed his liberty, He was sometimes attended by a brother, armed. The day before the killing of Cole, he and his brother John were at an Indian’s blacksmith shop, and both were armed, when Mr. Donald encountered them, and shot and killed John, who had a repeating rifle, and shot at Tom, who shot at Donald. Just then the community was aroused, and the sheriff was sent for, and came into the vicinity. On his suggestion, several citizens, assembled to render him assistance to arrest Tom Tolbert, went at early dawn of the next morning after John was killed, and placed themselves on two paths leading through woods away from the home of Tom’s father, wlhere he was supposed to be, two men being on one path and three on another. Soon the two Tolberts — Tom and John — came along the trail on which, Cole, Cummings and Harbour were watching, and the dog of the Tolberts barked at the men, when Tom and Walter, both armed — Walter with the repeating rifle and Tom with only a pistol, he says — immediately commenced firing, as the state’s witnesses say, and made ready, and demanded to know “Who’s there?” as the Tolberts say; and in the firing Cole was killed by a shot of one of the Tolberts. There Was much shooting, and probably ten or twelve discharges of fire-arms. The testimony conflicts as to which party shot first, and as to the precise order of the exciting occasion; but it distinctly appears that the Tolberts were both well armed, and that, when the dog barked, shooting commenced very soon. It is a just inference that the Tolberts were on the alert, and had their weapons ready for instant use. It is true that no announcement was made to Tom by his would-be captors that they had come for him and wanted him, but it is reasonably certain that he had just gfound to believe that he was the object of pursuit that morning, and when he called to learn who was there, he was ready to open fire; and, whether he or Walter shot first, or the other parties did, *190is not very material, for it is not to be tolerated that an escaped felon, arrayed against organized society, defying civil authority, with arms in his hands to resist arrest, and with an armed ally in the person of another, shall be treated with the consideration due to citizens generally. It may not be allowable for any one finding him to shoot him down on sight; he may not be, as Cain complained he was, liable to be slain by any one finding him, but, in his attitude, neither an officer nor citizen arresting him was bound to take any risk of being shot first. The very presence of Tolbert with arms and an armed attendant, was an overt act, apparently threatening towards any seeking to arrest him, justifying killing him on the very slightest indication of a purpose to use his deadly weapons to prevent arrest. A citizen may bear arms for his defense against unwarranted attack. An escaped penitentiary convict has not the right to bear arms for the unlawful purpose of defying civil authority and preventing arrest; and, as all have legal authority to arrest him, his demonstration of purpose to use deadly weapons against captors justifies his being killed.
These observations apply to Tom, and, as Walter was with him on this occasion, armed, and afterwards fled with him, and was with him in his final surrender, still keeping his trusty rifle, and thus showing himself an ally of Tom, and warranting the belief that he was with him on the morning Cole was killed, to make common cause with him in resisting arrest, much as sympathy for Walter maybe indulged for obeying his fraternal instinct and adhering to Tom, and sad as it is that a youth of nineteen years of age should be thus involved in crime and punishment as the consequence of espousing the cause of his older brother, we are not able to say that any distinction as to -guilt can be drawn between Tom and Walter, while a great difference might be justly made as to the punishment of the two.
We think the vei’dict right upon the testimony, while we are far from being satisfied that the Tolberts fired first in the *191melee in which Cole was killed. If they did not, as they were exhibiting deadly weapons, under the circumstances, the other parties were not required to wait, and had the right to shoot and kill them.
The mistake as to the juror, Archer, whereby one not competent and not drawn, but summoned by mistake, as he had the same name, attended, and was accepted and served, is not ground for setting aside the verdict. Const. 1890, § 264. It is only where that occurs which impugns the fairness of the trial that a ground is presented for a new trial. While it is not surprising that the mistake as to the juror, Archer, was not discovered, under the peculiar circumstances so well calculated to mislead, it cannot be affirmed that it might not have been discovered by diligence before the jury was impaneled. The Archer drawn was an elderly man, fifty-eight years of age and a well-known citizen. The Archer summoned and who served, was a young man, and recently had moved into the county from another slate; and it would seem that inquiry as to the Archer drawn, extending beyond his mere name, would have at once suggested that the young stranger who answered to the name when called was not the one drawn and inquired about; and on this ground the mistake was not cause for setting aside the verdict.
The right of a defendant is to have an impartial jury rather than one composed of particular persons; and where this right has been enjoyed, there -is little cause for complaint, ordinarily, after verdict. An'acquittal by such a jury would avail the defendant; and, having had a chance of escape at the hands of the jury, he should not be allowed to profit by an innocent mistake or inadvertence which, in fact, did him no harm.
The effort to show relationship between one of the jurors and Cole, who was killed, was a failure, which is all that need be said of that ground of complaint against the verdict.
"We find in the record no ground for disturbing the conviction of both defendants, and the judgment is therefore
Affirmed.