delivered the opinion of the court.
It was competent for the state to prove that the appellant had been guilty of burglary on the night preceding the homicide, because:
1. That fact tended to show that the deceased had the right, to arrest the appellant without a warrant.
2. It tended to show that appellant knew why he was. sought to be arrested.
The pursuit of appellant was a fresh pursuit, within the-meaning of § 3026, code 1880. What is fresh pursuit must be determinable by circumstances, and where, as in this case,, a felony is committed at night, discovered in the morning: and the officer immediately follows and overtakes the felon,, who is attempting to escape, it is not necessary that he shall have á warrant for his arrest; and where, as here, the-fleeing felon is commanded to surrender, but refuses so to do, and runs away, and, being overtaken, kills the person seeking to-arrest Mm, he cannot invoke the principle of self-defense.
This case, in all its facts, is strikingly similar to People v. Pool, 27 Cal., 572, in which the questions here decided were, involved.
Judgment affirmed.