
    Tackett vs. The State.
    If a warrant commanding the arrest of an individual in the name of the state have no seal, it is void.
    If an officer attempt to arrest the party named upon such authority, he proceeds at his peril, and is a wrong doer; and if he be killed in the attempt by the party, the slayer is guilty of manslaughter, and not murder.
    The defendant was indicted at the June term 1830, of the circuit court of Tipton county, for the murder of Thomas Mitchel, and was found guilty by the jury, and sentence of death pronounced upon him; he appealed in error to this court.
    The facts proved, and necessary to be here noticed, were as follows: a peace warrant issued against the defendant, upon the compláint of one Elias Robertson, who swore before the magistrate that the defendant had threatened to take his life, and he was fearful he would, &c. The warrant was in the usual form, except that it issued under the hand of the magistrate, alone, without affixing his seal thereto. This warrant was placed in the hands of the deceased, (who was a constable,) to be executed by him. He attempted to execute it on Tack-ett. Tackett told him to stand off, and retreated, the deceased advancing on him. Tackett again told him to stand off; he still advanced, and attempted to seize Tackett, who thereupon discharged a gun, which __ he had in his hand, and killed him.
    
      J. Read and P. M. Miller⅜ for the plaintiff in error.
    
      A. B. Bradford, (Atto. Gen’l.) for the state.
   Peck, J.

delivered the opinion of the court.

In the case before us, though several points are made, they all resolve themselves into one; and that is, supposing the warrant as it is called to have been properly in the hands of the deceased, and that he was an officer with authority to have made the arrest attempted on the prisoner, with a sufficient process, was the one in his hands illegal for the want of a seal?

The authorities amply sustain the position of the counsel for the prisoner, that a warrant commanding an arrest on behalf of the state not having the magistrate’s seal, is void. 2 Inst. 52, 591. Salkeld, 174. 1 Hale, 577. 2 Hale, 110, 111. Hawkins’ book 2, ch. 13, sec. 21. Com. Dig. Improvement H. 7. 4 Blk. Com. 290. State vs. Curtis. 1 Hay. Rep.

Whatever modern authorities may seem to indicate to the contrary in England, we hold it on the authority of the case in Haywood above cited, that the common law of this country is so settled, and the seal cannot be dispensed with.

The officer therefore attempting to make an arrest upon this void authority, acted at his peril; in contemplation of law he had no process; and the attempt made to arrest the prisoner was not justified. The killing therefore having proceeded from the unauthorized attempt upon the person of the prisoner, reduces the of-fence to the crime of manslaughter. 1 Russell on Crimes, 733-4-5-6. Cro. Ch. 371.

The court below in trying the cause having given to the supposed authority all the force and effect of a lawful warrant, which is seen throughout the whole record, committed an error. Remove the warrant, and there was no right in the deceased to make the arrest; the effect of the evidence would be changed, and the transaction presented in a different light; the deceased is made a wrong doer, and whether there had been previous malice or not, the slaying was referable only to the attempt to arrest. This rule falls in with, and is directly applicable to, the evidence in this cause, for the prisoner attempted twice to depart in peace, before the attempt to arrest him, and in both instances was prevented by the deceased calling him back. Let the judgment of the circuit court be reversed, and the cause remanded to be proceeded in, in conformity to this opinion.

Judgment reversed.  