¶1This appeal is from a conviction of voluntary manslaughter. The appellant was a constable and was deputized by another constable to assist him in arresting a number of persons who were charged in the warrant with assault and batteryj disorderly conduct and malicious destruction of property. Aftér one of the persons named in the warrant had been taken into custody, he broke away from the officers and, while running to effect his escape, he was shot and killed by the appellant. *431The instruction to the jury on the main point of the defense was that where a misdemeanor has been committed and is charged in the warrant, flight from an officer even after actual capture and custody, there having been no conviction, will not justify the use of a deadly weapon.
¶2This was a correct statement of the law. The rule is otherwise when felony has been charged or has been committed in the presence of the officer. While in the case of a misdemeanor an officer is never required to retreat and may meet force with force, he cannot justifiably take the life of a person who is fleeing from arrest or of one who has be.en arrested and has escaped from custody and is fleeing from him: 2-Bishop’s New Criminal Law, sec. 650; Kerr on Homicide, 11. In Wharton on Homicide, 3d ed., 1907, p. 741, it is said : “An officer has no right to shoot a person who is merely running away from him without committing any violence, when under arrest or to avoid arrest for a misdemeanor. He must at least stop short of force which will result in the sacrifice of human life; and a killing in such a case is manslaughter at least.”
¶3'We find no merit in any of the assignments of error. The judgment is affirmed.