¶1On Rehearing.
¶2Our Supreme Court has now, since the rendition of our original opinion, squarely decided, for the first time, as we are advised, that an “officer having authority to make arrest has no authority to arrest fugitive from justice without warrant.” See Bank of Cottonwood et al. v. Hood (Ala. Sup.) 149 So. 676, application for rehearing overruled September 28, 1933.
¶3This gives pith which we were not, before that decision, sure existed in appellant’s argument for error in the trial court’s instructions to the jury to a contrary effect.
¶4True, as pointed out in our original opinion, the question was, strictly speaking, an abstract one in the case; but the instruction being positively erroneous, and it being conceded that the “officers” had no efficacious warrant for the arrest of appellant, and the testimony being in so many particulars in violent conflict, we are forced to the conclusion that, as’ a practical matter, the “error complained of has probably injuriously affected substantial rig’hts” of the appellant. So we must order a reversal of the judgment of conviction because thereof. Supreme Court Rule 45.
¶5Also, on further consideration and study, we are of the opinion that it was error, and obviously prejudicial, to refuse to allow appellant to introduce testimony as to threats, etc., both communicated, etc., and otherwise, mad.e against him by various members of the posse for the assault upon which, or the members of 'which, he was convicted. And this in the face of the fact that he, and all his witnesses, claimed that he was not present upon the ill-fated occasion at all. See Ward v. State, 4 Ala. App. 112, 58 So. 788; Love v. State, 16 Ala. App. 44, 75 So. 189; Davis v. State, 20 Ala. App. 131, 101 So. 171; 16 C. J. 98.
¶6Our opinion is thus extended, the application for rehearing is granted, the odder of affirmance heretofore entered is set aside and held for nought, and the judgment of conviction is reversed, and the cause remanded.
¶7Opinion extended. Application granted. Reversed and remanded.