majority">Shaw, C. J.

then stated that the court were of opinion, and proposed to instruct the jury, that if a prisoner is unlawfully arrested, and if in resisting the arrest, or attempting to escape, he takes the life of the person so arresting him, although the act is not justifiable, and amounts in law to a criminal homicide, yet it is not homicide with malice aforethought, which is necessary to constitute murder, but it will, in contemplation of law, be manslaughter. This was a principle somewhat technical, but yet well established by law; that although in many cases, and even in the present case, if the evidence already offered should remain uncontroverted, the act might be done under such circumstances of deliberate cruelty, as would equal or surpass, in point of atrocity and moral turpitude, many cases recognized as murder; yet the prisoner must be tried by the rules of law, and not by the aggravation of the offence, as tried and tested by another and different standard.

Upon the question of the legality of the arrest, the opinion of the court was, that any person, whether a police-officer or a private person, may lawfully arrest any one guilty of a felny, with a view to bring him before a magistrate, that proceedings may be further taken to bring him to punishment. There was this difference, however, that a private person, who arrests another on a charge of felony, does it at the peril of being able to prove a felony actually committed by the person arrested. But if a constable or other peace-officer arrest a person without a warrant, he is not bound to show in his justification a felony actually committed, to render the arrest lawful ; but if he suspects one on his own knowledge of facts, or on facts communicated to him by others, and thereupon he has reasonable ground to believe that the accused has been guilty of felony, the arrest is not unlawful. Nor is it necessary, when a third person makes a complaint to a peace-officer against a person, and gives him in charge to the officer, that the accusation should in terms technically import a felony; but when the language in its popular sense would import such *252charge, it is sufficient; as, where one says to a peace-officer, I wish you to take such a person in charge for having in his possession counterfeit bills, the natural import is, that he intends to charge the party accused with having in his possession counterfeit bills, knowing them to be counterfeit, and with an intent to pass the same; without which incidents such possession would be innocent, and import no criminal charge at all.

But the court were further of opinion, that a constable or other peace-officer could not arrest one without a warrant, for a crime proved or suspected, if such crime were not an offence amounting in law to felony. This is the old established rule of the common law, adopted and acted upon in this commonwealth, by which courts of justice are bound to be governed, until altered by the legislature; that anciently there was a broad and marked distinction between felony and misdemeanor, the former being attended at common law with forfeiture of all the offender’s goods ; that by the statutes of this commonwealth, and especially by the revised statutes, the line of distinction between felonies and misdemeanors was in a great measure obliterated, and in many instances the law regarded as misdemeanors offences of a greater moral turpitud than many felonies, yet it had not changed the rule in ques tion; though perhaps it might be more wise in the legislature to make the rule in question applicable to offences measured by a different standard of aggravation, as by being punishable in the state prison, or otherwise.1

The court further held, under this rule, and as applicable to this case, that if Mr. Heywood suspected, or had reasonable cause to suspect, and acted on the suspicion, that the person had stolen money, or any other property, from the ticket-office, inasmuch as such stealing would have been larceny, and of course felony, the arrest was lawful, and the homicide committed by the person in attempting to escape would be mur*253der, and not manslaughter; and that this would be a question of fact for the jury. But, further; that the breaking open of the ticket-office, though with an intent to steal, but without in fact stealing, was a misdemeanor, and not a felony, and the arrest of the prisoner for that offence, or on a suspicion and belief, by a peace-officer, that he had committed that offence, would not be a lawful arrest. It was the breaking of an office in the daytime, and came under the provisions of Rev. Sts. c. 126, § 13. The court remarked that the statute of 1804, c. 143, § 5, which had been cited, had denominated the breaking a shop in the daytime, under certain circumstances, a felonious offence; yet two circumstances rendered that statute inapplicable to the present case. One was, that it was accompanied with the circumstance that such breaking be done when some one is in the house, and putting such person in fear, one of the aggravating circumstances belonging to the offences of burglary and robbery; and the other was, that the statute has been repealed, without the reenactment of any similar provision describing it as felony, but leaving it, as at common law, in the class of misdemeanors. If the deceased, therefore, in the present case, although legally qualified as a peace-officer, understood, suspected, and believed only that the prisoner had broken open the ticket-office, though with an intent to steal, and, acting upon that knowledge, suspicion, or belief, arrested the person without a warrant, it was an unlawful arrest.

In regard to the letter sent by Blaisdell to the deceased, the court were of opinion that it did not charge a felony, so as to make the arrest lawful without a warrant; it did not state or imply that the prisoner had stolen anything from the Stony Brook depot. Breaking open the depot would, of itself, be an offence for which the perpetrator would be liable to a severe punishment, but in character it was a misdemeanor, and not a felony; and, therefore, charging the prisoner with having broken open that" depot did not directly, or by implication, charge a felonious offence, for which he could lawfully be arrested without a warrant. It is distinguishable from the case before mentioned, of giving one in charge for having coun*254terfeit notes in his possession, because that charge necessarily implies a guilty knowledge and a guilty purpose, which, if they make the act criminal at all, make it a felonious one. Such were held to be the rules of law under which the court determined that the case must go to the jury.

Upon the announcement of the foregoing rulings, the counsel for the prisoner stated that they were not aware of any testimony which would essentially modify or control the case as it was presented by the evidence submitted on behalf of the government; and they proposed to submit it to the jury under the instructions of the court.

The chief justice then charged the jury in conformity with the foregoing rulings, and they returned a verdict of guilty of manslaughter.

See the statute passed after this trial, declaring that any crime punishable by death, or imprisonment in the state prison,' shall be considered a felony. St. 1852, c. 37.

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