¶1delivered the opinion of the court.
¶2The testimony of the witness, McCaleb, was properly admitted. As we understand the record, he testified that his report of the interview with the prisoner, as published, was an accurate statement of what occurred between him and the prisoner, and he adopted it as his testimony, but was not willing to affirm that it was verbally accurate, or that it contained all that the prisoner said. It accords with both English and American authorities in such case to admit the testimony. See 15 American Dec., p. 194, for an intelligent presentation of the true rule on this subject.
¶3*95No error was committed in excluding the testimony of Matt ' Clay, Jr.
¶4By the common law it is lawful to kill a fleeing felon, where he cannot otherwise be taken, and the necessity of such killing is a fact for the jury to determine. “If the warrant be for felony, flight is tantamount to resistance, and the fleeing felon may be justifiably killed, if he cannot be otherwise secured,” was the utterance of a judge in Rex v. Finnucane, 1 Craw. & D. 1. It is required that the officer shall act with caution and prudence, and shall not precipitately resort to fire-arms as a means of making an arrest.
¶5Our statute, § 2878 of the code, makes homicide justifiable “ when necessarily committed in arresting any felon fleeing from justice,” and is merely declaratory of the common law on this subject. The officer who kills one for whom he has a warrant for felony, must satisfy the jury trying him for the homicide that he tried in good faith, and with reasonable prudence and caution, to make the arrest, and was unable because of the flight of the person to secure him, and that he resorted to the severe means employed when other proper means had failed, and when, as determined by the state of things as between him and the fleeing felon, the arrest could not be made without a resort to the means employed.
¶6The jury is to judge of the necessity to kill, claimed by the officer as a justification of the killing, and the fact should be ■ determined by a consideration of all the circumstances attending the officer and the deceased at the time, and a reasonable doubt whether the killing was necessary or not should secure the acquittal of the officer.
¶7Tried by these views, the jury was wrongly instructed.
¶8The first instruction for the state is an invasion of the province of the jury, because it directs a conviction if the jury believes certain things stated in it, and does not have reference to the circumstances attending the parties, as shown in evidence, which the jury, but for the instructions, might have considered as justifying the killing. The alleged necessity for the killing being a fact for the jury to determine, should be left to the jury without any opinion *96from the court as to the influence of any given facts, or their insufficiency to establish a particular conclusion. The same objection applies to the second and third instructions for the state.
¶9The fourth instruction is not correct as applied to this case. The accused claimed to have killed the deceased under circumstances which justified it, because of necessity, and the jury should have been allowed to pass on that question of fact.
¶10The fifth instruction for the state is of doubtful meaning and questionable propriety. What idea is contained in the word “ apparently ” employed in it is not apparent to us.
¶11The court instructed the jury quite fully and liberally for the' accused. Most of the instructions refused were properly refused, but the fifteenth and sixteenth asked by him should have been given. Undoubtedly, if the jury believed that the killing was probably necessary to prevent the escape of the fleeing felon, the accused was entitled to an acquittal, and that is the proposition contained in these instructions.
¶12Reversed and remanded for a new trial.