¶11. While, under section 4723 of the code, an officer may, without a warrant, make an arrest for an offense committed in his presence, he has no authority, upon bare suspicion or upon mere information derived from others, to arrest a citizen and search his person in order to ascertain whether or not he is carrying a concealed weapon in violation of law. The constitution of this State expressly declares in the bill of rights that: “The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated.” Code, §5008. If any search is unreasonable and obnoxious to our fundamental law, it is one of the kind with which we are now dealing. Even if the person arrested did in fact have a pistol concealed about his person, the fact not being discoverable without a search, 'the offense of thus carrying it was not, in legal contemplation, committed in the presence of the officer, and 'the laltter violated a sacred constitutional right of the citizen in assuming to exercise a pretended authority to search his person in order to expose his suspected criminality.
¶22. It appears from the evidence that shots were exchanged between the officer and the accused, who was the person sought to be arrested and subjected to search. The latter was indicted and tried for assault with intent to murder. It was a contested issue of fact as to who fired the first shot. The court, in its charge, gave the instruction quoted in the second head-note, the error of which is obvious, for the reason that it eliminated altogether from consideration all question of justification on the part of the accused. The court, by this charge, assumed that the accused was inevitably guilty of some offense; whereas, under *16the evidence 'as it appears in the record, this was & matter for the jury to determine. Judgment reversed.