It is well established that if a public officer be resisted and killed by one whom he is attempting to arrest illegally and without color of authority, the killing will be manslaugbter, unless the evidence shows previous or express malice.61

But the killing of an officer while he is making a lawful arrest is murder whether the person arrested is guilty or not of the offense for which he was arrested.62 If two men agree to fight two other men with their fists and one strikes an unlucky blow causing death, they would both be guilty of manslaughter only. But if one of them should use a knife or other deadly weapon, without the knowledge or consent of the other, he alone would be responsible for the death by the use of the weapon.63

57 Hughes Cr. Law, Sec. 30.

58 Reg. vs. Jones, 12 Cox, C. C, 628.

59 Hughes Cr. Law, Sec. 35.

60 State vs. Rose, 142 Mo., 418

(manslaughter of the fourth degree). 61 Raferty vs. People, 72 111., 37 - 40; Hughes Cr. Law, Sec. 265; 1 McClain Cr. Law, 340.