The opinion
SIBLEY, District Judge
(concurring).
The federal offense of resisting an officer in the execution of his duty is not made out if the officer was in fact not executing his duty but committing a trespass of unlawful arrest. It follows that it was error in the court under the evidence in this case not to submit the question of the lawfulness of the arrest to the jury and to charge instead that “all this talk about unreasonable search and seizure has absolutely nothing to do with this case.” I think, however, the requested charge in its conclusion, “And for the purpose of said resistance the defendant was at liberty to use such force as was at his command and necessary to prevent said arrest,” should not have been given because not adjusted to the facts of the case. It is true that a killing in resistance to a false imprisonment is not mur *683 der but manslaughter. John Bad Elk v. United States, 177 U. S. 529 , 20 S. Ct. 729 , 44 L. Ed. 874 . But the rule generally followed is that, before one can be justified in killing or trying to kill in resistance to an unjustified arrest, the officer himself must have proceeded to such a length as that it appears necessary that he bo killed to prevent the killing of or serious injury to the person sought to be arrested. Reichman v. Harris (C. C. A.) 252 F. 371 ; Williams v. State, 44 Ala. 41 . An officer though mistakezl in his duty is no more liable to be made the target of bullets than any other person committing a similar trespass. 30 C. J. § 257, and cases cited. The offense here of unlawful shooting would be one punishable in the state courts and not in the federal courts, but that does not require the federal judge to charge bad law.