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[Cite as Galvin v. State, 46 Tenn. (6 Cold.)
283 (1869). NOTE: This decision discusses the act of resisting unlawful
arrest in terms of self-defense. The court observed, "The law recognizes the
sacredness of the right of personal liberty, and jealously guards it from
violation. It recognizes the fact, that an invasion of that right may be, and
often is, the most aggravated provocation." (Pp. 291-92) The court
applied Tennessee's prohibition on going armed in affray of the peace and
carrying a class of weapons, (P. 294). By
violating these statutes the plaintiff was lawfully subject to arrest and had no
justification to resist.]
James Galvin vs. The State.
1. Grand Jury. Good and
lawful men. Presumption in favor of the action of the Court. It appearing in
the record, that the grand jury were duly elected, impaneled, sworn and charged,
is sufficient; and having been elected and impaneled under the direction of the
Court, it must be presumed they were good and lawful men.
2. Same. Regular panel.
May be included in panel made up by sheriff, from which to select a traverse
jury. It is not error in the sheriff, in making up a panel of 57 men, to
include the regular panel of jurors from which a traverse jury is to be
3. Affidavit of juror after
verdict. New Trial. An affidavit of one of the jurors who returned
a verdict against the defendant, of "murder in the first degree," states, that
his judgment and conscience did not approve of the verdict, that he agreed to it
because a great majority of the jurors favored the verdict, and a great desire
on his part to be discharged, and believing that the Court would fix the
punishment either by sentence of death or by imprisonment; but since he had
learned that the Court had no discretion under such a verdict, as to the
punishment, his judgment and conscience did not approve of the verdict. That he
believed, and still believes, that the defendant was guilty of one or the other
grades of homicide; but that he does not approve of the verdict (p.284)inflicting the highest penalty, as the evidence in the
case did not, and now does not, justify the verdict. Held, that the reasons
stated by the juror in his affidavit, furnish no ground for a new trial.
4. Unlawful arrest. When
a trespass. Provocation. Belief of immediate danger of death or great bodily
harm. An unlawful arrest made, bona fide, under color of legal
authority, is but a trespass, and like other trespasses, it may not in the
particular case, constitute an aggravated provocation. The fact that an officer
or citizen attempting the arrest, (and being slain in so doing,) has exceeded
his authority, does not necessarily reduce the killing to manslaughter, if the
slayor had no valid reason to believe himself in immediate danger of death or
great bodily harm, and the homicide was, in fact perpetrated, not in passion or
sudden heat, upon the provocation of the arrest, but with cool, deliberate
malice and premeditation.
5. Same. A lawful
arrest. To kill an officer in making a lawful arrest, is murder. A lawful
arrest is not a provocation to passion and heat of blood; and if the officer
making the arrest had the right, under the circumstances proven, to make the
arrest, and was engaged--using no more force than was reasonably necessary--in
accomplishing it, then the killing of the officer by the defendant would be
murder; and the fact that the killing was in the heat of blood caused by a
lawful arrest, would not reduce the offense to the grade of manslaughter.
6. Same. Same. When a
homicide is reduced to manslaughter. Use of deadly weapons to resist an
arrest. An attempt to arrest a person in violation of law, may afford such
provocation to the person arrested, as to reduce the killing from murder to
manslaughter. The killing is still unlawful and a felony. If the attempt to
arrest be unlawful, the party sought to be arrested may use such reasonable
force proportioned to the injury attempted upon him, as is necessary to effect
his escape, but no more; and he can not do this by using, or offering to use, a
deadly weapon, if he has no reason to apprehend a greater injury than a mere
7. Breach of the peace.
Indecorum. A breach of the peace is a violation of public order. The
offense of disturbing the public peace, and an act of public indecorum is also a
breach of the peace.
8. Deadly weapons.
Carrying them. The statutes of this State prohibit the carrying of deadly
weapons: Code, sections 4753-4757.
The plaintiff in error was, at the ------ Term,
1868, of the Criminal Court, found guilty of murder in the (p.285)first degree, and after motion for a new trial and
arrest of judgment were overruled, sentence of death was passed upon him; from
which verdict and judgment, he appealed to this Court. Special Judge, Joseph E. Bigelow, presiding.
J. Bullock and H. Clay King, for the Plaintiff in Error.
George Gault, for the
George Andrews, J.,
delivered the opinion of the Court.
James Galvin was indicted in the Criminal Court of
Memphis, for the murder of John Fenton. He was convicted of murder in the first
degree, and sentenced to be hung; and has appealed in error to this Court. A
number of questions arise upon the record in the case.
It is claimed, that the record does not show that the grand jury was
impaneled of "good and lawful men." The record shows, that the members of the
grand jury were "duly elected, impaneled, sworn, and charged," and that, in our
view, is sufficient. They having been elected and impaneled under the direction
of the Court, it must be presumed that they were good and lawful men: McClure vs. State, 1 Yerg., 215.
It is claimed that the Court erred in directing the sheriff to summon
a panel of 57 men, for the election of the traverse jury, including the regular
panel of 19 jurors, and that the prisoner was entitled to have the (p.286)full panel of 57 summoned, excluding the
regular panel in attendance. There was no error in this. We see no objection to
the practice; it is not prohibited, and is in accordance with common practice in
On the motion for a new trial, the defendant filed the affidavit of
A. J. Collins, one of the jurors, who tried the cause, to the effect, that,
though he assented to the verdict of "guilty of murder in the first degree," his
judgment and conscience did not approve the verdict; that he assented in
consequence of a large majority of the jurors being in favor of such a verdict,
because of an earnest desire to be discharged, and under the belief that, upon
such a verdict, the Court could fix the punishment, either by sentence of death
or by imprisonment; that since he has learned that the Court, upon the verdict
rendered, had no discretion as to the punishment, his "judgment and conscience"
do not approve the verdict; that he believed and now believes, that the
defendant "was guilty of one or the other grades of homicide, but that he does
not approve the verdict inflicting the highest penalty, as the evidence in the
case, in his judgment, did not, and now does not, justify such verdict."
The Court had distinctly instructed the jury, as appears by the bill
of exceptions, that the punishment for murder in the first degree is death,
unless the jury should find that there were mitigating circumstances in the
case, and should incorporate the same in their verdict; and it is difficult to
see how the juror could have misunderstood the matter. The affidavits of two
other jurors were read, showing that the subject of a (p.287)recommendation to mercy was discussed by the jury; that
they were charged and understood that, without such recommendation the Court had
no power to commute the punishment; and that Collins, though at first in favor
of such recommendation, yielded the point, and agreed to the verdict
The affidavit of Collins shows that he agreed to a verdict of murder
in the first degree, supposing that it would be in the power of the Court to
sentence the prisoner either to death or imprisonment, and only dissented when
he found that the Court had no such discretion. It is not charged that the juror
was led to assent to the verdict by any unfair means--that there was any fraud,
misrepresentation, coercion, or undue influence. Collins' affidavit is far from
being a consistent or a sensible one. If we would be justified in any case, in
permitting the affidavit of a juror, that he had misunderstood the charge of the
Court, which appears plainly and distinctly in the bill of exceptions, I do not
think we would be justified in so doing in this case: 4 Humph.,
In Crawford vs. State, 2 Yerg., 60, it was held
to be ground for new trial, that it was shown, by the affidavits of two jurors,
that they were not satisfied of the guilt of the prisoner, but had assented to
the verdict of guilty with a recommendation to mercy, upon the belief that the
Governor would certainly pardon the defendant and that there could be no doubt
of a new trial being granted.
In Nelson vs. State, 10 Humph., 518, 533, the
affidavits of the five jurors, were received, showing that (p.288)they were induced to believe, from the arguments of
their fellow-jurors, that if they found a verdict of guilty, with a
recommendation to mercy, the Court could adjudge a punishment short of death,
and that they would never have consented to the verdict if they had not so
believed. The Court had no such discretion in that case; but the action of the
Court itself, as well as other circumstances, led the jury to believe that the
power existed. The Court say: "We do not think that a verdict ought to stand
when the life of a human being is involved, which has been rendered under the
influence of such manifest misconceptions of the legal effect of it; especially
where these misconceptions have been produced and fortified by the action of the
I do not think that either of the above cases goes far enough to
justify this Court in granting a new trial upon the affidavit produced in the
present case. And we are not disposed to extend the rule in favor of granting
new trials upon such affidavits, any farther than it has been carried by former
decisions of this Court.
The main facts sufficiently established by the evidence, are as
follows: On the 25th of December, 1867, about twelve or one o'clock in the day,
the defendant, Galvin, with two other men, named respectively, Connell and
McGrain, were in company in the City of Memphis, and either Connell or Galvin,
the evidence being conflicting as to which of the two it was, knocked down and
injured a colored man there present. The negro went to seek a policeman, and
soon returned with Fenton, the deceased, who was a (p.289)policeman of the city of Memphis, then on duty, and in
uniform. Fenton endeavored to arrest Connell, and a severe conflict ensued, in
the progress of which Fenton was knocked down in the gutter. I. D. Jones
testified, that while Fenton was down, Connell was over him, and Galvin had hold
of him. Fenton got up, and he and Connell struggled to the middle of the street.
Galvin drew his pistol and said nobody should arrest him, or Connell, witness
did not know which. Chamberlin, another policeman came up, and Fenton said,
"arrest that man." Chamberlin went for Galvin, who drew his pistol and
Chamberlin did not take him. Mr. Jones testified, that two or three men were
struggling with Fenton, and got him down in the gutter. Fenton got up and
struggled across the street. Galvin had his pistol out and swore that whoever
attempted to arrest them, he would shoot. Chamberlin came up, and some one said
to him, "arrest that man;" Galvin waved his pistol and said the first man that
attempted to arrest him, was a dead man.
I. H. Chamberlin, the policeman, testified that he came up while
Fenton was engaged in the scuffle with Connell. Galvin had his pistol in his
hand, and said, that any "man that arrested that man, I'll shoot." Mrs.
Chamberlin testified, that Fenton was thrown down in the gutter: he got up and
struggled out into the street, and was again thrown down; and while he was down,
Galvin kicked at his head, but just then his head was thrown or pressed down,
and the blow went over his head. Before they got done the scuffle, Chamberlin
came up, and Fenton said, "arrest that (p.290)man." Chamberlin started to arrest Galvin, who had his
pistol out and presented it. Chamberlin had no pistol, and did not make the
arrest. Galvin pushed Chamberlin back and said, if he attempted to arrest him he
would be a dead man. Chamberlin searched for his pistol, and Galvin said to him,
"if you go for your pistol you are a dead man."
It further appears, that Fenton having got clear from Connell and
McGrain, started across the street towards Galvin, who had turned to go away,
saying to Galvin as he did so, "I want you." Galvin, who had his pistol in his
hand, stopped, turned and presented his pistol at Fenton who was advancing
towards him, and said, "don't you come any nearer, or I'll shoot you." Fenton
continued to advance, having his hand in his bosom, but no pistol drawn. At
Galvin's threat he stopped, and Galvin said, "you go for your pistol and I'll
shoot you." Fenton drew his pistol, and as he was cocking it, Galvin fired at
him, the ball grazing his person, and killing a boy behind him, Galvin fired one
or two shots, and then Fenton fired. Each fired several shots, and by one of
those fired by Galvin, Fenton was killed. Two of defendant's witnesses testified
that Fenton fired first, but this testimony is contradicted by such an amount of
testimony as to be incredible.
The principal ground of defense relied upon in this case, is, that
the killing of Fenton was committed by Galvin, in the defense of his person
against an assault or unlawful arrest, and therefore, must be held to have been
either justifiable homicide, or manslaughter. (p.291)The evidence clearly shows, that Fenton at the time of
the killing, was attempting to arrest the defendant. If Fenton had no right to
make such arrest, under the circumstances proven in this case, he was guilty of
an assault, which the defendant had the right to resist. And though the
defendant in such case had no right, unless he had reason to believe that he was
in immediate danger of death, or of great bodily harm, to take the life of the
officer, the provocation of the unlawful arrest, might be sufficient to reduce
the offense to the grade of manslaughter: 2 Whart., Am. Cr. Law, secs.
981, 1034-7; Tackett vs. State, 3 Yerg., 392.
The doctrine has sometimes been stated without qualification, that
homicide, committed in the act of resistance to an illegal arrest, will be
manslaughter, and not murder. Manslaughter is the unlawful killing of another
without malice, either express or implied. Where the homicide is shown to have
been committed on sudden quarrel, and in the heat of blood, the law making a
concession to human infirmity, refuses to imply the malice, which would, under
other circumstances, be presumed from the use of the deadly weapon, and
"mercifully hesitates to put on the same footing of guilt, the cool deliberate
act, and the result of hasty passion."
But where no adequate provocation exists, or where no passion or
heat of blood results, the willful slayor can not extenuate his cool, deliberate
act of killing by the pretence that he had a right to be in a passion.
The law recognizes the sacredness of the right of (p.292)personal liberty, and jealously guards it from
violation. It recognizes the fact, that an invasion of that right may be, and
often is, the most aggravated provocation. But the only effect to be given to
the fact that the killing was in resisting an illegal arrest, rests upon the
proven or presumed provocation; and the law does not arbitrarily reduce to the
grade of manslaughter every homicide which may be committed in the act of such
resistance, without reference to the presence or absence of actual malice and
An unlawful arrest, made bona fide under color of legal
authority, is a trespass, and like other trespasses, it may, or may not, in the
particular case, constitute an aggravated provocation. And the mere fact that
the officer or citizen attempting the arrest, and being slain in so doing, has
exceeded his authority, does not necessarily reduce the killing to manslaughter,
if the slayer had no reason to believe himself in imminent danger of life, or
great bodily harm, and the homicide were, in fact, perpetrated, not in passion
or sudden heat, upon the provocation of the arrest, but with cool, deliberate
malice and premeditation: 1 Archb. Cr. Pr. and Pl., 7 ed., 865;
Whart. Amer. Law of Homicide, 64.
But the law does not allow that a lawful arrest is provocation to
passion and heat of blood. And, if the officer had the right, under the
circumstances proven, to make the arrest, and was engaged, using no more force
than was reasonably necessary, in accomplishing it, then the killing of him by
the defendant would be murder; and the fact that the killing was in (p.293)the heat of blood caused by a lawful arrest,
would not reduce the offence to the grade of manslaughter.
The provisions of the Code in regard to arrests, are substantially
in affirmance of the common law, and are as follows:
Sec. 5037. "An officer may, without a warrant, arrest a person:
First, for a public offense committed, or a breach of the peace threatened in
Sec. 5038. "When arresting a person, the officer shall inform him
of his authority and the cause of the arrest, and exhibit his warrant, if he
have one, except when he is in the actual commission of the offense, or is
pursued immediately after an escape."
Sec. 5040. "If, after notice of the intention to arrest the
defendant, he either flee or forcibly resist, the officer may use all
necessary means to effect the arrest."
By the Metropolitan Police Law, of 1866, under
which the police of the City of Memphis were appointed, it is provided that,
"the several members of the police force shall have power and authority to
immediately arrest, without warrant, and to take into custody, any person who
shall commit, or threaten or attempt to commit, in the presence of such member,
or within his view, any breach of the peace, or offense, directly prohibited by
Act of the Legislature, or by any ordinance of the city, etc." And it is by the
same Act declared to be their duty to preserve the public peace, prevent crime,
detect and arrest offenders, suppress riots, protect the rights of persons and
property, enforce every law relating to the suppression and punishment of crime,
or to disorderly persons, etc.(p.294)
The Code prohibits the carrying of deadly weapons:
Sec. 4753. "No person shall publicly ride or go armed to the
terror of the people; or privately carry any dirk, large knife, pistol, or any
other dangerous weapon, to the fear or terror of any person."
Sec. 4757. "No person shall, either publicly or privately, carry a
dirk, sword cane, Spanish stiletto, belt or pocket pistol, except a knife,
conspicuously on the strap of a shot pouch, or on a journey to a place out of
his county or State."
A breach of the peace is "a violation of public order, the offense
of disturbing the public peace. An act of public indecorum is also a breach of
the peace." Bouvier Law Dict.
It is urged for the defendant, that Fenton had no right to arrest
Galvin on the occasion in question, because Galvin, as alleged, had not at the
time of the attempted arrest, committed any public offense, or threatened any
breach of the peace, in the presence of the officer.
It would seem that, strictly, Fenton had no right to arrest either
Connell or Galvin, without a warrant for the offense of striking the negro, the
assault not having been committed in his presence. And the person sought to be
arrested, had the right to resist such arrest with a degree of force
proportioned to the emergency, but not to kill the officer in so doing, unless
he had reason to believe that he was in imminent danger of death, or of great
bodily harm. The attempt to arrest a person in violation of law may afford such
provocation to the person arrested as to reduce the killing (p.295)from murder to manslaughter; but the killing is still
unlawful, and a felony. If the attempted arrest be unlawful, the party sought to
be arrested, may use such reasonable force, proportioned to the injury attempted
upon him, as is necessary to effect his escape, but no more; and he can not do
this by using or offering to use a deadly weapon, if he has no reason to
apprehend a greater injury than a mere unlawful arrest.
The evidence plainly shows, that, while the struggle in the street
was going on, Galvin was not under arrest, but was himself assaulting the
officer, with the design to aid Connell. Whether the attempted arrest of Connell
was lawful or unlawful, Galvin had no right to interfere and assault the officer
by striking or kicking him, or by the use of a dangerous weapon. Galvin's only
right was to preserve, by proper means, his own person from unlawful arrest, or
to use sufficient force to prevent an affray, or separate the combatants. He had
not the right to interfere for the assistance or rescue of Connell, who stood in
no relation to him justifying such interference, by assaulting the officer, or
displaying deadly weapons.
By this interference of Galvin in aid of Connell, by assaulting the
officer, and by drawing his pistol in the public streets, and publicly
threatening to shoot any one who should attempt to arrest him or Connell, Galvin
was guilty of actual as well as threatened breach of the peace.
He was guilty of a violation of the law of the State and of a breach
of the peace, in being there, publicly armed with a pistol, and in assaulting
and threatening the life of Chamberlin therewith.(p.296)
For these violations of law and public order, committed in his
presence, Fenton might lawfully arrest him, and it was clearly his duty to do
The evidence, and Galvin's declarations that he would shoot any man
that attempted to arrest him, showed that Galvin knew that Fenton's object was
to make the arrest; and, if not, Fenton's calling to him and saying, "I want
you," was sufficient notice. His uniform and club were sufficient notice, under
the circumstances, of his official character, if the other circumstances in
evidence left, as they do not, any doubt as to Galvin's knowledge upon that
point: Lewis vs. State, 3 Head, 148.
Every murder perpetrated by means of poison, lying in wait, or by
any other kind of willful, deliberate, malicious, and premeditated killing, is
murder in the first degree. "Premeditation involves a previously formed design,
or actual intention to kill. But such design or intention may be conceived, and
deliberately formed in an instant. It is not necessary that it should have been
conceived, or have pre-existed in the mind, any definite period of time anterior
to its execution:" Lewis vs. State, 3 Head, 148. The
evidence of deliberation and premeditation in this case, was undoubtedly
sufficient to authorize the verdict of murder in the first degree.
We are unable to discover any error, or defect in the charge of the
Court, to the prejudice of the defendant.
The judgment must be affirmed.