84 Tenn. 510 | Tenn. | 1886
delivered the opinion of the court.
The defendant was indicted in the criminal court of Memphis for carrying a pistol in violation of law. It is agreed he did carry a pistol, but his defense is that he was a regular policeman of the city, wearing its uniform, engaged at the time of the carrying in
The only question is, whether a policeman* on duty, one whose duty was, among other things, as agreed, to arrest all persons violating the law within his beat or sphere of duty, as well as in other cases, when it could be legally done, is entitled to wear a pistol under our law as it stands on our statute books? The carrying of all pistols is forbidden except the army or navy pistol, and these must be carried openly in the hand: Code, sec. 5533.
The exceptions to the mandate of the statute, as given in section 5535, among others, are persons employed in the army, etc., or any officer or policeman, while bona fide engaged in his official duties, in the execution of process, or while searching for or engaged in arresting criminals.
In Gayle v. State, 4 Lea, 467, we held a tax collector, with a tax list in his hands for collection, was not an officer within the spirit of this act, therefore not within its exemptions. This was sustained by Judge McFarland on the ground that there was “ no necessity for such a weapon, or the use of arms in such cases.” “ The duties to be performed do not need to be enforced with a pistol,” he said, “while on the other hand, in the execution of criminal process, or in the searching for or arresting criminals, there may be a real necessity for allowing officers to provide themselves with the means of preventing resistance.” He added, “ The word officer in the statute
In Beasley v. State, 5 Lea, 705, 706, this court held, that “where an officer proposed to justify on the ground that he had a warrant in his possession for the arrest of a'party, and was-at the market-house in Nashville, expecting to find the party there that day, that oh- objection by the State to parol proof, he must produce the process under which he acted, or a certified copy by the proper custodian.”
In Miller v. State, 6 Baxt., 450, 451, it was held, the statute “did not apply to a justice of the peace, whose duty it was to issue warrants for arrest of offenders, and who carried the pistol to and from his office, or. going home and to his office.” Judge McFarland, again delivering' the opinion of the court, said, “ Those officers who are alone allowed thus to carry arms, that is those who execute process, or search for and arrest criminals, can only do so while bona fide engaged in these duties.”
In the case of Horn v. State, 6 Lea, 336, Horn was shown to have been a regularly commissioned private detective, appointed by the mayor of the city of Edgefield, under an ordinance of that city. At an election held in the city he had a pistol on his person, drew it from his pocket' and handed it to a friend, it being agreed that he acted in good faith, believing he had a right, by virtue of his office, to carry a pistol, but had no warrant for the arrest of any one at the- time. Chief-Justice Deaderick, deliv
None of these cases precisely cover the question presented in this case. The decision turns on the question whether an officer or policeman can carry arms when engaged in execution of process then in his hands, or while searching for or engaged in arresting criminals under such process, and also, whether he must, at the time be actually engaged in the arrest of some particular criminal, or searching for some particular party so charged? If this literal construction of the statute is the true intent and meaning of the Legislature, then the party before us is guilty. If, however, a more liberal construction can be given, and it be held to include an officer, like a policeman, who is at the time engaged in the performance of a general duty, which requires him to arrest all violators of law coming within his cognizance, the general line of duty being one in which he may have to arrest at any time during the hours of service, and that without any warrant or process, then he is not guilty.
It may well be argued this latter is a safe con
Again, if the officer has a warrant for an offender he is clearly protected while engaged in his arrest, or in searching for him. Why? Because he is bona fide engaged in the performance of his official duties in execution of process. But it is equally his duty to arrest, especially the duty of a policeman, whenever an offense is committed in his presence, by day or by night, and it would be difficult to see a reason why he should not be equally protected in this case as well as if he had the process. In either case he but obeys the law, the act to be done is the same, and in the case of the policeman, the chances are it will be the more dangerous, in many cases, when he attempts arrests at night for crimes suddenly coming under his observation, such as murders, or attempts
We have no doubt the spirit and intent of the act under consideration fairly exempts the policeman from its penalties, under the facts of this case.
The judgment below must be reversed and judgment in accord with this opinion.