79 Tenn. 310 | Tenn. | 1883
Lead Opinion
delivered the opinion of the court.
Plaintiff in error was indicted and convicted of murder in the first degree for the killing of Frank B. Russell. The facts are, substantially, as follows : On the night, of the killing Russell was heard to cry, Halt! hált! halt! and immediately after the last cry the report of a pistol was heard. On going to the place witness found the prisoner lying on the sidewalk, and Russell standing over him with a pistol in his hand, the prisoner praying for mercy and begging Russell not to shoot him any more. Prisoner was shot in the rear portion of the leg, just below the hip joint. He had in his hand’ a bucket of lard. Russell said, “ D — n you! I’ve got you, have I ? Get up from there, I want to see if I know you.”
The prisoner was assisted in getting up, and led into .a drug-store. The bucket of lard was also taken in. The prisoner was seated on a stool. Russell said: “That is my bucket of lard; I bought it a day or two ago.” Defendant- made no reply. Russell, still with pistol in hand, said to prisoner: “Hold your head up, sir; I want to see you; I want to know who you are.”
“ The prisoner seemed to be in agony, was groaning and' going on at a terrible rate.”
Russell asked a clerk in the drug-store to telephone for- the police. While the clerk was doing so, the prisoner sprang toward the door. Russell
By Code, secs. 5042 and 5043, it is enacted that a private person may arrest another, 1. For a public offense committed in his presence; 2. When the person arrested has committed a felony, although not in his presence; 3. When a felony has been committed and he has reasonable cause to believe that the person arrested committed it. He shall at the time of the
The arrest in the present case was on pursuit, and the facts already cited show that the person was. fully advised of the cause for which he was arrested, and by his silence confessed to the larceny of the bucket of lard. There is ample proof in the record to convict him, at least, of the larceny.
The statute does not make it necessary, to show-that a greater offense had been committed. It is sufficient if a felony has been committed, and the party arresting had reasonable grounds to believe the arrested party had committed it. Here he was-found and seized with stolen goods in his possession,, and with which he was trying to escape.
The court charged the jury: “ If you find, that a felony had been committed, that is to say, if you find from the evidence that the business house of the deceased had been broken and entered for the purpose of stealing the personal property therein, -on the-night before the difficulty between deceased and defendant, and the deceased had reasonable grounds to-believe that the defendant was the party, or one of the parties, who committed said- crime, then the deceased had a lawful right to arrest the defendant,, and after the defendant was notified by the deceased of the cause of such arrest, it' was the duty of the defendant to submit to such arrest until he might be within a reasonable time turned over to the officers of the law. And if the defendant attempted to-
There is no error in this charge of which the prisoner .may- complain. It is too favorable to the prisoner. It was even against the State to confine the charge to the felony defined in the charge.
Russell had reasonable grounds to believe the prisoner guilty of stealing the lard. And having such reasonable grounds of belief, it was the duty of the prisoner to submit to the arrest as required by the statute. Reasonable grounds justified the arrest, 'whether the facts when developed would be sufficient to conyict or not. We must be controlled by the statute. Common law rules in conflict with it are modified by it. The facts, however, demonstrated the prisoner’s guilt. If the charge had slopped short of the house-breaking with intent to steal, it would have been sufficient, and there is nothing in that part of it calculated to mislead the jury to the prejudice of the prisoner. The conduct of the prisoner after he was arrested, his feigned suffering to throw parties having him in custody off their guard, show conclusively that he fully understood the situation. He had, we have no doubt, armed himself to kill, if it became necessary to complete the felony he had
'¥e see no reason to disturb the verdict, and the judgment is affirmed.
Dissenting Opinion
dissents.
The judgment of the court is, that the prisoner be remanded to the jail of this county; that he' be -delivered by the sheriff of this county to the sheriff of Shelby county, who will,' on Friday, the 20th day of July, 1883, between the. hours of 10 o’clock A. M., and 4 o’clock P. M., within the jail of said last named county, or within the enclosed yard of said jail, or within an enclosure erected for the purpose adjacent to the prison, as provided by law, on a gallows, privately hang the prisoner by the neck until he is dead.
The enclosure to be higher than the gallows, or so constructed as to exclude the view of persons outside thereof: Acts 1883, p. 139.