Drennan v. People

• Citation: 10 Mich. 169
• Court: Supreme Court of Michigan
• Decision Date: 07 May 1861
• Parties: John Drennan v. The People

10 Mich. 169

John Drennan v. The People

Supreme Court of Michigan

May 7, 1861

Heard April 16, 1861 [Syllabus Material]

Error to the Recorder's Court of Detroit.

The plaintiff in error was convicted on an information for assaulting one John Gore, with intent to murder.

On the trial, John Gore testified as follows: "I am a constable of the First ward; I know defendant; on the 9th of February 1861, at about 1 o'clock in the morning, I arrested defendant at a house kept by one Hill, on Gratiot street; I told him I was an officer; had my star on; he knew I was an officer--a constable; I told him I wanted him to go with me he asked what for; I told him I had a warrant for him; he said he would not go unless I showed him the warrant; I then took hold of him by the collar with my right hand, and took him out of doors; when we got outside the door he took a revolver out of his pocket and cocked it; I heard the click, and said to McKay, 'be careful, he's got a pistol;' I then took hold of his right arm with my left hand, and letting go the hold of my right hand on his collar seized the pistol around the barrel; I endeavored to take the pistol away from defendant and immediately the pistol snapped, the hammer came down upon my hand between my thumb and forefinger; it caught upon the skin of my hand, between the forefinger and thumb; the pistol was pointed about at the middle of my body, when I took hold of it; the pistol had four barrels, all loaded; I had no warrant for the arrest of defendant; I knew one had been issued against him, and was in the hands of officer Van Stan; the charge against him was stealing a pair of gloves of the value of twelve shillings; I was present in the justice's office when the complaint was made and the warrant issued; the warrant was given to me, and I afterwards gave it to Van Stan, in the justice's office; he (Drennan) said nothing to me before drawing his pistol; he said, in the house, he would not go till I showed him my papers."

James McKay testified: "I am a deputy sheriff; know Gore and Drennan; Gore and I were returning home from jail on the 9th February; we went into Hill's place on Gratiot street; we sat down by the stove, and in about five minutes Drennan and Penwell came in; Gore said, 'how d'ye do, Johnny?' speaking to defendant; 'I want you, I have got a warrant for you;' defendant replied, 'show me the warrant;' Gore refused to do so, saying he wasn't obliged to show it; Gore told him he must come with him; took hold of defendant and jerked him to the door; I followed them out and closed the door; Gore said, 'look out, he's got a pistol;' saw Gore seize his hand; I took hold of his left shoulder and arm; he scuffled a little, and we threw him down; just as I pulled him down Gore held up a revolver; I heard no noise either of cocking or pulling off the pistol; then we took him to jail; Gore there showed me the mark made by the hammer of the pistol striking on his hand; Drennan was pretty drunk."

John Van Stan testified: "I am an officer in this city. There was a warrant out against Drennan on February 9th, for stealing a pair of gloves, issued by Justice Fecht. The warrant was in my possession; I arrested the person jointly charged with Drennan, on the same night; afterwards gave the warrant to Gore."

The prisoner called Wm. Penwell, who testified: "I was with Drennan on the night in question, and had been for some four or five hours before we reached Hill's place. I saw him have a pistol just before we got to Hill's; a dog rushed out at us, and Drennan said he had been troubled enough with dogs, and wouldn't be any more; he then drew his pistol to shoot the dog; we then went into Hill's; Gore said, 'halloo, Johnny, I want you.' Drennan refused to go with him unless he would show his warrant. Then Gore took hold of Drennan and took him out of doors. I followed in less than a minute, and when I got out Gore and McKay had Drennan by the collar taking him off to jail; Drennan was pretty drunk."

The case being submitted on this evidence, the Recorder charged the jury, among other things, as follows: "If you find that the prisoner drew the pistol and cocked it with an intention to kill Gore, but was prevented from so doing, then he is guilty as charged. If Gore knew that there was a warrant out for the arrest of the prisoner, he, as an officer, had a legal right to arrest him, and had the prisoner intentionally killed him, it would have been murder."

The plaintiff in error being convicted, the case was brought to this court for review on exceptions to this charge.

New trial granted.

H.M. & W.E. Cheever, for plaintiff in error, argued that the offense charged upon Drennan in the warrant issued by Justice Fecht being a misdemeanor only, the arrest by Gore was unlawful: 1 Chit. Cr. L., 20; 1 Hale 587; 1 East. P. C., 303; 1 Russ. on Cr., 599, 601; 10 Ad. & El., 358. And consequently if death had ensued from the assault made by him, Drennan would have been guilty of manslaughter only, and not murder: 1 Russ. on Cr., 596, 599; 1 Chit. Cr. L., 18; 7 C. & P., 244; Ibid., 775; Ibid., 817; 1 Mood. C. C., 132; Ibid., 80; Ibid., 394; 1 C. & M., 180; 3 Yerg. 392; 2 Wheeler C. C., 495.

In this case the violence of Drennan was plainly provoked by the irregular and unlawful conduct of Gore.

C. Upson, Attorney-General, for the people:

The offense in question is a felony at the common law: Whart. Cr. L., 1; 4 Bl. Com., 99; 1 Hale P. C., 530, 587. The statute has not made it a misdemeanor. It only defines statute felonies, and leaves petit larceny untouched, and to remain in force in respect to all questions controlled by the common law: 3 Hill 255; 3 Park. Cr. R., 249. And the constable was authorized to make the arrest. 5 Bing. 363.

Christiancy, J. Manning, J., Campbell, J., Martin, Ch. J. concurred.

OPINION

Christiancy J.:

Is larceny to the amount of one dollar and fifty cents (in resisting the arrest for which the assault was made) an offense for which the constable might arrest the offender under the circumstances of this case, without having the warrant in his possession? This is the main question in the case. It is admitted that, if the larceny charged was a felony, the constable under the circumstances had a right to make the arrest, and that, had the assault made by the prisoner in resisting the arrest, resulted in killing the constable, such killing would have been murder, unless the conduct of the officer in making the arrest was such as in some measure to excuse the defendant.

But it is insisted by the counsel for the prisoner that larceny to an amount less than twenty-five dollars, though a felony at common law, is not such under our statutes, because not punishable with death or by imprisonment in the State prison.

The statute relied upon is section 18, chapter 161, Revised Statutes of 1846 (Comp. L., § 5954): "The term felony when used in this title, or in any other statute, shall be construed to mean an offense for which the offender, on conviction, shall be liable by law to be punished with death, or by imprisonment in the State prison."

This provision is but a legislative definition of the term felony as used in certain provisions of the statute; and its effect can only be known by reference to those provisions where the term is used. Of itself, without such reference, it has no effect upon any offense whatever. Nor can it be reasonably supposed it was intended to extend to those provisions of the statutes (of which there are two cases at least in the same revision--Ch. 154, §§ 35 and 36; Comp. Laws, §§ 5779 and 5780), which in defining the offense have expressly designated it as a felony, and made it punishable in the State prison; for in such case no such general definition was required. Nor is there any more reason to infer that, where a particular provision of the same act (for the whole revision was passed as one act) has expressly designated a particular statute offense as a misdemeanor, this definition was intended to convert it into a felony, though the provision defining the offense has made it punishable by imprisonment in the State prison. See a case of this kind, R. S., Ch. 19, § 5 (Comp. L., § 5917).

We must therefore understand this provision as intended to apply only to those provisions where neither the particular offense nor its grade is otherwise indicated than by the use of the term felony, and where, therefore, the definition became necessary, as it was not intended to be used merely in the common law sense.

This definition became necessary to fix the meaning of the term in the following provisions, contained in the revision: Sections 1, 2, 3, 4 and 5 of chapter 161 (Comp. L., §§ 5937 to 5941), in reference to aiders and abettors, accessories, etc., and the mode of their prosecution; section 28, chapter 153 of R. S. (Comp. L., § 5738), in reference to assaults with intent to commit a "felony;" sections 10, 12, 13 and 14, chapter 154 of R. S. (Comp. L., §§ 5754, 5756, 5757 and 5758), in reference to breaking and entering houses and other buildings with intent to commit a "felony;" section 19, chapter 164 of R.S. (Comp. L., § 6028), in reference to inspection of indictments for "felony;" section 14, chapter 165 of R.S. (Comp. L., § 6081), giving the right of separate trials where two or more are jointly indicted "for felony;" and section 9 of the same chapter (Comp. L., § 6076), requiring the personal presence on trial of a party indicted for "felony."

It was for the purpose of fixing the meaning of the term in these and similar cases that this definition was given; for a clear apprehension of the full force and effect of the definition we have only to substitute the definition itself for the term defined, as the two must...