Galvin v. State
| Decision Date | 30 April 1869 |
| Citation | 46 Tenn. 283 |
| Parties | James Galvin v. The State. |
| Court | Tennessee Supreme Court |
OPINION TEXT STARTS HERE
FROM MEMPHIS.
The plaintiff in error was, at the ______ Term, 1868, of the Criminal Court, found guilty of murder in the 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 State.
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 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 such cases.
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 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 rendered.
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., 518.
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 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 Court.”
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 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. Calvin 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 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.”
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