Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1869-07-11

which. Chamberlin, another police
man, came up, and Fenton said, Gar
rest that man." Chamberlin started
toward Calvin, who drew his pistol
and Chamberlin did not take him. Mrs
Jones testified that two or three men
were struggling with FentOn, and got
him down i'm 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
andSOme one said, "Arrest that man" "
Calvin waved his pistol, and said the
first man that attempted to arrest
him was a dead man. Chamberlin,
/! the policeman, testified that he came
up while FentOn was engaged in the
scufile with COnnell. Calvin had his
pistol in his hand, and said that "any
| man that arrested that man, III
| 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 Calvin
kicked ut his head, but just then his
head was thrown or pressed down,
and the blow went over his head.
Before the scuffie was done, Chamber
lin came up, and fentOn said arrest
that man." Chamberlip started to
arrest Calvin, who had his pistol out
| and presented il. Chamberlin had no
pistol, and did not make the arrest.
Calvin pushed Chamberlin back, and
said if he attempted to arrest him he
would be a dead man. Chambcrlin
reached for his pistol, and Calvin said
to him, " if you go for your pistol you
are a dead man." 1t further appears
that Fcntoh having got clear from
COnnell and McGrain, started
across the street towards Gal
vim, who had tnrned TO 90 away,
saying to Calvin as he did so, "
want YOU Calvin, who had his pis-
tOl in his hand, stopped, turned and
presented his pistol at FehtOn who
was advancing toward him, and said,
" Don't you come any nearer, or I'll
shoot YOU" FentOn continued to adj
vance, having his hand i'm his bosom,
but no pistol drawn. At Galvin'S
threat ne stopped, and Calvin said,
" You go for your pistol and III shoot
yOu.o Fcnton drew his pistol, and he
was cooking it, Calvin fired at him,
the ball grazing his person, and kill
ing a boy behind him. Calvin fired
one or two shots, and then FentOn
fired Each fired several shots, and
by one Of those fired by Calvin Fen
ton was killed. Two Of defendants
witnesses testified that EentOn fired
first, hut their testimony is contra
dicted by such an amount Of testi-
mOny as to be incredible.
The evidence clearly shows that at
the time Of The killing, Fentou was
attempting to arrest the accused. If
Fentoh had no right to make the ar
rest under the circumstances proved
in this case, he was guilty of an assault
which the accused had the right
to resist. And though the accused in
such case had no right, unless he had
room to believe that he was in imme-
date 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 Of
fense to the grade Of manS,aughter.
, Whar. Amer. Or. Law. sec. G6l; 1884
7; Tackett vs.. State, s &cr. 800. The
doctrine has SOE1etimcS been stated
without Qualification, that homicide
cOI1nitted in the act of resistance to
an illegal arrest will be manslaughter
and not murder. Whcre-nO adequate
prOvOcatiOn exists, or where no pas
sion or heat Of blood results. the will
ful slayer cannot eXtenuatC his cool,
deliberate act of killing, by the pre-
tence that he had the right to he in 9
passion. The law does not arbitrarily
reduce to tho grade Of Gdanslaughter
every hOiqiciie Which may BE com-
mitted in the act OF such resistance,
without reference to tho presence or /
absence of actual malice and delibera-
ton. An unlawful arrest made bona
.fde under color of legal authority, is
but trespass. and like other tres
passes, 1t may or may not in the par
ticular instance constitute an agGTs,-
waited prOvCcCtiGn; and the Ilere fact
ghat the officer Or citizen attempting
the arrest, and being slain in 90 doing,
has exceeded his authority, does not
necessarily reduce the killing to man
slaughter if the slayer had no reason
to believe himself in imminent dan
ger of life or great bodily harm; and
if the homicide were i'm fact rCrpe-
trated, not in passion OF sudden heat, !
upon the proV0catiCn Of the arrest, |
but with cool, Deliberate malice and
premeditatiGD, ] Arch. Or. Pr. and
Pl, Ed. sJ5; Whar. Amer. Law Uf
Homicide, 81. But the law does not
allow that q lawrul arrest is a prOv0cd,-
ton TO passion and heat CT blood |
And if the Officer baq the right to
mako tte arrest, and was so engaged,
using no more force than was reason
ably necessary IN aecGainIIiishino #
thea the KILLING 6f him by the accused
w"n,,, "t.,, De 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 man
slaughter, The hepr0visiOns of the Code
IN regard to arrests are substantially
in atiirmance of the common law, and
are as follows:
9 Sec. 5037. An officer may, without
Il warrant, arrest a person. first, for
public offense committed, or a breach
of the peace threatened in his pres
encp.
"Sec. 50Js. When arrestingla person
the officer shall inform him of his
authority, and the cause of his arrest,
and exhibit his warrant, if he have
one, except when he is in the actual
commission of the offense, or is pur-
sued Immediately after an escape.
" Sec. 5040. If, after notice of the in
tention 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 act of
1865, under which the police force of
Memphis was appointed, tits provided
" that the several members of the po-
lice force shall have power and au-
thority TO Immediately arrest, with
out warrant, and to take into Gus
tOdy any person who shall commit
or threaten or attempt to commit, in
the presence of such member or with
in his view, any breach of the peace,
or offenSe directly prohibited by the
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 ofpersons and property, enforce
every law relating TO the suppression
and punishment of crime, or to dis
orderly persons, etc. The Code pro-
hibits the carrying Of deadly weapons.
Sec. 1853. "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 anV DerSOn y SEQ -dz57 HNo