Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1869-07-11
THE CALVIN CASE.
Opinion of the Supreme Court, de-
liVered by Judge Andrews.
Reported for the Appeal by H. Clay
King, Esq.
SUPREME CoURr,

SUPREME COURT,
BROWNSVILLE, june, 1863.
! No. 43. James Calvin vs.. State.
From the Memphis Criminal Court.
| Andrews, Judge, delivered the opinS
ion of the Court. James Calvin was
indicted for the murder of John Fen
ton, and convicted of murder i'm the
first degree, and sentenced to be hung,
from which judgment he appealed to
this Court.
1t Is claimed that the record does
Gat show that the grand jury was
! composed OF "gO0d and lawful men,"
, The record shows that the members
Of the grand jury were "duly elected,
empannelled, sworn and charged, :"
and that in our view is sufficient.
They having been elected and en-
pannelled under the direction of the
Court, it must be presumed that they
were good and lawful men, Nc
! ClUre vs.. State, | Yer. 2lj. 1t is
claimed that the Court erred in direct
/ ing the Sheriff to summon a panel Of
| fifty-seYen men for the election Of the
traverse jury including the regular
panel Of nineteen jurors, and that the
/ prisoner was entitled to have the full
panel Of fifty-seYen summoned, cX-
! Guiding the regular panel in attend
ance. There was nO error in this.
| We see no objection TO the practice.
| 1t is not prohibited, and IS in accord
/ ance with the common practice in
such cases.
| On the motion Tor new trial, the ac
! cused filed the affidavit of 4. J. Collins,
| one of the jurors who tried fhe cause,
! to the effect that though he as
| sented to the verdict of "guilty of
murder in the first degree" his judg-
ment and his conscience did not ap-
prove the verdict; that he assented in
/ consequence Of a large majority of the
jurors being in favor Of such verdict,
and because Of an earnest desire to be
discharged, and under the belief that
upon such 4 verdict the Court could
fix the punishment either by sentence
Of death or by imprisonment; that
since he has learned that the Court
dpon the verdict rendered had no
Judgment and conscience" do not ap-
prove the verdict; that he believed
and now believes, that the accused
was guilty Of one Of the GRADES of
homicide, but that hedges not approve
the verdict infiicting the highest pen
atty, rs the evidence in the ease in his
Judgment, did not and does not justify
such verdict. The Court had distinct
ly charged the jury that the punish
ment 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 diff
cult tQsee 'how-the juror should have
misunderstood the matter, The afii-
davits of two other jurors were read,
showing that the subject Of a recon-
mendatiOn to mercy was discussed by
the jury, and that they understood by
the charge, that without such recon-
mendatiOn the Court had no power to
commute the punishment, and that
Collins. though, ST first mi favor Of
such RECOMMENDATION yielded the
point and agreed TO the verdict rem
dpred. The affidaYit If Collins shows
that he agreed to the verdict of muir
! der in the first degree, SuppOsing that
IL 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. Il is not charged
that tue juror was led to assent to the
! verdict by any unfair fneans-that
! there was any fraud or misrepresenta-
/ ton, or undue influence. Collins afl-
davit is far from being consistent or
a sensible one.
If we would be justiEe,, IA any case
in permitting the affidavit OF q juror
J thai lie had misunderstood a charge of
the Oour { which appears plainly and
distinctly in the bill Of hScenfions
do not think we would be justified in
so dong IN this case. Hum. SIS.
In Crawford vs.. State, ? Yer. 60, it
was held to be ground for new ttial,
! that il was shown ny the afiidavits of
! two of the jurors that they were not
satisfied of the guilt of the prisoner,
but had as5ented 10 the verdict of
guilty, with a recommendation to
mercy, upon the belief that the Gov
ernor would certainly pardon the de-
fendant, and that there could be no
doubt of a new trial being granted. +
/ In Nelson VS., state, 1e. Hum. a1S,
the afiidavits of ffye Of the jurors were
received, showing that they were in
! duced to believe, from the arguments
Of their fell0wsjuFOFs, that if they
found verdict of guilty, with re
commentator 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 as the law then
/ stood; but the action of the
Court itself, as well as the
circumstances, led the jury to believe
| that the power existed. The Court
SAYS; ,tNNe do not think that verdict
ought TO stand when the life of a hu-
man being is involved, which has been
rendered under the influence of such
manifest miscOnception of the legal
effect of it; especially where the mis-
conceptions have been produced and
fortified by the action of the Court. y
i do not think that either of the
above cases goes far enough to justify
this Court III granting new trial upon
the affidavit produced in the present
case. And we are not disposed to ex-
tend the rule in favor of granting new
trials upon such affidavits any farther
than it has been carried by former de-
cisiOns of this Court. The main facts.
sufficiently established by the evil
dence, are as follows: On the 25tb of
| December, 1867, about u or / O'Clock
| in the day, the accused, Calvin. with
4 two other men, named respectively
Connell and McGrain, were in COM
pany in the city of Memphis. and
either Connell or Calvin, the evidence
being conflicting as to which of the
two it was, knocked down and
injured a negro man, The negro went
to seek policeman, and soon returned
with Fenton, the deceased, who was
policeman in the city Of Memphis.
then on duty and in uniform. Fer
ton endeavOred to arrest Connell, an
a severe struggle ensued, in the pr
gress of which FentOn was knocked
down in the gutter. Jones testified
that while Fenton was down Connelg