"You carry your gun to defend yourself."

GRAINGER v. THE STATE.

Jackson, March, 1830.

[Grainger v. State, 13 Tenn. (5 Yer.) 459 (1830). NOTE: This decision concerns self-defense. The following note [462.1] appears in the 1903 republication in Tennessee Reports.]

[Court case obtained from the Constitution Society]

Homicide--Fear of bodily harm--Grade of offence. If a timid, cowardly man, much alarmed, in imminent danger of a violent and instant assault, and cut off from the chances of probable assistance, as a result of fear kill the man from whom the danger is apprehended, and the jury believe that the defendant was in danger of great bodily harm from the deceased, or thought himself so, then the killing would be in self defence; and if the defendant thought the deceased intended to commit a battery upon him less violent, to prevent which he killed him, the killing would be manslaughter. [See Copeland v. State, 7 Hum. 477; Morgan v. State, 3 Sneed, 480; Rippy v. State, 2 Head, 219; Williams v. State, 3 Heisk. 393, 395, the last three citing this case.](p.459)

In this case the plaintiff in error was indicted in the circuit court of Henry county for the murder of -- Broach, was tried, convicted, and moved for a new trial on several grounds. His motion was overruled, and, sentence of death being passed upon him, he appealed in error to this court. The bill of exceptions shows the following facts, viz.: On the 9th of July, 1829, Broach, the deceased, and Henson were at Norwood's. Late in the evening Grainger came there and had his gun with him, which he generally carried, being a hunter. Broach and Henson were drinking cordial; Broach asked Grainger to drink with them; he replied he did not drink cordial, but would drink whiskey, and called for an half pint. Broach and Henson drank three half pints of cordial, and Grainger the half pint of whiskey. All this time Broach and Grainger seemed friendly. Grainger was setting off for home; Henson asked him to wait for Broach; Grainger replied he knew Broach, that he would not go till he chose, and declined waiting for him. Henson went into the house and requested Broach to go; he then returned, and he and Grainger set off together, leaving Broach at Norwood's. Henson was on foot and Grainger riding. The latter invited Henson to get up behind him, which he did. About three-eighths of a mile from Norwood's, Broach overtook them, riding at a fast gait. He immediately (p.460)commenced a quarrel with Grainger by charging him with having spoken disrespectfully of him, and that he had held his negroes till the children of Grainger had whipped them. Grainger denied the charges, said he had not said anything about Broach, or held his negroes, as charged. Broach said, "You are a liar, and if you deny it I'll knock you off your horse." Grainger still denied the charges. Broach rode up to him and struck him a violent blow on the breast. Grainger turned his horse suddenly away, and rode a short distance apart from Broach, saying to witness, Henson, "Take notice, I will make him pay for it." The quarrel and ill language continued for about five-eighths of a mile further, when they came to the corner of Rainey's fence, about forty yards from the house. Grainger threw his leg over his horse's neck and lighted on the ground, turned his horse to the fence, when Henson also alighted. At this moment Broach also alighted from his horse; Grainger threw his bridle over a rail, crossed the fence and walked towards the house, saying to Henson, "You are in cahoot with Broach." Henson said he had nothing against Grainger, who replied, "I don't know that you have." The house stood some ten yards inside of the line of fence, and forty yards in advance of where the parties alighted. Grainger walked inside; Broach and Henson outside. Opposite the house there was a gap. Rainey, his wife, and two other women were awakened from their sleep by the violent quarreling. The first Rainey heard was the defendant crying, "Rainey! Rainey!" like one afraid and calling for help. The women got up and looked through a crack of the cabin; Grainger was standing two or three yards from the wall, Broach advancing upon him, having passed through the gap. Grainger said to him, "I will shoot you if you follow me." Broach replied, "I am not afraid of your shooting; damn you, you would not shoot a cat; shoot!" Defendant said, "I have a mind to shoot you." Broach said, "Here I stand, shoot!" Defendant fired and killed (p.461)Broach. Broach was eighteen or twenty feet from Grainger when the gun fired. The witness, Elizabeth Forbes, could not see Broach when he was shot, because he was in the shadow of a tree; but Henson, who was sitting on the fence in the gap, a few yards off, could see Broach, who advanced directly on Grainger without stopping, and, whilst advancing, was shot. Henson also proves that Grainger said, when he first crossed the fence, "If Broach don't let me alone I will shoot him." Broach said, "You carry your gun to defend yourself." Grainger replied, "I do not."

Catron, J.*, delivered the opinion of the court.

The bill of exceptions shows that much stress, on the trial, was laid upon the blow given by Broach to Grainger, to reduce the killing to manslaughter; that Grainger's passions had not cooled. He never had any passion; he was much alarmed, and with good cause. A man was on his horse behind him; he could not get away. Henson proves he did not pretend to prevent Broach from whipping Grainger, who believed, and most probably rightfully, that Henson was in "cahoot" with Broach. It was Henson's duty to have protected Grainger, or got off from behind him and left him free to escape from Broach.

Grainger used all the means in his power to escape from an overbearing bully. He was shuddering with fear, and his last hope of protection was defeated when Rainey's door continued closed against him and Rainey did not come to his relief. He shot only to protect his person from threatened violence, and that great. It was certain. Henson sat quietly on the fence; the women and Rainey did not open the door; they were, no doubt, afraid of Broach, who displayed the traits of a reckless bully, and would have attacked Grainger the moment he reached him, as well in the house as out of it. It behooved (p.462)Rainey not to permit the attack in a cabin, amongst women and children, in the dark. He did right not to open the door. From Henson no assistance could be hoped. The women saw him quietly sitting on the fence, which, when Broach crossed, he helped himself over by putting his hand on the shoulder of Henson. These are the facts as presented by the record before us.

Was there malice prepense in this case of homicide, so as to exclude the benefit of clergy, within the 23 Henry VIII, ch. 1? Did Grainger display a cold, deliberate and wicked conduct? a heart lost to all social order, and fatally bent on mischief? It can not be believed. He behaved like a timid, cowardly man; was much alarmed, in imminent danger of a violent and instant assault and battery, and was cut off from the chances of probable assistance. That the act was the result of fear hardly admits of doubt. It is equally certain to our minds that Broach only designed to commit a trespass and battery upon the body of Grainger, without intending to kill him. If the jury had believed that Grainger was in danger of great bodily harm from Broach, or thought himself so, then the killing would have been in self-defence. But if he thought Broach intended to commit a battery upon him less violent, to prevent which he killed Broach, it was manslaughter. 1. Hawk. P. C. ch. 28, sec. 23; 1 East C. L. 272. The judgment will be reversed, and the cause remanded for another trial.
Judgment reversed.

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[462.1] Note.--This is a leading case in our state on the subject of homicide occasioned by fear of bodily harm. The facts and the law are so blended in the opinion as to leave the principle of the decisions in some obscurity. The comments in subsequent cases have been rather upon the points as abstracted by the original reporter, or by Mr. Meigs in his digest, than upon an analysis by the judges, except in Williams v. State, 3 Heisk. 393, where Nicholson, C. J., quotes the exact language of Judge Catron. Under these circumstances, while I have made a head-note myself, I think it advisable to retain, in this note, the original head-notes, and to add Mr. Meigs' analysis.
Mr. Yerger's abstracts were as follows:

"If a man, though in no great danger of serious bodily harm, through fear, alarm or cowardice, kill another under the impression that great bodily injury is about to be inflicted upon him, it is neither manslaughter nor murder, but self-defence.

"If a man be in great danger of bodily harm, or thinks himself so, and kill another, it will be a killing in self-defence.

"But if from the facts it appears he only believed that a violent assault and battery, without endangering his life, or inflicting great bodily harm, was intended, it is manslaughter."

Mr. Meigs gives us the following, Dig. § 668, subs. 1 and 2:

"Homicide--Excusable. A homicide committed by a person who is, or thinks himself, in great bodily harm from the deceased, is self-defence. If committed to prevent an ordinary battery, it is manslaughter.

"Same--Manslaughter. A homicide committed by a man in fear of violent and instant assault and battery from the deceased, and cut off from the chances of probable assistance by being refused admittance into a house to which he had retreated from his assailant, is not murder, but manslaughter."--Ed.

* JOHN CATRON, later became an Associate Justice of the Supreme Court of United States. He was present at the U.S. Circuit Court case when the following Charge to the Grand Jury was delivered:

United States Circuit Court,

DISTRICT OF MISSOURI,

SPECIAL JULY TERM, 1861.

PRESENT:

HON. JOHN CATRON,

An Associate Justice of Supreme Court of United States.

HON. ROB'T W. WELLS,

District Judge of United States for Western District of Missouri.

HON. SAMUEL TREAT,

District Judge of United States for Eastern District of Missouri.

CHARGE TO THE GRAND JURY

BY THE COURT,

JULY 10, 1861.

ST. LOUIS:

PRINTED AT THE DEMOCRAT BOOK AND JOB OFFICE

1861.

"TO THE GRAND JURY...."

"...A brief reference to some of the offences of which you have cognizance, and a succinct statement of the law concerning them, may aid your investigations, and serve for your guidance:

"The Constitution and laws of the United States "are the supreme law of the land," anything in the Constitution or laws of any State to the contrary, notwithstanding." Their supremacy is thus declared in express terms: "Whatever conflicts therewith has no operative or obligatory force. Allegiance to the United States, and loyalty to the United States Constitution and laws, are the paramount duty of every citizen. Within their legitimate sphere, they command the obedience of all, and no State Constitution or statute can absolve any one therefrom...."

"...Inasmuch as the Constitution provides a peaceable and regular mode whereby it or the U. S. laws may be amended, there can be no other rightful mode of effecting that end known either to the Constitution or law. As it is both the right and duty of every citizen to become fully informed upon all governmental affairs, so as to discharge his many political obligations intelligently at the ballot-box, and in other legitimate ways; and the freedom of the press and of speech are guaranteed to him for that as well as other essential purposes; and as the right of the people peaceably to assemble and petition for the redress of grievances, and to keep and bear arms, cannot be lawfully abridged or infringed, it is evident that an assemblage for the mere purpose of procuring peaceable redress of supposed grievances cannot be treasonable; nor can a free and full discussion of the acts of public men or public measures, whether such discussion be in private conversations, public meetings or the press; nor can a military gathering when assembled for no purpose or design of interfering, by force or intimidation, with the lawful functions of the government or of its constituted authorities, or of preventing the execution of any law, or of extorting its alteration or repeal, or of overthrowing the lawful supremacy of the United States in any State of Territory...."