187 Tenn. 438 | Tenn. | 1948
delivered the opinion of the Court.
Defendant appeals from conviction of voluntary manslaughter and sentence to punishment at two to five years in the penitentiary for the offense.
The assignments of error present three questions:
(1) That the evidence was insufficient to support the conviction and preponderated in favor of the defendant’s plea of self-defense; (2) that the Trial Judge erred in refusing a special request tendered by the counsel for defendant; and (3) that the indictment was fatally defective in that it charged no offense under the laws of the State of Tennessee.
According to the State’s witness, Willocks, when this took place, the defendant was armed with a pistol which she was carrying either in her hand or in the pocket of the overalls which she wore. According to defendant, during the quarrel with Cutshaw, she got the pistol from the couch where she had hidden it. The evidence is conclusive that both the defendant and the deceased were drinking at the time of the occurrence. It is also clear that the defendant and the deceased struggled from the kitchen into the dining room, and that the defendant shot the deceased twice and fired a third shot which went wild into the ceiling of one of the rooms in the house.
The defendant says that she shot in her own necessary self-defense and because she was in fear of her life or great bodily harm, when the deceased ceased his physical assault upon her, and put his right hand into the
It is the exclusive province of the jury and Trial Judge to determine the credibility of the various witnesses. It is not only not our duty, but it is impossible for us to do this when, as here, the transcript of the evidence is submitted in narrative form.
After her conviction, the defendant is here under a presumption of guilt and we think the conviction was fully warranted, not only on the testimony of the defendant, herself, but on that of Leonard Willoeks and “Chuck” Martin, who testified for the State. The assignments of error which assail the sufficiency of the evidence are overruled.
The next question presented by the appeal is the refusal of the Trial Judge to charge the following special request:
“The defendant in a Criminal Trial, however degraded or debased she may be, and no matter what may be the enormity of the crime charged against her must always be presumed innocent of the crime for which she is indicted until her guilt is proved beyond a reasonable doubt.”
In his general charge, the Trial Judge had instructed the jury fully, that the accused was presumed to be innocent and was not presumed to be guilty of any offense,
Finally, it is insisted that the indictment was fatally defective because of the following ungrammatical phrases:
“. . . she the said Stella Johnson he the said Arthur Cutshaw then and there did unlawfully, feloniously, wil-fully, deliberately, premeditatedly, and of his .malice aforethought kill and murder, against the peace and dignity of the State of Tennessee.” (Italics ours.)
The' assignment of error is without merit for two reasons:
(1) There was no challenge to the indictment in the lower Court, nor action thereon by the Trial Judge. This was necessary to support the assignment of error on appeal. Palmer v. State, 121 Tenn. 465, 118 S. W. 1022; Webb v. State, 173 Tenn. 518, 121 S. W. (2d) 550; Troxell v. State, 179 Tenn. 384, 166 S. W. 2d 777.
(2) The use of the masculine pronoun for the feminine, and of the nominative for the objective case of the pronoun did not so obscure the meaning as to prejudice the rights of the defendant, and this is manifest from the fact that no objection was made to the indictment at the time it was read, and grammatical errors in the
Affirmed.