130 Tenn. 1 | Tenn. | 1914
delivered the opinion of the Court.
The indictment was in one count, and charged that on a day (not named) in March, 1913, B. B. McCom-mon did willfully, unlawfully, feloniously, maliciously,
The first and second assignments of error raise the question that, while the indictment was in one count and charged one offense, to wit, an assault with intent to commit the crime of murder in the first degree upon the body of Esther Derry, yet the defendant was in fact tried upon two separate, distinct, and independent offenses, and the jury were charged by the court in respect of two separate, distinct, and independent offenses, wherefore it is insisted for plaintiff in error that there was a variance between the indictment and the evidence introduced upon the trial of the cause,' that the verdict of the jury and judgment of the court cannot be sustained as determining his guilt of either offense, because it is uncertain on which of the
To the foregoing points, made hy plaintiff in error, the State replies, in substance, that the two phases of the evidence, which plaintiff in error terms distinct and separate offenses are,, in fact and in law, hut separate parts of a single offense. The two phases of the evidence, while indeed separate acts of the plaintiff in error in point of time, are so connected hy a single intent and purpose to do murder in the first degree upon the body of Esther Derry, and so nearly related or closely connected in point of time, as to amount in law to a single and continuing transaction, pursuant to and prompted by single criminal intent. The legal principle relied on by the State is well expressed by a learned author as follows (Wharton on Criminal Law, voL 1 [11th Ed.] p. 48, section 34):
“No matter how long an offense may take in its perpetration, it continues but one offense. . . . The distinction is this: When the impulse is single, but one indictment lies, no matter how long the action may continue. If successive impulses are separately given, even though all unite in swelling a common stream of action, separate indictments lie.”
See, also, the cases cited in notes to Hughes v. Commonwealth, 31 L. R. A. (N. S.), 693, and State v. Sampson, 42 L. R. A. (N. S.), 907:
Another illustration of the same principle is stated thus:
And again:
“The principle upon which the decisions in these cases rest is that two or more separate offenses, which are committed at the same time and are parts of a single continuing criminal act, inspired by the same criminal intent, which is essential to each offense, are susceptible to but one punishment. The most familiar illustration of the rule is that burglary with intent to commit larceny and larceny committed at the same time and as one continued act do not subject the perpetrator to two punishments, one for the burglary and another for the larceny, because the same criminal intent is indispensable to each, and they are each parts of a continuing criminal act.” Stevens v. McClaughry, 207 Fed., 18, 125 C. C. A., 102.
Looking to the transcript, we see that, on the trial of the cause, the court allowed evidence to be introduced on behalf of the State tending to show a. willful, felonious, and premeditated assault by the plaintiff in error upon the body of Esther Derry, with intent to kill and murder by means of pointing at her and dis
No motion was made by plaintiff in error 'at any time during the trial of the cause that the State be required to elect upon which of these two phases of the evidence it would ask for a conviction.' On the contrary, he saw fit to meet the State’s evidence by his own, which tended to show, by way of defense to what he now insists was the first assault, that he fired at Esther Derry only after she had fired four or five shots at him, and therefore in his proper and necessary self-defense ; that, after firing the first shot, he attempted to reload the barrel of his gun which had been fired, and to that end unbreeched the gun, the same being a double-barrelled shotgun, and placed a cartridge in the barrel which had just been fired, but on account of some defect in the mechanism of the gun he was un
Upon the evidence disclosing tbe respective theories of tbe State and of tbe defendant as above set out, tbe court charged tbe law as tbe same applied to tbe first shot and to tbe blow with tbe gun barrels. Tbe law was fairly charged as it applied to tbe theory of tbe
“Now, if the proof shows beyond a reasonable doubt that the defendant did commit an unlawful assault at either of said times or in either of the ways mentioned, the defendant would be guilty of some one of the offenses herein defined, and if the offense was committed in Madison county and State of Tennessee, and before the finding of the indictment, you should convict him. ’ ’
In this state of the record, it is insisted on behalf of plaintiff in error that the doctrine of the case of Holt v. State, 107 Tenn., (23 Pickle), 540, 64 S. W., 473, applies. In that case Holt appealed from a judgment of conviction for unlawfully carrying a pistol. The State introduced one witness whose testimony tended to show the commission of that offense at one time and place, and other witnesses whose testimony tended to show a like breach of the law at another time and place. At the conclusion of the whole evidence the defendant moved the court to require the State to elect which of the two imputed infractions the jury should try him for; but the court overruled the motion, and the entire case was submitted to the jury for a verdict. This court held that the action of the trial judge was erroneous, and reversed and remanded the cause for a new trial.
That case and the case at bar are not analogous, if the State’s insistence in the present case be sound. In the Holt Case the evidence of the State tended tc
It is true, as said by this court in Holt v. State, supra, that:
“No authorities need be cited for the proposition that a defendant cannot be legally tried for two violations of the criminal law, when he has been impleaded for but one. That proposition is fundamental and axiomatic.”
Section 7077 of Shannon’s Code provides that the statement of the facts constituting the offense in the indictment shall be in ordinary and concise language, without prolixity or repetition. And by section 7080 of the same- Code, it is provided:
“The act or omission charged as the offense shall be stated with such degree of certainty as to enable the court to pronounce judgment upon a conviction, according to the right of the case.”
Article 1, section 8, of the Constitution of the State provides:
“No man shall be taken or imprisoned, or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or in any manner destroyed or deprived of his life, liberty or property, but by the judgment of his peers or the law of the land. ’ ’
And section 9 of the same article provides:
‘ ‘ That in all criminal prosecutions, the accused hath the right to be heard by himself and his counsel, to demand the nature and cause of the accusation against him,” etc.
It is difficult to see that the plaintiff in error was deprived of any right he possessed under the fore
The statute defining the offense for which plaintiff in error was indicted is section 6467 of Shannon’s Code, and reads as follows:
“Whoever shall feloniously and with malice aforethought-assault any person, with intent to commit murder in the first degree, or shall administer or attempt to give any poison or potion for that purpose, though death shall not ensue, shall, on conviction, be imprisoned in the penitentiary, not less than three nor more than twenty-one years.”
In Slate v. Ladd, 2 Swan (32 Tenn.), 228, Judge Car-uthers, delivering the opinion of the court, said:
“It is a general rule that where an offense is created, or where it is defined, and its punishments enlarged by statute, an indictment, setting forth the crime in the words of the statute, is sufficient, and indeed the safest and preferable mode of description.
“The kind of weapon is not needful for notice to defendant, because, in the cases I have put, he would not only be aided in making out his defense, but would be actually misled by the indictment. The author to which we have referred (136) says: ‘There is a par-ticularlarity required in an indictment for murder that it would be ridciulous to account for and justify. ’ And we might add, as to the effect of this particularity, except so far as it is necessary for the ends of proper defense, by a substantial description of the essentials of the crime imputed, it only tends to facilitate the escape of offenders from the just punishment of their, crimes, and should not be favored. In times past, the
In the brief for plaintiff in error we are referred to Pearce v. State, 1 Sneed (33 Tenn.), 65, 60 Am. Dec. 135; Cornell v. State, 7 Baxt. (66 Tenn.), 520; Womack v. State, 7 Cold. (47 Tenn.), 510; Phillipps v. State, 85 Tenn. (1 Pickle), 551, 3 S. W., 434; Kannon v. State, 10 Lea (78 Tenn.), 390; Fowler v. State, 3 Heisk. (50 Tenn.), 154; but we find in these cases no conflict with the views we have above expressed.
We are also cited to the case of Lucius Witt v. State, 6 Cold. (46 Tenn.), 8, where it is said:
“Where the indictment charges the killing to have been done with a particular weapon, it is not permitted to prove that it was done with a weapon of a totally diverse character. ‘Thus, evidence of a dagger wili support the averment of a knife; but the averment of a knife will not support the averment of a pistol.’ ”
The above quotation does not support the insistence of the plaintiff in error in the present case. The indictment here does not aver the assault to have been made by discharging the gun. The averment is merely that
By' this indictment, plaintiff in error had notice as we think that the State, on the trial of the cause, would place in evidence before the jury every use made by him of the gun as an instrument in carrying out his purpose to commit murder in the first degree upon the body of Esther Derry. The fact that the entire gun and the charge of powder and shot in one barrel thereof were employed in one part of the assault, and that only the barrels of the gun as a bludgeon were used in the other part of the assault was clearly within the knowledge of plaintiff in error, and although it is true that when the stock and barrels were broken apart the barrels were a bludgeon, and not an entire gun in the'most strict sense, yet it is absurd to say that the indictment was no notice that the State would show by its evidence both parts of the assault.
'By the third assignment of error it is insisted that the court erred in overruling plaintiff in error ’s motion in arrest of judgment. This insistence is based on the view that the indictment is insufficient:
“Because it fails to describe the weapon, how used, or that the gun was loaded, and it is not sufficient to fully inform the plaintiff in error of the nature and cause of the accusation against him.”
To sustain this assignment of error, we are referred to the case of Bass v. State, 6 Baxt. (65 Tenn.), 588. What we have already said practically disposes of this assignment of error, but we add Bass v. State, supra, was overruled by this court in the case of Hobbs v. State, 121 Tenn. (13 Cates), 413, 118 S. W., 262, 17 Ann. Cas., 177, and the grounds of the motion in arrest were not specifically stated in the motion in the trial court. See subsection 5, rule 14, 126 Tenn. 723, 160 S. W. xi.
There is no merit in the fourth assignment of error, which complains of the admission of the following testimony of Esther Derry over the objection of the plaintiff in error, and found at page 24 of the transcript:
“After the engagement, Ralph McCommon had carnal knowledge of me, and the intercourse was tolerably frequent. I then became pregnant by Ralph McCom-mon. It was in the month of May that I ascertained that I was pregnant.
It does not appear that the matter complained of in this assignment was properly called to the attention of the trial judge by the motion for a new trial. It therefore results that, under the fifth subdivision of the fourteenth rule of this court in respect of the assignment of errors, the fourth assignment of error must be overruled.
The fifth and last assignment of error is based mainly on the insistence that the evidence greatly preponderates against the verdict of the jury. Bad blood had been engendered between the plaintiff in error and his family and Esther Derry and her father and brother, on account of a claim made by her to the effect that Ralph McCommon, son of the plaintiff in error, had, under promise of marriage, seduced her and became the father of her illegitimate child. The conduct of Esther D'erry and her father and brother had been such as to arouse reasonable apprehension on the part of plaintiff in error that it was the purpose of Esther Derry to force Ralph McCommon to marry her, and in the event of failure that violence would be done by the Derrys to Ralph McCommon. To avoid the threatened danger to the son of plaintiff in error, he had been sent away from home. Several times prior to the day of the tragedy, Esther Derry had been dis
Esther Derry testifies that she went to Sam Black’s field, and was sitting on the bank of the ditch, trying to recognize a boy who was plowing in the field with plaintiff in error, some 500 or 600 yards from the place where she was sitting; that she wanted to see Ralph, becanse he had promised to marry her, and she wanted him to fulfill his promise; that she was dressed in a blue calico dress with- a man’s coat on, had a white scarf on her head, and had a pistol; that she saw the plaintiff in error when he left his plowing, and the next time she saw him he was coming toward her up the gully where she was sitting; that he came up close to the wire fence; that she was still sitting at that time; that he told her to shoot him, these were his first words. She said: “I do not want to shoot you, Mr. McCom-mon. I have nothing against you.” He then said: “Damn you, if you don’t shoot me, I will shoot you.” He then raised his gun up and pointed it toward her, whereupon she shot at him five times. She says that she was standing while she was shooting; that she was rattled and frightened; that he shot her in the left breast and left side, and she then ran from him; that she saw Sam Black and his people plowing, and ran toward them, and while she was running: he shot her again with the shotgun and hit her in the left side;
There is much more of her testimony, and there is also in the transcript the evidence of Sam Black, and of his son and daughter. Without going into the evidence of the witnesses last named, it suffices to say that, upon the entire proof in the cause, there was clear conflict as to the truth. It was the peculiar province of the jury to determine that conflict. They have determined it in favor of the truth of the evidence of Esther Derry, and we do not think that the evidence as a whole preponderates against the verdict of the jury.
Under a subdivision of the fifth assignment of error, it is insisted that the verdict of the jury was contrary to the law; that the Attorney-General and his associates made improper and illegal arguments on the trial of the cause, and that the verdict of the jury was not the true verdict of the whole jury.
It is unnecessary to enter into a discussion of these matters. We have' examined each and all of them, and find them to be without merit.
There is no error in the record, except that, as this offense is shown by the proof to have been committed