Grindstaff v. State
| Decision Date | 27 November 1937 |
| Citation | 110 S.W.2d 309 |
| Parties | GRINDSTAFF v. STATE. |
| Court | Tennessee Supreme Court |
D. M. Guinn and Thomas E. Mitchell, both of Johnson City, for plaintiff in error.
Nat Tipton, Asst. Atty. Gen., for the State.
Plaintiff in error, Claude Grindstaff, hereinafter referred to as defendant, was indicted for unlawfully carrying a pistol, with the intention of going armed. Upon his trial, he was found guilty, and his punishment fixed at a fine of $50 and six months' imprisonment in the county work-house.
Defendant has appealed to this court and assigned errors.
It is complained that there is no evidence to support the verdict of the jury, and that the evidence preponderates in favor of the innocence of defendant.
The record discloses that on November 13, 1935, defendant, while standing in a public highway, shot and killed Love Wilson with a pistol. The fact that defendant had and used a pistol on the occasion in question is not controverted. One of the witnesses for the State was asked:
The scene of the shooting was at a point in the highway about 40 yards below the home of deceased. Defendant did not testify in the case. It appears that defendant was tried for the murder of Love Wilson and found guilty of involuntary manslaughter, with punishment fixed at imprisonment in the state penitentiary for one year.
Defendant relies on the case of Heaton v. State, 130 Tenn. 163, 169 S.W. 750, where it was held that a person who, to protect himself against an unlawful assault in his office and sleeping apartment, under circumstances entitling him to exercise the right of self-defense, picked up a pistol and fired two shots at an intruder, did not "carry" the pistol within the meaning of the statute (Shannon's Code, § 6641). The defendant, Heaton, had the legal right, as was pointed out by the court, to keep the pistol in his residence, or place of business, for his protection (Osborne v. State, 115 Tenn. 717, 718, 92 S.W. 853, 5 Ann.Cas. 797), and could lawfully use it, at such place, for his protection against a violent and deadly assault by a lawless intruder. In the instant case, the defendant, Grindstaff, was, as heretofore stated, out on a public highway with a pistol in his hands. The jury was warranted in finding from the evidence that he drew this pistol from under his coat. This, however, is unimportant, for, unquestionably, he was carrying the pistol.
It is insisted that there was a merger of the offense of carrying the pistol into the offense of manslaughter committed in its use. In Heaton v. State, supra, the question of merger was discussed but not decided, because not necessary to the decision of the case. In State v. Parker, 13 Lea (81 Tenn.) 225, the court said, in the course of its opinion, that "although he [Parker] could not be convicted for a separate offense for having the pistol at the time he did the shooting, yet he might be properly convicted for the previous carrying before he was discovered and confronted by the officer whom he shot." The portion of the language above italicized was declared in Heaton v. State, supra, to be dictum.
Section 11758 of the Code is as follows:
"Upon an indictment for any offense consisting of different degrees, the jury may find the defendant not guilty of the degree charged in the indictment and guilty of any degree inferior thereto, or of an attempt to commit the offense; and the defendant may also be found guilty of any offense the commission of which is necessarily included in that with which he is charged, whether it be a felony or misdemeanor."
At common law, where the same criminal act constitutes both a felony and a misdemeanor, the misdemeanor is merged in the felony and the latter only is punishable. 16 C.J. 59; Wharton's Criminal Law (11th Ed.) § 39.
In Hall v. State, 75 Tenn....
To continue reading
Request your trial
-
McGlothlin v. State
...in a charge of rape, as is the offense of attempt to commit rape); Jones v. State, 200 Tenn. 429, 292 S.W.2d 713; Grindstaff v. State, 172 Tenn. 77, 110 S.W.2d 309 (unlawfully carrying a pistol is not a lesser included offense of murder because it is not necessarily included in such a charg......
-
Russell v. State
...the Court affirmed convictions for disturbing a religious assembly and for assault with intent to commit murder. In Grindstaff v. State, 172 Tenn. 77, 110 S.W.2d 309, and in Arterburn v. State, 216 Tenn. 240, 391 S.W.2d 648, the Court held that conviction for involuntary manslaughter was no......
-
Bartlett v. State
...murder; and under such an indictment the defendant may be convicted of involuntary manslaughter. In the case of Grindstaff v. State, 172 Tenn. 77, 110 S.W.2d 309 it was 'The common-law doctrine of merger is abolished in Tennessee by section 11758 of the Code (section 5222 of the Code of 185......
-
State v. Hudson
...of armed robbery and assault with intent to commit murder in the second degree by means of using a firearm. Grindstaff v. State, 172 Tenn. 77, 81, 110 S.W.2d 309, 310 (1937); Cole v. State, supra. The statutory definition of the offense of a dangerous weapon 1 requires proof of a fact which......