Grove v. State

• Decision Date: 07 February 1963
• Citation: 15 McCanless 414,365 S.W.2d 292,211 Tenn. 414
• Parties: , 211 Tenn. 414 Willie GROVE v. STATE of Tennessee.
• Court: Tennessee Supreme Court

Page 292

365 S.W.2d 292

15 McCanless 414, 211 Tenn. 414

Willie GROVE v. STATE of Tennessee.

Supreme Court of Tennessee.

Feb. 7, 1963.

Rehearing Denied March 6, 1963.

Hugh Stanton, Memphis, for plaintiff in error.

George F. McCanless, Atty. Gen., Thos. E. Fox, Asst. Atty. Gen., Nashville, for defendant in error.

PREWITT, Chief Justice.

The defendant below, Willie Grove, was found guilty of murder in the second degree and was sentenced to serve not more than ten years in the State Prison.

Defendant relies upon the defense that his confession was coercively obtained, and that the evidence preponderates against the verdict.

Further that the defendant was arrested upon the theory that he committed a robbery on May 1, 1961, and the evidence of the latter offense should not have been admitted on the ground that circumstances of arrest are always relevant.

The deceased, Wilbur R. Smith, was working at the Peter Pan Pantry, a grocery in Memphis, on the night of May 1, 1961, about 11:30 p. m., when he was shot with a .38 caliber pistol below the right eye. He died July 19, 1961. The wound was inflicted upon the victim after his assailant announced 'this is a stick up.'

Ray Smith, uncle of the deceased, was present at the time, and he stated that the defendant admitted the offense; that he was a colored man and wore a light brown jacket; and that he ran after firing the shot without proceeding with the robbery.

The victim was carried to the Methodist Hospital and said to his wife, 'I believe this is it,' and then proceeded to relate to her details regarding the event and corborated the statements of his uncle.

The defendant admitted to the police officers that he committed the offense, as well as to other people.

In the defendant's confession, he stated that he went to the grocery and became frightened and admitted making the confession, but contended that it was made as a result of coercion.

The record reveals a clear case of murder in the first degree, and we are at a loss to know that he was only convicted of second degree murder.

All assignments are overruled and the judgment of the lower court is affirmed.

ON PETITION TO REHEAR.

PER CURIAM.

In this petition to rehear Grove complains that the original opinion did not mention Assignment No. 3 which is in the following words:

'The verdict of the jury is erroneous and is not supported by the evidence or by the law in that there is no question about the proof or theory offered by the State in that if the position of the State is substantiated the defendant would be guilty of murder in the first degree; if the said position is not substantiated, the defendant should be acquitted. The proof does not support a conviction of murder in the second degree. Murder in the second degree is a substantive felony, has its peculiar characteristics and elements and the proof of the record in the instant case does not have the requisite elements to sustain a verdict of murder in the second degree; the jury repudiated the State's theory that the defendant was guilty of murder perpetrated in the course of the robbery, therefore, the verdict cannot stand and the verdict for murder in the second degree should be set aside.'

It is not error for the Court to fail to consider in its opinion each and every error assigned. To do so would, on occasions, cause the opinion to be entirely too long. We do, however, consider all assignments in the preparation of the final opinion.

We now, however, respond to the above assignment.

T.C.A. § 40-2518 provides that:

'It shall be the duty of all judges charging juries in cases of criminal prosecutions for any felony wherein two (2) or more grades or classes of offense may be included in the indictment, to charge the jury as to all of the law of each offense included in the indictment, without any request on the part of the defendant to do so.'

Under an indictment for robbery, the defendant may be convicted of an attempt to commit a felony. Laury v. State, 187 Tenn. 391, 215 S.W.2d 797.

Also in the case of Rushing v. State, 196 Tenn. 515, 268 S.W.2d 563, the...