Rowan v. State
| Citation | 16 McCanless 224,369 S.W.2d 543,212 Tenn. 224 |
| Parties | , 212 Tenn. 224 Sue ROWAN, alias, Sutton, Plaintiff in Error, v. STATE of Tennessee, Defendant in Error. |
| Decision Date | 15 July 1963 |
| Court | Supreme Court of Tennessee |
Hubert D. Patty, Maryville, for plaintiff in error.
George F. McCanless, Atty. Gen., Thomas E. Fox, Asst. Atty. Gen., Nashville, for defendant in error.
The plaintiff in error, defendant, was indicted upon a charge that on the 21st day of April, 1962, she did unlawfully, wilfully, feloniously, deliberately, premeditatedly, maliciously, and of her malice aforethought, assault Randall Humphrey with a gun with intent at the time to kill and murder the said Randall Humphrey.
Upon the trial of the case the jury found her guilty of an assault with intent to commit voluntary manslaughter and sentenced her to serve not more than one year and one day in the State Penitentiary.
The State has agreed that the sentence should be modified so as to sentence her to the minimum fixed by law of not less than one year in the State Penitentiary.
The defendant made a motion for a new trial in due course and upon consideration thereof the same was overruled and from that action the plaintiff in error has perfected an appeal, and assigns several errors.
Assignment of Error number one is to the effect that the defendant should have been given a continuance because of her physical condition, and Assignment number two is to the effect that the District Attorney General conducted himself improperly in his argument of the case, both of which have been abandoned because the record in nowise supports such assignments.
Likewise, no argument is made in support of the insistence that the evidence preponderates against the verdict and in favor of the innocence of the accused. The jury having determined the facts and resolved all conflicts in the evidence in favor of the State, as indicated by their verdict, this assignment of error is not well taken. Hargrove v. State, 199 Tenn. 25, 281 S.W.2d 692; Cooper v. State, 123 Tenn. 37, 138 S.W. 826.
Before disposing of the other assignments we think it necessary to make a brief statement of the facts as they appear to us from our examination of the record.
The prosecutor Humphrey and his friend, Kincaid, were returning from a trip to the mountains to their respective homes in Blount County when they stopped at an unnamed place on the highway, where dancing is one source of entertainment. At this place they met the defendant and a girl friend of hers, and from there they went to another place known as '411' to get some sandwiches. They then went to the home of the girl friend. From there Humphrey took Kincaid and the defendant to a cabin out on the Walland Highway, which the witness recalled had the name 'Willow Groves' where they were left to spend the night.
On the following morning Humphrey went back and picked them up and there was some misunderstanding about some money which the defendant claimed was taken from her pocketbook by Kincaid. At that time she took a pistol from her pocketbook, apparently intending to use it, but the same was taken away from her by Kincaid and the bullets extracted therefrom. The defendant then accused Humphrey of taking her money, which he denied.
Thereafter, the three of them got in Humphrey's car and came back into the City of Maryville and stopped near a taxicab station. They then became separated and the two men went to a restaurant to eat breakfast. They had been there for a short time only when the defendant came in and sat down beside Kincaid, and apparently had breakfast also.
After the three of them had finished they started to leave the place by way of the back door, Humphrey leading the way, the defendant in the second place, and Kincaid bringing up the rear. Humphrey had stepped only a few feet out of the building when he heard a shot and then felt it hit him in the back. He said:
Humphrey said that it was a .22 caliber pistol and that when he turned around to see who had shot him that she, the defendant, had it, the gun, in her hand and that Kincaid took it out of her hand.
Humphrey said that the defendant was not drinking at that time, but that she had been drinking the night before. We imagine that all four of them had been drinking. Humphrey remained in the hospital for about a week.
Humphrey was asked if he knew why she shot him and he replied:
The prosecutor admitted that he had been convicted of larceny and when asked how many times, he said, 'I don't know'. He also had been convicted of public drunkenness on several occasions.
When pressed on cross-examination about whether or not he actually knew who shot him, he made this statement:
This must have seemed to the jury, as it seems to us, a rather strong circumstance that the defendant shot the prosecutor.
Kincaid testified that he spent the night with the defendant in the cabin aforesaid, and that on the following morning they engaged in an argument about some money, and then about a pistol which she was supposed to have had in her pocketbook. She finally took the pistol from her pocketbook and said to Kincaid, 'I want my money'. The pistol was taken away from her by Kincaid once and given back to her, and when taken away the second time, the shells were extracted therefrom and given back to her.
He then relates their return trip to Maryville and the fact that they had breakfast at the Sandwich Shop, and corroborates the testimony of Humphrey about leaving the restaurant through the back door, Humphrey leading the way with the defendant second, and Kincaid last. He said that he heard shots from the gun and then saw that Sue had the gun in her hand. He took it away from her and then took Humphrey to the hospital.
About two days after the shooting, the defendant was arrested by Policemen Boring and Phillips. They found her on Brick Mill Road in a honeysuckle patch, and at that time she had a large butcher knife in her hand. Just why she was in the honeysuckle patch is not revealed by the record.
The Chief of Police of the City of Maryville testified that he talked to the defendant upon her arrest and she denied shooting Humphrey, but she admitted an argument had arisen with reference to some money and she accused Humphrey of taking it from her pocketbook.
She admitted buying shells for the gun, but said that she had given the gun to Kincaid a night or two before the shooting.
The defendant did not testify in her own behalf and did not offer any witnesses.
The defendant claims that the court erred in refusing to grant her motion for a directed verdict made at the close of all the proof.
The fact that the court overruled the motion for a new trial is sufficient answer to this assignment. If the trial judge had been of the opinion that the jury had reached the wrong conclusion he would have, in the proper exercise of his discretion, granted a new trial. We have said many times in prior cases that this Court has never and does not now approve the directing of verdicts of acquittal in criminal cases. See Yelton v. State, 210 Tenn. ----, 365 S.W.2d 877, 880, and other cases.
It is alleged that the State failed to prove that the offense was committed within the statute of limitations. The proof on this point in the record clearly shows that the offense was committed during April of this year and 'this year' from the whole record means the year 1962. Therefore, it is clearly within the statutory limit of prosecution of the offense charged.
It is also assigned as error that the State prosecuted the defendant under T.C.A. § 39-604, when, in fact, the prosecution should have been under T.C.A. § 39-610.
T.C.A. § 39-604 provides, in part, that:
'Whoever shall feloniously and with malice aforethought assault any person, with intent to commit murder in the first degree, * * * shall, on conviction, be imprisoned in the penitentiary not less than three (3) years nor more than twenty-one (21) years.'
An indictment for an assault with intent to commit murder in the first degree includes the lower grades of the offense, namely, assault or assault with intent to commit murder in the second degree, voluntary manslaughter, assault and battery, and simple assault. Smith v. State, 70 Tenn. 614; Lawless v. State, 72 Tenn. 173; Morton v. State, 91 Tenn. 437, 19 S.W. 225, and other cases.
The judge charged the jury that if it found the defendant guilty of assault with intent to commit voluntary manslaughter...
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