Womack v. State

• Decision Date: 30 April 1870
• Citation: Womack v. State, 47 Tenn. 508 (Tenn. 1870)
• Parties: Mart Womack v. The State.
• Court: Tennessee Supreme Court

47 Tenn. 508

Mart Womack

v.The State.

Supreme Court of Tennessee.

April Term, 1870.

FROM TIPTON.

This cause was tried at the October Term, 1869, when there was a verdict and judgment against the defendant, and an appeal by him to this Court, Judge GEORGE W. REEVES presiding.

SMITH & WOOD, for Plaintiff in error.

W. G. REEVES, Attorney-general pro tem., for the State.

GEORGE ANDREWS, J., delivered the opinion of the Court.

This is an indictment for murder. The indictment charges that Mart Womack did unlawfully, etc., “make an assault in and upon one William Williams and one Thomas Massey, with pistol, with intent them, the said William Williams and the said Thomas Massey to kill and murder in the first degree; and then and there, with the pistol aforesaid, the said William Williams and the said Thomas Massey, the said Mart Womack did, unlawfully, willfully, deliberately, premeditatedly, feloniously, and with malice aforethought, kill and murder in the first degree, against,” etc.

The defendant, by his counsel, m??ved to quash the indictment; which motion being overruled, the defendant pleaded not guilty, and was put upon his trial.

The evidence shows, and the fact is not disputed, that the defendant killed both Williams and Massey by shooting with a pistol, and upon the same occasion. It is shown that an affray took place between Williams and Womack, in the course of which Womack fired two shots at Williams, one of which proved fatal, and Williams fired one shot at Womack. Massey, while the firing was going on, or instantly thereafter, rushed at Womack and seized and held him, seizing the hand in which he held the pistol, and telling him not to shoot any more. Massey and Womack struggled together for a short time, the latter seeking to break loose; and in the struggle, Womack's pistol was either accidentally or purposely discharged, and Massey was thereby killed.

There is nothing tending to show that the shot by which Massey was killed was intended for Williams.

The defendant moved that the State be required to elect for which killing it would proceed to try upon the indictment; which motion the Court refused. It is not stated at what stage in the trial this motion was made; but it was probably at the close of the testimony.

The jury returned a verdict that the defendant “is guilty of murder, in the second degree, of the said Wm. Williams and Thomas Massey, in manner and form as charged in the indictment,” and he was sentenced to imprisonment for the term of ten years. He moved for new trial and in arrest of judgment; and these motions being overruled, an appeal in error was granted to this Court.

The motion to quash the indictment was properly overruled. The only defect claimed to be found in the indictment, is, that it charges the defendant, in the same count, with the murder of two persons--constituting, as is said, a charge of two distinct felonies.

Two totally distinct and separate felonies can not be charged in the same count of the indictment; and if, upon the face of the indictment, it appears that the defendant is charged, in the same count, with the killing of two persons, as distinct transactions, the indictment would be quashed.

But a single felonious act may result in the death of two individuals; and though, in such a case, the offender might be indicted for the murder of one only, he may be indicted for a single offense of murder in the act of slaying both. So, a single act of larceny may consist in the stealing of one or many articles of personal property, and the stealing of all may be charged as one offense in a single count: 1 Bishop Cr. Pr., secs. 192, 201. The same reasons may exist for charging, in a single count, the killing of several persons, as for including in one count for larceny the whole of a number of articles stolen.

In the present case, the indictment charges the killing of both Williams and Massey as one felonious act; and we can not see, from the averments made, that the killing of both did not occur by a single act, and upon a single felonious intent.

But, though the indictment is not, in this respect, open to objection, the testimony given upon the trial showed that the killing of Williams and of Massey could not, in fact, have constituted a single offense of...