Woodruff v. State

Decision Date02 July 1932
Citation51 S.W.2d 843,164 Tenn. 530
PartiesWOODRUFF et al. v. STATE.
CourtTennessee Supreme Court

Appeal from Criminal Court, Davidson County; Chester K. Hart, Judge.

Horace Woodruff, Marion Cox, and Morton Smith were convicted of murder in the first degree, and they bring error.


J. D B. DeBow, of Nashville, for plaintiff in error Woodruff.

E. D Jackson and W. L. Schram, both of Nashville, for plaintiff in error Cox.

A. D Tanner, of Nashville, for plaintiff in error Smith.

The Attorney General, for the State.


The three plaintiffs in error above named were jointly indicted in the criminal court of Davidson county for the murder of M. T. Mulvihill. On their joint trial they were found guilty by a jury of murder in the first degree, and the punishment of each of them was fixed in the verdict at death by electrocution. Judgment was rendered in accord with the verdict, from which the plaintiffs in error have prosecuted an appeal in the nature of a writ of error to this court.

No controverted questions of fact are presented by the record. There is no conflict in the evidence with regard to any material fact. The fact of the homicide, and that it was committed under circumstances amounting to murder in the first degree, is abundantly proven by eyewitnesses. The participation of all three plaintiffs in error is shown by the uncontradicted testimony of Morton Smith, corroborated as to each of his codefendants, Woodruff and Cox, by the written confession of each.

The inquiry on appeal is therefore directed to two questions: (1) Whether the uncontradicted evidence establishes the guilt of each of the plaintiffs in error of the degree of murder found by the jury; and (2) whether the verdict was reached at a trial in which the constitutional rights of the plaintiffs in error to a fair and impartial trial were properly safeguarded and protected.

Mulvihill, a policeman of the city of Nashville, was shot to death by Woodruff, while acting in the line of his duty, endeavoring to prevent a robbery at a store located at the corner of Clifton road and Twenty-Eighth avenue, in the city of Nashville. Notified that the robbery was in progress, Mulvihill and Cook, also a policeman, approached the store with pistols in hand. Mulvihill received a charge of shot in his breast from a sawed-off shotgun, fired by Woodruff, as he stepped on the porch of the store, and fell back to the ground. He died before he could be moved. He probably did not see his assailant, who was in the shadow. Cook exchanged shots with one McGuire, who was lurking against the east wall of the store, and inflicted on him a wound from the effects of which he subsequently died. Woodruff then wounded Cook with the second fire from the shotgun, and, having thus disabled both policemen, Woodruff and McGuire left the scene in the automobile in which they had come.

Before the first shot was fired by Woodruff, Morton Smith had fled on foot, eluding the pursuit of Policeman Cook, and was about a block distant when Mulvihill was shot.

Cox stated in his written confession that he was the last of the three to leave the store, and that he "pulled on his gun" at one of the policemen but it would not shoot. He was unable to state how far he was from the store when the first shot was fired by Woodruff.

It is shown by the testimony of Smith, corroborated by the confessions of Woodruff and Cox, that the robbery of the occupants of the store at Twenty-Eighth avenue and Clifton road was not the result of a chance encounter of the four active participants. On the previous day they had agreed to embark together on a career of robbery under the leadership of Woodruff. On the night in question they first possessed themselves of an automobile by robbery, at the point of a pistol, and then, having reinforced their arsenal of three pistols with the sawed-off shotgun, they proceeded together to the robbery of a store in East Nashville, and thence to the store where Mulvihill was killed. In each of the two store robberies the procedure was the same. Woodruff remained outside with the shotgun; McGuire rifled the cash drawer; while Cox and Smith covered the occupants of the store with pistols.

It is the contention of Cox and Smith that, since the killing of Mulvihill occurred while the four were making their get-away, Cox and Smith having in fact left the premises, the motive was personal to Woodruff, in aid of his own escape, and that the killing was not in furtherance of the conspiracy to commit the crime of robbery.

This contention presents primarily a question of fact, and the evidence is not controverted. Mulvihill was killed on the premises. He was on the porch of the store when he was shot, and he had come to prevent the consummation of the robbery. McGuire, who had rifled the cash register and who, presumably, was in possession of the fruits of the conspiracy, was still present, and the killing of Mulvihill was necessary to enable him, as well as Woodruff, to leave. There is no escape from the conclusion that it was for this purpose that the four had agreed Woodruff should take his position outside the store with the shotgun. We hold, as a finding of fact, that the shooting of Mulvihill is shown by the evidence to have been the direct result of the conspiracy to rob the store, contemplated by the four conspirators, and done in direct furtherance of its purposes.

Because the shooting was done on the premises which were the scene of the robbery, the authority mainly relied upon by Cox and Smith, People v. Marwig, 227 N.Y. 382, 125 N.E. 535, 22 A. L. R. 845, is not applicable to the facts of the case before us.

It is the settled rule of law here, as well as elsewhere, that a killing by one of a party, in the pursuit of an unlawful purpose involving the use of violence in which all are engaged, is the act of all who had come to engage in the unlawful purpose. In such case the law presumes they had come "to make good their designs against opposition." Moody v. State, 46 Tenn. (6 Cold.) 299; Reagan v. State, 155 Tenn. 400, 293 S.W. 755.

In the light of this general rule, we think it is of no material consequence that Cox and Smith were able to escape without shooting, while McGuire and Woodruff, cornered, shot their way out. The criminal responsibility of Cox and Smith for the murder done by their companion and coconspirator rests upon a more tangible and reasonable basis than mere presence, and something more than pedal agility is required to exculpate them from the wrong to which their unlawful conduct and mental co-operation had contributed. The brief of the state quotes from People v. Nichols, 230 N.Y. 221, 129 N.E. 883: "A conspirator cannot escape responsibility for an act which is the natural result of a criminal scheme which he has helped to devise and carry forward because, as the result either of fear or even of a better motive, he concludes to run away at the very instant when the act in question is about to be committed and when the transaction which immediately begets it has actually been commenced, as in this case." We think this statement inherently reasonable and its truth self-evident.

Without material contradiction or conflict, either as to the evidence or applicable rules of law, each of the plaintiffs in error is shown by the record to be guilty of the crime of murder committed in the perpetration of robbery, which is murder in the first degree, as found by the jury.

Each of the plaintiffs in error moved the trial court for a severance and a trial separate from that of his codefendants. Grounds of the motion were that the state was in possession of written confessions of guilt of each of them, containing statements competent only as against the individual confessor, and also that Woodruff had entered a plea of guilty, which made the issue as to him only one of the degree of his guilt and the proper punishment to be imposed.

On an appeal in the nature of a writ of error, this court does not directly review the exercise of discretion of the trial judge in overruling these motions. But, the motion for a severance having been made and overruled, the inquiry here is whether the joint trial developed prejudice to one or more of the plaintiffs in error, so that the interests of justice require the setting aside of the verdict and the granting of a new trial. Railroad Co. v. Johnson, 114 Tenn. 632, 88 S.W. 169.

Prejudice to the rights of the plaintiffs in error from the fact that they were jointly tried and convicted could only have resulted if a bona fide defense had been interposed for them. Since no evidence tending to refute the charge of guilt was offered by any of them, none of them was embarrassed in his defense by the fact that the others were being jointly tried. It may have been to the interest of each that he be tried alone, but the orders of the court are molded to protect rights, and not merely the interests, of persons accused of crime. The state, as well as the persons accused, is entitled to have its rights protected, and, when several persons are charged jointly with a single crime, we think the state is entitled to have the fact of guilt determined and punishment assessed in a single trial, unless to do so would unfairly prejudice the rights of the defendants. No such prejudice appears when the crime charged is the result of a clearly proven conspiracy against which no defense is offered in evidence.

Plaintiffs in error contend that it was error for the trial judge to admit in evidence against them proof of the robberies committed by them prior to that in the commission of which Mulvihill was killed.

These separate offenses were committed in furtherance of the conspiracy which was formed on the previous day. The...

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16 cases
  • State v. Bayless
    • United States
    • Ohio Supreme Court
    • November 24, 1976
    ...406, 8 N.Y.S.2d 83, 85. See, also, Fisher v. United States (1946), 328 U.S. 463, 66 S.Ct. 1318, 90 L.Ed. 1382; Woodruff v. State (1932), 164 Tenn. 530, 547, 51 S.W.2d 843. The psychiatric expert witnesses at the mitigation hearing defined the term as basically synonymous with mental Althoug......
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    ...a separate trial York's confession would have been competent as against Taylor, it being made in the latter's presence. Woodruff v. State, 164 Tenn. 530, 51 S.W.2d 843; Stallard v. State, 187 Tenn. 418, 428, 215 S.W.2d Finally it is insisted that the court committed error in not fully charg......
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    • July 17, 1948
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