
    Grindstaff v. State.
    
      (Knoxville,
    
    September Term, 1937.)
    Opinion filed Nov. 27, 1937.
    
      D. M. G-tjinn and Thomas E. Mitchell, both, of Johnson City, for plaintiff in error.
    Nat Tipton, Assistant Attorney-General, for the State.
   Me. Justice DeHavbn

delivered the opinion of the Court.

■ Plaintiff in error, Claude Grindstaff, hereinafter referred to ás 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 workhouse. •

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:

“Qu Did you see him get.it out from under his coat? A. I saw him reach for it..
“Q. Tie pulled it out? A. The next thing I saw he had it shooting at Love.”

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 ag’ainst 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, section 6641). The defendant, Hea-ton, 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, thquestion 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 he convicted for a separate offense for having the pistol at the time he- did the sho'oting, yet he might be properly convicted for the\previous carrying before he was discovered and confronted by tbe officer wbom be shot. ’ ’ Tbe portion of tbe language above italicized was declared in Heaton v. State, supra, to be dictum.

Section 11758 of tbe Code is as follows:

“Upon an indictment for any offense consisting* of different degrees, tbe .jury may find tbe defendant not guilty of tbe degree charged in tbe indictment and guilty of any degree inferior thereto, or of an attempt to commit tbe offense; and tbe defendant may also be found guilty of any offense tbe commission of which is necessarily included in that with which be is charged, whether' it be a felony or misdemeanor.”

At common law, where tbe same criminal act constitutes both a felony and a misdemeanor, tbe misdemeanor is merged in tbe felony and tbe latter only is punishable. 16 C. J. 59; Wharton’s Criminal Law (11 Ed.), section 39.

In Hall v. State, 75 Tenn. (7 Lea.), 685, 686; the court said:

“At common law, there could be no conviction for a misdemeanor on an indictment for a felony: 1 Bisb. Crim. Law, section 804. This' rule was based on the fact that persons indicted for misdemeanor bad at common law certain advantages at tbe trial not permitted in felony, such as tbe right to defend by counsel, and to have a copy of tbe indictment and a special jury. It was a plain dictate of justice that a person should not be deprived of these rights by tbe charge of a graver crime in tbe indictment. In modern times, tbe discrimination is in favor of those indicted for tbe higher offense, and tbe reason for tbe old rule no longer exists. Tbe courts of several of tbe States have, consequently, held that a conviction for a misdemeanor may be bad under an indictment for a felony which, includes it. Other States have changed the rule by statute. Our Code contains such a provision, and authorizes the jury to acquit the defendant of the crime charged in the indictment, and find him guilty not only of a lower offense, whether it he a felony or a misdemeanor, when the indictment is for an offense including different degrees, hut of an offense, the commission of which is necessarily included in that with which he [is] charged: Code, section 5222.”

The common-law doctrine of merger is abolished' in Tennessee hy section 11758 of the Code (section 5222 of the Code of 1858). This section is very broad and comprehensive in its terms and authorizes the conviction of the accused of any offense which is embraced in that charged in the indictment. Lancaster v. State, 144 Tenn., 21, 229 S. W., 150. By the express terms of this statute, the accused may 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.”

Defendant, under the indictment charging him with the murder of Love Wilson, could not have been convicted of the offense of carrying a pistol. The unlawful carrying of dangerous weapons (Code, section 11007) is an offense of a different nature from any of the degrees of offense for which conviction may be had under an indictment charging murder, and is not one necessarily included in such charge. Defendant’s conviction for the killing of Love Wilson did not bar a prosecution for carrying the pistol with which the killing was done.

In 16 Corpus Juris, page 275, it is stated:

‘ ‘ Conviction of assault with intent to murder does not bar a prosecution ior carrying a pistol, although both offenses were committed on the same occasion and were parts of the same transaction; and a conviction of the latter is not a bar to a prosecution for the former offense. A conviction for an assault with a weapon is not a bar to a subsequent prosecution for carrying a concealed weapon; and a conviction for carrying prohibited weapons is not a bar to a subsequent prosecution for assault and battery. An acquittal on the charge of unlawfully carrying brass knucks is not a bar to a subsequent prosecution for an assault with knuckles.”

In an annotation to be found in 31 L. R. A. (N. S.), 732, a number of authorities are set forth and show that the overwhelming weight of authority is to the effect that a prosecution for an assault with a deadly weapon is not a bar to the prosecution for the carrying of such deadly weapon.

We have considered all of the .assignments of error made by defendant and find them to be without merit. The result is that the judgment of the trial court must be affirmed.  