Smith v. State

500 S.W.2d 625, 1973 Tenn. Crim. App. LEXIS 254

• Court: Court of Criminal Appeals of Tennessee
• Decided: January 16, 1973
• Status: Published

Opinions

OPINION

O’BRIEN, Judge.

The one assignment of error made on this appeal from a jury verdict and conviction for murder in the first degree with imprisonment fixed at twenty years and one day in the Penitentiary challenges the rejection of a requested instruction to the jury submitted by defendant, which was as follows:

“Where the defendant has suspicion of extramarital conduct between his wife and deceased for several months and had received word of this conduct approximately two hours before the homicide, defendant had adequate provocation for aroused passions so great as to obscure his reason and such conclusion was not rebutted that the defendant engaged in casual and calm conversation with another just prior to the homicide.”

The requested instruction is not included in the Bill of Exceptions and were it not mentioned therein we could not consider it. Koehn v. Hooper, 193 Tenn. 417, 246 S.W.2d 68; Fonte v. State, 213 Tenn. 204, 373 S.W.2d 445; Schweizer v. State, 217 Tenn. 569, 399 S.W.2d 743. However, it appears in the Bill of Exceptions that the special request was submitted and refused by the trial judge, and we elect to dispose of the matter on its merits.

The language of the requested charge has been taken from the opinion in Whitsett v. State, 201 Tenn. 317, 299 S.W.2d 2. Whitsett did not involve a requested instruction to the jury and we need mention it no further except to say that the facts in this case in no way fit into the mold of the circumstances upon which the decision in that case was based.

The trial court gave a full and adequate charge on all of the various degrees of homicide and the necessary elements of each which the jury would be required to find in order to sustain a conviction. The charge included a full definition of premeditation as well as that sudden impulse of passion, and adequate provocation, which would reduce the charge from one of murder in the first degree to a lesser degree of homicide and also a detailed account of the theory upon which the defense was based.

The State’s brief correctly cites authority to the effect that where the matter contained in a special request is fully covered in the Judge’s general charge to the jury by instructions which were correct, it is not error for the trial court to refuse the request. The only factual basis for the requested instruction was the defendant’s uncorroborated testimony in regard to his suspicion of his wife’s infidelity. The general charge given by the trial court was full, fair and complete. The assignment must be overruled. Bostick v. State, 210 Tenn. 620, 360 S.W.2d 472; Freshwater v. State, 2 Tenn.Cr.App. 314, 453 S.W.2d 446; and Dezarne v. State, Tenn.Crim. App., 470 S.W.2d 25.

The judgment of the trial court is affirmed.

OLIVER, J., concurs.