delivered the opinion of the Court.
The defendant below, Willie Grove, was found guilty of murder in the second degree and was sentenced to serve not more than ten years in the State Prison.
Defendant relies upon the defense that his confession was coercively obtained, and that the evidence preponderates against the verdict.
Further that the defendant was arrested upon the theory that he committed a robbery on May 1, 1961, and the evidence of the latter offense should not have been admitted on the ground that circumstances of arrest are always relevant.
The deceased, Wilbur R. Smith, was working at the Peter Pan Pantry, a grocery in Memphis, on the night of May 1, 1961, about 11:30 p. m., when he was shot with a .38 caliber pistol below the right eye. He died July 19, *4161961. The wound was inflicted upon the victim after his assailant announced “this is a stick up.”
Ray Smith, uncle of the deceased, was present at the time, and he stated that the defendant admitted the offense ; that he was a colored man and wore a light brown jacket; and that he ran after firing the shot without proceeding with the robbery.
The victim was carried to the Methodist Hospital and said to his wife, “I believe this is it,” and then proceeded to relate to her details regarding the event and corroborated the statements of his uncle.
The defendant admitted to the police officers that he committed the offense, as well as to other people.
In the defendant’s confession, he stated that he went to the grocery and became frightened and admitted making the confession, but contended that it was made as a result of coercion.
The record reveals a clear case of murder in the first degree, and we are at a loss to know that he was only convicted of second degree murder.
All assignments are overruled and the judgment of the lower court is affirmed.