Irving v. State

• Citation: 47 So. 518,92 Miss. 662
• Court: Mississippi Supreme Court
• Decision Date: 24 November 1908
• Parties: VICTOR IRVING v. STATE OF MISSISSIPPI

47 So. 518

92 Miss. 662

VICTOR IRVING v. STATE OF MISSISSIPPI

Supreme Court of Mississippi

November 24, 1908

March 1908

FROM the circuit court of Attala county, HON. OLIVER A. LUCKETT Special Judge.

Irving appellant, a negro, was indicted, tried, convicted and sentenced for burglary and appealed to the supreme court.

The crime was committed at one o'clock at night. A searching party just after daylight on the morning of the same day followed tracks made by the bare feet of the supposed burglar to the home of defendant's mother, and one of the party Weeks, asked the mother at what time the night before Victor (the accused) reached home. The mother responded "a few minutes after one o'clock," and she further stated in conversation with Weeks, that Victor came home on foot and barefooted. This colloquy with the mother in her room was had in an ordinary conversational tone of voice; the defendant was in an adjoining room and the communicating door between the two rooms was standing open; the witnesses thought defendant must have heard what was said, for when the inquiry was made, immediately following the above statements, as to where Victor was, he responded from the adjoining room "Here I am," and then came out to where the conversation had been conducted, but nothing on the subject of his return home the night before was said after he came out.

On the trial, over defendant's objection, the court below permitted the state to prove the mother's statements by Weeks; the mother having died in the mean time. Defendant introduced several witnesses who each testified that the accused was with them on the night in question from 8 p. m. to 3 o'clock a. m., "in a crap game, at the gambling yard, back of Miller's jack lot."

Reversed and remanded.

Dodd & Dodd and McWillie & Thompson, for appellant.

The first piece of incriminating testimony counted upon by the state was wholly incompetent and the admission of it over defendant's objection is assigned for error. It consists of statements said to have been made by appellant's mother, now deceased, out of appellant's presence, to Weeks, one of a searching party, to the effect that defendant came to her house about one o'clock on the night in question walking and barefooted.

While it was affirmed by Weeks that appellant could have heard his inquiries and the mother's responses, yet it was not disputed that appellant was in another room. That appellant heard the conversation between Weeks and his mother is not shown, because, the physical surroundings were such that Week's affirmation that he heard could have been nothing more than an opinion of that witness; nor is the case aided by the fact that appellant answered the inquiry as to his whereabouts. Conversations between others should never be admitted in evidence against a defendant if there be doubt as to whether he heard them. 2 Wigmore on Evidence, § 1071; Ib. § 1072, p. 1275, par. 2, and notes. A man's failure to contradict his own mother or wife should never be used to his discredit. In this case the mother's statement that appellant reached her house at one o'clock the night before and that he came there on foot and barefooted, did not demand or require a contradiction, even if a man is sometimes required to contradict his mother except upon the assumption that he were guilty. If he were perfectly innocent of the crime and heard his mother's statement but reached her home at seven o'clock the evening before on horseback and wearing shoes he was under no obligation to make known the facts; his mother did not charge him with any crime or with any thing which naturally tended to crime and yet her unsworn statements were used to destroy an alibi testified to by several witnesses; they were also used to prove, what no witness swore to, that appellant was walking out from home barefooted the night Miller's house was broken and entered. We mention these circumstances not to show that the testimony was inadmissible (its incompetency is...