Ivey v. State
| Decision Date | 19 November 1928 |
| Docket Number | 27120 |
| Citation | 119 So. 507,154 Miss. 60 |
| Court | Mississippi Supreme Court |
| Parties | IVEY v. STATE |
Suggestion of Error Overruled January 21, 1929.
APPEAL from circuit court of Jefferson county, HON R. L. CORBAN, Judge.
Davis Ivey was convicted of murder, and he appeals. Affirmed.
Case affirmed.
R. L. Corban, Jr., of Fayette, for appellant.
The judge has the power to pretermit court term.
Ex parte Stanfield, 53 So. 538.
Manner in which juries shall be drawn.
Section 2180 of Hem. Code of 1917; Section 2186 of Hem. Miss. Code of 1917; Section 2211 of Hem. Code of 1917; Section 2209 of Hem. Code of 1917; Cook v. State, 43 So. 618; Shepherd v. State, 42 So. 544; Ellis v State, 107 So. 757.
Defendant had right to continuance on ground of absence of witness.
Dobbs v. State, 51 So. 915; Cade v. State, 50 So. 555; Knox v. State, 52 So. 695.
Truly & Truly, of Fayette, for appellant.
The judge has the power to pretermit court term.
Ex parte Caples, 58 Miss. 358; Section 745, Hemingway's Code of 1927; Griffith, "Mississippi Chancery Practice," chapter IV; Section 989, Code of 1906.
The insufficiency of the evidence.
Guest v. State, 52 So. 211; Patty v. State, 88 So. 498; Hawthorne v. State, 58 Miss. 778; Section 1017, Hemingway's 1927 Code; Section 1016, Hemingway's 1927 Code; Jones v. State, 45 So. 145; Johnson v. State, 30 So. 39; Pigott v. State, 65 So. 583; Hall v. State, 91 So. 397; Section 1016, Hemingway's 1927 Code; Williams v. State, 84 So. 8; Williams v. State, 90 So. 705; Long v. State, 52 Miss. 23.
Service is not complete until a return has been made. Defendant has a right to show that the return is false and this right is taken away if there is no return in the record.
32 Cyc. 497; Section 3928, Code of 1906, Hemingway's 1927 Code, section 3139; Section 3945, Code of 1906, Hemingway's 1927 Code, section 3156; Shaffer v. State, 1 Howard 238, 1 Morris State Cases 65.
Who shall serve copy of indictment and list of special venire.
Sections 483 to 494, inclusive, of Hemingway's 1927 Code; Section 3941, Code of 1906, Hemingway's 1927 Code, section 3152.
The judge has the power to pretermit court term.
11 Cyc. 734; Section 989, Code of 1906 Hemingway's 1927 Code, section 745; Ex parte Stanfield, 53 So. 538; Anderson v. McInnis et al., 99 Miss. 826, 56 So. 170; Williams et al. v. Simon, 135 Miss. 562, 99 So. 433; Section 989, Code of 1906, Hemingway's 1927 Code, section 745; Section 1016, Code of 1906, Hemingway's 1927 Code, section 772; McCarthy v. State, 56 Miss. 294; Wilson v. Town of Handsboro, 99 Miss. 252, 54 So. 845, Ann. Cas. 1913E, 345; Arbour v. Y. & M. V. R. R. Co., 94 Miss. 714, 54 So. 158; Williams et al. v. Simon, 135 Miss. 562, 99 So. 433; Gordon v. State, 95 Miss. 543, 49 So. 609.
L. T. Kennedy and W. A. Geisenberger, both of Natchez, for appellant.
When terms of court are to be held.
Section 158 of Constitution of 1890; Section 679, Code of 1906, section 462, Hemingway's Code of 1927.
The proceedings in court at a time when a holding of a general term is unauthorized and when no special term has been called are void.
Arbor v. Yazoo & Mississippi Valley Railroad Co., 54 So. 158; 11 Cyc. 728, and notes.
The power granted a judge or chancellor, who fails to attend any term of his court, to authorize the clerk or sheriff to adjourn the court to a later date, is exhausted when once exercised, and, should the judge or chancellor, fall to attend the adjourned term on the day appointed for the commencement thereof, the term lapsed and cannot be adjourned on his order to a later date.
Williams et al. v. Simon, 135 Miss. 562, 99 So. 433; State v. Bristow, 21 Mont. 578.
Manner in which juries shall be drawn.
Section 2696, Mississippi Code 1906; Sec. 2342, Hemingway's Code 1927; Section 2688, Mississippi Code 1906; Shepherd v. State, 89 Miss. 147, 42 So. 544; McQuillen v. State, 8 Smedes & M. 597; Rawls v. State, 8 Smedes & M. 597, 8 Smedes & M. 609; Stokes et al. v. State, 24 Miss. 624; Posey case, 86 Miss. 141, 38 So. 324; Cook v. State, 90 Miss. 137, 43 So. 618.
Evidence of previous difficulties is admissible generally where there is a claim supported by evidence of self-defense, or where the proof justifies the giving of a charge on the law of self-defense.
30 C. J., 235, sec. 473 (5); 30 C. J., 158, sec. 372 (a); 30 C. J., sec. 424, page 196; 30 C. J., sec. 42 (3), page 197; 30 C. J., page 157, sec. 371 (c).
The failure of an instruction to limit jury to the evidence is erroneous.
Gordon v. State, 95 Miss. 543, 49 So. 609; Larkinsville Mining Co. v. Flippo, 130 Ala. 361, 30 So. 358; Park v. Pebbin, 109 Ill.App. 560; Loudon v. City of Chicago, 83 Ill.App. 208; Goulding v. Phillips, 100 N.W. 516 (Ia.); Romney v. City of New York, 63 N.Y.S. 186, 49 A.D. 64; Champion Iron Fence Co. v. Bradley, 10 Ill.App. 328.
Rufus Creekmore, Assistant Attorney-General, for the state.
The judge has no power to pretermit a term of the court.
Section 158, Constitution of 1890; Walton v. State, 147 Miss. 851, 112 So. 790; Perkins v. State, 148 Miss. 608, 114 So. 392; Section 264 of Constitution of 1890.
The motion to quash the panel was properly overruled.
Section 2342, Hemingway's Code 1927; Shepherd v. State, 89 Miss. 147, 42 So. 544; Cook v. State, 90 Miss. 137, 43 So. 618.
The court will see from a reading of these two cases that they are totally dissimilar from the case at bar.
Section 2365, Hemingway's Code 1927.
Delivery of copy of indictment and special venire facias to the defendant was sufficient.
Section 1302, Hemingway's Code 1927; McCarty v. State, 26 Miss. 299; Browning v. State, 33 Miss. 47; Collier v. State, 106 Miss. 613, 373; Loper v. State, 3 How. 429; Hannah v. State, 87 Miss. 375, 39 So. 855; Collier v. State, 106 Miss. 619, 64 So. 373; Estes v. State, 127 Miss. 309, 90 So. 80.
The continuance was properly refused.
Lamar v. State, 63 Miss. 265; Ware v. State, 133 Miss. 837; Cox v. State, 138 Miss. 370, 103 So. 129; Everett v. State, 147 Miss. 570, 113 So. 186.
Argued orally by R. L. Corban, Jr., Everett Truly and W. A. Geisenberg, for appellant, and by Rufus Creekmore, Assistant Attorney-General, for appellee.
Appellant was indicted, tried and convicted of the murder of his wife, and sentenced by the court to imprisonment for life. The killing occurred in a small storehouse owned and operated by appellant, about one mile from the town of Fayette. The store was about fourteen by sixteen feet in size, counters being at the rear end and on both sides, and the door opening in the front. Shortly after the killing and in the early afternoon, the lifeless body of the deceased was found lying in the store, with the door closed. Blood stains and a portion of the brains were found on the floor and near the door. There were two wounds on the body; one bullet entered about the middle of the shoulder blade, the other in the back of the head, lodging below the eye. Appellant admitted the killing, but claimed self-defense. The state introduced no eyewitnesses to the shooting, but relied upon the physical facts, and the statement of appellant made shortly afterward. For the defense, it was shown that the deceased was the aggressor in the fight; that the altercation arose over the failure of the deceased to prepare dinner for three men who were boarders in the Ivey home; that during the quarrel, Mrs. Ivey became enraged, cursed defendant, and began throwing several objects at him--a pair of small scales, a knife, and several "Big Chief" pop bottles were hurled at him by deceased; and that she continued throwing objects at him. It seems that the knife struck him, but inflicted no wound; that defendant was a weakly man, suffering from an aneurysm of the heart aorta, and unable to engage in physical encounters. He got a pistol from under the counter, and shot first when deceased was throwing a pop bottle at him. This shot caused the wound in the shoulder. Mrs. Ivey then turned, and was getting another pop bottle to throw at him, when the second shot was fired, inflicting the fatal wound in the head. There are several assignments of error.
The circuit judge in vacation caused the clerk to enter an order pretermitting the regular February, 1928, term of the circuit court of Jefferson county. This order was dated January 23, 1928. Three days thereafter the judge, still in vacation, rescinded the former order pretermitting the regular court term, and instructed the sheriff and chancery and circuit clerks to draw the jury as provided by section 2342, Hemingway's 1927 Code, for the regular February term of court.
Upon the convening of court, but before any jurors were called or impaneled, defendant presented to the court a motion, challenging the authority of the judge to hold the regular February term, on the ground that the term having been pretermitted by order of the judge, he had no authority to vacate or rescind the same in vacation. The court overruled the motion; and this action of the court is assigned as error.
It is argued that the judge had authority to pretermit the court term, and, having exercised this authority by causing the order to be entered on the minutes, he had no authority to vacate and rescind the order.
Has a circuit judge the authority to pretermit a term of court?
This court had under review this section, together with section 264, in Walton v. State, 147 Miss. 851, 112 So. 790, and said, in part:
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Garrett v. State
...have been had they been present in court. This was required of the defendant in the cases of Lamar v. State, 63 Miss. 265; Ivey v. State, 154 Miss. 60, 119 So. 507; Cox v. State, 138 Miss. 370, 103 So. 129; Henderson v. State, 187 Miss. 166, 192 So. 495, 497. As said in this last case: "Thi......
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Winchester v. State
...parts of two days could not be pieced together so as to make one entire day. This court has held, further, in the case of Ivey v. State, 154 Miss. 60, 119 So. 507, that it was not necessary for the sheriff to deliver copies but that the clerk might deliver them, the court holding that these......
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... ... possible, and if not, following up the trial, on a motion for ... a new trial, either with their affidavits showing what they ... would have testified had they been present or have the ... witnesses introduced, as announced in Lamar v ... State, 63 Miss. 265; Ivey v. State, 154 Miss ... 60, 119 So. 507; Cox v. State, 138 Miss. 370, 103 ... So. 129; and other cases cited under the second syllabus of ... Lamar v. State, supra, in the West Publishing Company reprint ... [192 So. 497] ... of Mississippi Reports. See, also, Mississippi Digest ... ...