Ivey v. State

Decision Date07 April 1938
Citation180 So. 368,132 Fla. 36
PartiesIVEY v. STATE.
CourtFlorida Supreme Court

Error to Circuit Court, Sarasota County; George W. Whitehurst Judge.

James Ivey was convicted of murder in the second degree, and he brings error.

Affirmed.

BROWN J., dissenting.

COUNSEL

Frank Redd and Clyde H. Wilson, both of Sarasota, for plaintiff in error.

Cary D Landis, Atty. Gen., and Tyrus A. Norwood, Asst. Atty. Gen., for the State.

OPINION

CHAPMAN Justice.

Plaintiff in error, James Ivey, was convicted of murder in the second degree in the circuit court of Sarasota county, Fla., on May 14, 1937, for the unlawful killing of one Henry Dorsey, and was sentenced to the State Penitentiary for a period of his natural life. He has perfected his appeal to this court and seeks a reversal of the judgment against him on a number of assignments.

Counsel for plaintiff in error assigns as error certain questions propounded to the defendant while on the stand as a witness by counsel for prosecution. The material questions propounded on cross-examination are:

'Q. Have you at any time been convicted of any crime? A. Well I have been convicted one time--I made 60 days about three years ago.
'Q. What was that for? A. Well, I run into a garage and a man followed me and he carried out an old T motor valve and I didn't know nothing about it until they told me about it and I didn't have nothing to do with it, but they gave me 60 days around the jail.
'Q. You have not been convicted of shooting anybody previously have you? A. No, sir.
'Q. How old a man are you? A. I am right around 34.
'Q. What is your business; what business are you engaged in? A. Well I do trucking work and hauling all over town; moving and setting and trees and hauling black dirt and fertilizer and cutting up fields and harrowing.
'Q. Have you been making a living at it? A. Yes sir, I have been making a pretty good living.
'Q. How long have you lived in Sarasota? A. I have been living here about four years.
'Q. Have you been on relief any of that time? A. No sir, I never have worked at any relief work.
'Q. You worked at your own work, pursuing your own work, supporting your own family and supporting your won home? A. Yes sir.
'Q. That's doing pretty good for a nigger in comparison with some white folks? A. Yes sir, I hope it is.
'Q. The only thing you have been in trouble about is that old motor valve that you spent 30 days in jail for? A. Sixty days.
'Q. In the stockade? A. No sir, right around the Court House.
'Q. Right around the Court House--they made you a trusty is this right? A. Yes, sir.
'On cross-examination by State Attorney Williford:
'Q. Ivey, you testified on your direct examination that you had lived out there peaceably and quietly during the whole time you lived there and that you had only been in trouble once and that was about the motor valve that you were accused of stealing and that you had discovered this other fellow had taken, is that right?
'Mr. Redd, counsel for defendant, objected to question; the court overruled objection and noted exception.
'Q. Didn't you forget the time you got in trouble on January 16th, 1936, for assault and battery and that you were arrested for that?
'Counsel for defendant objected to question; the court overruled the objection and noted exception.
'Q. Answer the question; didn't you forget about that time you were arrested by the sheriff for assault and battery in January of last year? A. Which sheriff?

'Q. The Sheriff of Sarasota County? Do you remember that now? A. I don't remember of my fighting anybody--it might have been.

'Q. You may have been arrested but you don't remember it? A. No sir, not for fighting nobody.

'Q. For assault and battery? A. No sir.'

It will be observed that the defendant's counsel on direct examination propounded to the defendant the question: 'The only thing you have been in trouble about is that motor valve that you spent 30 days in jail for?' The questions assigned as error were propounded on cross-examination. The questions objected to as disclosed by the record had as their objective not only to cover the field of inquiry made by the general scope of the direct examination, but to test the memory of the witness and the accuracy of his testimony. It is true by section 4373, C.G.S., a defendant on trial may be asked if he has been convicted of crime, and if it is denied, the record can be admitted in evidence to contradict the statement if one was made. Counsel for defendant was not required to ask the question, supra, thereby opening the gate for a thorough and comprehensive cross-examination on this point. We fail to see where the questions and answers were to the detriment of the rights of the defendant, but justice required that the jury should have a full knowledge of the defendant's activities over the years, which counsel for defendant thought was advantageous to his cause and for the jury to have when considering the issues.

It is next contended that the lower court erred in refusing to permit or allow certain evidence to go to the jury detailing the facts existing at the time the fatal shot was fired and shortly prior thereto. Likewise it is contended that the deceased and the witness Elizabeth Ivey were fighting and possibly the homicide was committed by Elizabeth Ivey.

We have read the evidence about the admittance of the deceased into the room or apartment of Elizabeth Ivey, and we fail to find any testimony or reasonable inference therefrom to the effect that the death of Henry Dorsey was caused by her. The evidence shows cordiality or friendship existing between them and no animosities whatsoever. We have examined other assignments based upon the admission or rejection of testimony. While some of the rulings of the lower court may be subject to the criticism offered, but considering the same in the light of all the evidence in connection with the case at bar, we do not think reversible error was committed.

Counsel for plaintiff in error contends that the lower court erred in denying defendant's motion for a directed verdict. We have considered all the evidence before the lower court when the motion urged here was ruled upon. We think the lower court ruled correctly in denying the motion. The evidence shows that Henry Dorsey was killed while in the apartment of Elizabeth Ivey. Witnesses heard a pistol shot, and shortly thereafter another shot, when Elizabeth Ivey was tusseling with the defendant for the possession of the pistol. The defendant admitted firing a shot into the room occupied by Elizabeth Ivey and Henry Dorsey. This court, when considering a motion for a directed verdict in the case of Gravette v. Turner, 77 Fla. 311, text 314-316, 81 So. 476, 477, said:

'In directing a verdict, the court is governed practically by the same rules that are applicable in demurrers to evidence. Pleasants v. Fant, 89 U.S. (22 Wall.) 116, 22 L.Ed. 780.

'A party in moving for a directed verdict admits not only the facts stated in the evidence adduced, but also admits every conclusion favorable to the adverse party that a jury might fairly and reasonably infer from the evidence. Gunn v. City of Jacksonville, 67 Fla. 40, 64 So 435. When the facts are not in dispute, and the evidence, with all the inferences that a jury may lawfully deduce from it, does not, as matter of law, have a tendency to establish the cause of action alleged, the judge may direct a verdict for the defendant. But the court should never direct a verdict for one party unless the evidence is such that no view which the jury may lawfully take of it favorable to the opposite party can be sustained under the law. Where there is room for a difference of opinion between reasonable men as to the proof or facts from which an ultimate fact is sought to be established, or where there is room for such differences as to the inferences which might be drawn from conceded facts, the court should submit the case to the jury for their finding, as it is their conclusion, in such cases, that should prevail, and not primarily the views of the judge. In an action for negligence, where there is any substantial testimony from which the jury could find the issues in favor of the plaintiff, a peremptory charge for the defendant should not be given. A case should not be taken from the jury by directing a verdict for the defendant on the evidence, unless the conclusion follows as a matter of law that no recovery can be lawfully had upon any view taken of facts that the evidence tends to establish. The credibility and probative force of conflicting testimony should not be determined on a motion for a directed verdict. The duty devolving upon the court in reference to directing a verdict on the evidence may become, in many cases, one of delicacy, and it should be cautiously exercised. Gunn v. City of Jacksonville, supra; Logan Coal &...

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  • Robertson v. State
    • United States
    • Florida District Court of Appeals
    • March 28, 2001
    ...jury, the defendant was then subject to cross-examination and potential impeachment like any witness in any case.2See Ivey v. State, 132 Fla. 36, 180 So. 368 (Fla.1938); C.M. v. State, 698 So.2d 1306 (Fla. 4th DCA 1997); Ashcraft v. State, 465 So.2d 1374 (Fla. 2d DCA The defendant testified......
  • Robertson v. State
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    • Florida District Court of Appeals
    • April 12, 2000
    ...was then entitled to impeach the defendant's statements and to show that he was not being truthful on the stand. See Ivey v. State, 132 Fla. 36, 180 So. 368 (1938); Lusk v. State, 531 So.2d 1377 (Fla. 2d DCA It is important for the legal profession and the judiciary to send a strong message......
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    ...42 S.W.2d 696; Pinn v. State (Neb.), 186 N.W. 544; State v. Howard (Mo.), 23 S.W.2d 16; State v. Thornhill (La.), 178 So. 343; Ivey v. State (Fla.), 180 So. 368.) No is cited by appellant nor are there any in the majority opinion holding that under statutes similar to ours where the defenda......
  • Street v. State, 76928
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    ...Amazon v. State, 487 So.2d 8, 11 (Fla.), cert. denied, 479 U.S. 914, 107 S.Ct. 314, 93 L.Ed.2d 288 (1986); Ivey v. State, 132 Fla. 36, 45, 180 So. 368, 372 (1938). In any event, defense counsel did not request replacement of the juror with an alternate or make a motion for a Street also com......
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