Ivy v. State

• Citation: 1 McCanless 650,197 Tenn. 650,277 S.W.2d 363
• Parties: Isaac H. IVY v. STATE of Tennessee. 1 McCanless 650, 197 Tenn. 650, 277 S.W.2d 363
• Decision Date: 11 March 1955
• Court: Supreme Court of Tennessee

Page 363

277 S.W.2d 363

Isaac H. IVY v. STATE of Tennessee.

1 McCanless 650, 197 Tenn. 650, 277 S.W.2d 363

Supreme Court of Tennessee.

March 11, 1955.

Rehearing Denied April 7, 1955.

R. Garland Draper and Jake Green, Memphis, for plaintiff.

Knox Bigham, Asst. Atty. Gen., for the State.

SWEPSTON, Justice.

The defendant, Isaac H. Ivy, was indicted by the Shelby County grand jury on September 27, 1951, for the alleged murder of Martin Junior Vanderberg on September 15, 1951, and was tried on January 22, 1952, as a result of which he was found guilty of murder in the second degree.

On appeal to this Court the judgment of the Trial Court was reversed and the case remanded for a new trial, this Court being of opinion that the weight of the evidence was against the verdict as tending to show that one Adkins was the aggressor in the conflict between him and Ivy.

The defendant was tried again on September 25, 1954, as a result of which he was convicted of involuntary manslaughter with a maximum penitentiary sentence of three and one-half years, and the case is here again on appeal from the second conviction.

The tragedy occurred about 1:00 o'clock in the morning in the parking area in front of a night-club called Gypsy Village when during the course of a fight between Ivy and Adkins, Ivy stabbed his cousin Martin Vanderberg, Jr. in the chest, as a result of which Vanderberg shortly thereafter died.

The first five assignments of error and the argument thereunder deal with the facts of the case. It is hardly necessary to repeat that the verdict of the jury is conclusive as to the credibility of the witnesses. Also that an accused convicted in the Trial Court comes to this Court under a presumption of guilt and under the burden of showing that the evidence preponderates against the verdict below and that, assuming the credibility of the witnesses to have been settled by the verdict of the jury, we can only review the evidence for the purpose of determining whether the same preponderates against the judgment below, as is described in Cooper v. State, 123 Tenn. 37, 56-61, 138 S.W. 826.

On the evening of September 15, 1951, the defendant Ivy and his wife, Mr. and Mrs. Martin Vanderberg, Sr., and Mr. and Mrs. James Frazier got together and decided to go to this night-club which is on the outskirts of the City of Memphis. They obtained a fifth of whisky and each one had one drink before they left in the car of the defendant, and arrived at the night-club about 10:00 P. M.

In front of the night-club which is on the east side of the highway, there is a grass plot seven or eight feet wide contiguous to the building, and then a line of posts demarking this grass plot from the graveled parking area, and the photographs show that there is a narrow strip of grass of probably two or three feet between these posts and the gravel which constitutes the parking area. These posts extend southward to about the south side of the night-club building, then there is a driveway going on the south side of the house to the rear.

When this party arrived at the night-club the defendant parked his car at the south end of these posts near the driveway.

After they had been in the night-club for thirty to forty-five minutes Mr. Vanderberg Sr., telephoned his son, the deceased, to come on down and about 11:00 o'clock the deceased and his wife accompanied by Mr. and Mrs. Raymond Adkins, arrived and joined the first group at a large round table, bringing with them another fifth of whisky complementing what was left of the original supply brought by defendant's party. It seems that everybody had a drink or drinks, although it is asserted by everybody that no one was drunk, and they remained there dancing and most of them enjoying themselves apparently, until after half-past twelve.

There was evidently some unpleasantness between Adkins and Ivy, but no evidence whatever, that the deceased was involved in any way other than as a peace-maker. Ivy testified that Adkins made himself obnoxious from the moment he came in, asserting that he was a member of the Memphis police force, intimating that he had a gun, and generally acting a 'bully,' although in Ivy's statement to the police given and taken down the next morning, he was questioned in part, and gave answers as follows:

'Q. Was you mad at Adkins at any time last night? A. I wasn't mad at him, he did some things that I didn't like.

'Q. What did he do that you didn't like? A. He poured me out a drink of whisky and I didn't like that and just the way he met me.

'Q. Why did you get in a fight after you left the Gypsy Village? A. I don't know, me and old man Vanderberg was standing up by the side of the car talking and Vanderberg said something and I said, 'there ain't no son-of-a-bitch going to run me home,' and old man Vanderberg said, 'who is he,' and I said, 'they act like they don't want me in their party,' and he asked me if I was going home and he said that he was going to ride with his boy. About that time Adkins walked up with Vanderberg, Jr., and Adkins hit me. I don't know whether he hit me behind or under my eye. I had been cleaning my fingernails and had my knife in my hands. We just started fighting and I started cutting.

'Q. Did Vanderberg get into the fight or was it just you and Adkins? A. He was in it. He was close enough to get cut.

'Q. Do you remember cutting anybody? A. I didn't even know whether I cut anybody or not but I tried to.

'Q. When was the first time that you knew Vanderberg had been cut? A. When I was over in the doctor's office at the McLemore Clinic.

'Q. What was your opinion of Adkins last night when you first saw him?

A. When he introduced himself to me I thought he was pretty nice fellow.'

On the other hand--Adkins claimed that he himself did nothing out of the way; that young Vanderberg said something to him about going to the lavatory, that he looked over to Ivy and asked him if he would like to go and that Ivy said he didn't want to go 'no God-damn place,' and the evidence, in part, contains the intimation that Ivy did not dance or get out of his chair during the evening and rather seemed to sulk.

However these facts may be, it was a question for the jury to resolve.

When the party began to break up Mr. and Mrs. Frazier and Mr. and Mrs. Ivy went outside and got in Ivy's car, then Mr. Vanderberg, Sr., came out to this car and Ivy testified that he again got out of his car for the purpose of letting Mr. Vanderberg slide in on the front seat with him and Mr. Frazier, but that Mr. Vanderberg told him, and the fact is not in dispute, that he and his wife would ride back with his son, the deceased. Ivy testified that he and Mr. Vanderberg then began talking about getting Mr. Vanderberg's automobile repaired the next day, and that he had his pocketknife open and was cleaning his fingernails when Adkins came out of the Gypsy Village, followed by the deceased, and while Ivy was...