Ivy v. State

• Decision Date: 11 April 1904
• Citation: Ivy v. State, 84 Miss. 264, 36 So. 265 (Miss. 1904)
• Court: Mississippi Supreme Court
• Parties: DOTTS IVY v. STATE OF MISSISSIPPI

36 So. 265

84 Miss. 264

DOTTS IVY v. STATE OF MISSISSIPPI

Supreme Court of Mississippi

April 11, 1904

FROM the circuit court of, first district, Chickasaw county. HON EUGENE O. SYKES, Judge.

Ivy the appellant, and others were jointly indicted for the murder of one William McQuiston. Upon a severance appellant was separately tried, convicted and sentenced to be hanged from which conviction and sentence he appealed to the supreme court. The opinion of the court contains a sufficient statement of the facts to insure a comprehension of the question decided.

The first instruction given for the state, mentioned in the opinion of the court, is as follows: "The court instructs the jury that murder is the killing of a human being with the deliberate design to effect the death of the person killed, and if the jury believe from all the evidence in the case, beyond a reasonable doubt, that the defendant Dotts Ivy, so killed the deceased, then the jury will find the defendant guilty as charged."

Reversed and remanded.

A. T. Stovall, for appellant.

The court erred in permitting the district attorney to prove, or attempt to prove, that Becky Deering, a material witness for defendant, was the mother of children born out of wedlock. McMasters v. State, 81 Miss. 376.

To use the language of this court in the case cited this "was too heavy a load to put on a defendant before an average jury on so grave a trial," and besides that was an immaterial and irrelevant matter to the issue involved. State v. Glinn, 31 L. R. A., 298; People v. Un Dong, 106 Cal. 83.

The definition of murder in the code, sec. 1149, says, "The killing of a human being without authority of law, by any means, or in any manner, shall be murder in the following cases: When done with the deliberate design to effect the death of the person killed, or of any human being;" and in this case the purpose of the district attorney was of course to define murder as the statute defines it, but he left out a very material part of the definition, for not every killing with a deliberate design to effect the death of the person killed, is murder. It must be done without authority of law. Strickland v. State, 81 Miss. 135.

William Williams, attorney-general, and Gilleylen & Leftwich, for appellee.

The evidence offered by the state and admitted by the court touching the relation of Becky Deering and defendant Dotts Ivy was competent. The witness, Becky Deering, was an inmate of the house of defendant and a material witness in his behalf, we might say the most material. She swore to facts affirmatively going to his exculpation and contradicted much of the state's evidence.

The bias, animus, or partiality of Becky Deering became a matter of direct inquiry by the court. It was in no sense collateral or immaterial. Becky Deering was first asked if Dotts Ivy was not the father of her children born out of wedlock since she had been living with him. She made no objection to the question on the ground that it tended to subject her to a criminal prosecution, and denied that improper relations existed. She swore that she had borne four children in the ten years she had lived with defendant.

The material matter here in dispute was the partiality of Becky Deering for the defendant. If he was the father of her children, then it became important for the jury to know it in determining to what extent she should be believed. It was directly material. In assumpsit on a promissory note the execution of which was disputed, it was held material to the issue, to inquire of the subscribing witness, she being a servant of the plaintiff, whether she was not his kept mistress. 1 Gr. Ev., sec. 450; Martin v. State, 28 So. 92.

Not only can a witness be questioned on cross-examination as to matters showing his motives, interest, or animus, but he can be contradicted as to such matters. 1 Gr. Ev., sec. 450; Long v. Lapkin, 9 Cush., 361; Com. v. Byron, 14 Gray, 31; Titus v. Ash, 4 Fost. (N. H.), 319; Martin v. Farnham, 5 Fost. (N. H.), 195; Drew v. Wood, 6 Fost. (N. H.), 363; Atwood v. Welton, 7 Conn. 66; Newton v. Harris, 6 N.Y. 345.

As to the first instruction for the state complained of, it is sufficient to say that the action of the court in granting this instruction was not made a ground of the motion for a...