Irby v. State

• Decision Date: 23 January 1939
• Docket Number: 33336
• Citation: 186 Miss. 161,185 So. 812
• Court: Mississippi Supreme Court
• Parties: IRBY v. STATE

185 So. 812

186 Miss. 161

IRBY v. STATE

No. 33336

Supreme Court of Mississippi, Division A

January 23, 1939

APPEAL from the circuit court of Lauderdale county HON. ARTHUR G BUSBY, Judge.

Maurice Irby was convicted of manslaughter, and he appeals. Reversed and remanded.

Reversed and remanded.

J. V Gipson and Gilbert & Cameron, all of Meridian, for appellant.

Russell Wright, Assistant Attorney-General, for the State.

Briefs of counsel not found.

Argued orally by C. B. Cameron, for appellant, and by Russell Wright, for the State.

OPINION

Smith, C. J.

The appellant was indicted for murder and convicted of manslaughter. He complains of the introduction of evidence and of the granting and refusal of instructions to the jury.

Sam Irby, the appellant's father, was possessed of a building abutting a highway near Meridian, in which there were several rooms. In one room he sold beer and soft drinks, and in another conducted a dance hall. The entrance from the highway was into the room where the beer was sold, and from that, by a connecting door, into the dance hall. He used the other rooms of the building as a residence, and the appellant and another son, John Irby, lived with him and assisted him in the business there conducted.

On December 24th, 1937, around one o'clock A. M., Will Carlisle, and other men and women, were in the dance hall. These men were drinking intoxicating liquor, and, according to the evidence for the appellant, were drunk. The evidence warranted the jury in believing that Carlisle was guilty of disorderly conduct in the dance hall, and that thereafter he left the dance hall, went into the beer room, and was standing at the door thereof leading out of the building and to the highway. The state, over the objection of the appellant, introduced evidence that John Irby then struck Carlisle with a short iron instrument, designated as a link, and knocked him out of the door. A link, said to be the one used by John, was introduced in evidence, and also evidence that on a former day John had a link in his possession similar to the one with which he struck Carlisle. After striking Carlisle, John went to the rear of the beer room. The appellant was in the dance hall when this occurred, but immediately thereafter entered the beer room and went to the door from it to the highway, according to his testimony, to answer a call from the highway for curb service. According to the evidence of the appellant he did not know that John had struck Carlisle, and the contrary does not appear from the state's evidence, nor does any evidence of a conspiracy by John and the appellant to assault Carlisle appear.

When Carlisle was knocked out of the door by John, he walked a few steps therefrom, returned to the door, and met the appellant either in or just outside of the door. A fight between them then occurred. Which was the aggressor does not appear from the state's evidence. The appellant knocked Carlisle down two or three times during this fight. John appeared after the fight had begun and participated therein. When Carlisle fell the last time, he lay on, or partly on, a cement pavement, his head being thereon, and both John and the appellant continued to beat him and, in the language of the witness, to "stomp" him on the head. The appellant, who then had several knife cuts on his body, procured an automobile, had Carlisle placed on the back seat thereof, and drove the automobile into Meridian, collided with a telephone post, caused, according to his evidence, in avoiding a collision with another automobile, resulting in the automobile's being partially wrecked. He was assisted therefrom by a person, who happened to be near, and carried to a hospital. Carlisle's body was then taken from the automobile and carried to an undertaker's establishment. The jury were warranted in believing that Carlisle was dead when put into the automobile at the place of the fight.

The appellant's evidence was to the effect that Carlisle made an unprovoked assault on him with a knife, and that he simply defended himself therefrom, and that he did not strike Carlisle after he had fallen.

1. The evidence of the assault made by John Irby on Carlisle prior to the fight between the appellant and Carlisle should not have been admitted in evidence. The appellant is not shown to have been in any way a party thereto or to have known thereof at the time of his difficulty with Carlisle. While near in point of time to the difficulty between the appellant and Carlisle, it was no part thereof, was strictly res inter alios acta, and the appellant cannot be charged therewith. The attorney general says that the evidence of one of the witnesses discloses that the appellant assisted John in making this first assault on Carlisle, but it is clear from the evidence of the witness referred to that he did not see this assault and his attention was attracted to the matter after the difficulty between Carlisle and the appellant had begun.

2. Over the objection of the appellant, the state proved that the automobile procured by the appellant, for transporting himself and Carlisle to a hospital, was owned by a stranger who had parked it at Sam Irby's place of business some months before, had never returned for it; that the appellant had appropriated it to his own use, and used it on this occasion instead of an automobile belonging to his father which was parked nearby. This evidence has no bearing on the guilt vel non of the appellant, may have caused the jury to believe that he was guilty of another crime--theft, and, whether intended for that purpose or not, lent color to the state's examination of witnesses, who saw the wreck of the automobile, tending to show that it was brought about purposely by the appellant, from which the jury could have inferred that his purpose in so doing was to make it appear that Carlisle was killed in the...