Kirby v. State
| Decision Date | 02 December 1944 |
| Parties | KIRBY v. STATE. |
| Court | Tennessee Supreme Court |
Error to Circuit Court, Sevier County; George R. Shepherd, Judge.
Ray Kirby was convicted of attempt to commit voluntary manslaughter, and he brings error.
Reversed and remanded.
George G. Allen and B. A. Townsend, both of Sevierville, and Homer A. Goddard, of Maryville, for defendant in error.
Nat Tipton, Asst. Atty. Gen., for the State.
On November 8, 1943, defendant, Ray Kirby, who appeals, was convicted of an attempt to commit voluntary manslaughter in the Circuit Court of Sevier County, and for the offense was sentenced to serve two years in the State penitentiary.
The alleged assault was committed in a beer tavern known as 'Perry's Place' in Sevier County, Tennessee. On the evening of October 2, 1943, Ray Kirby with his two brothers, Charles and Earnest, was sitting at the counter in that tavern drinking beer. After the Kirby brothers had been there for some time Glenn Tarwater, the victim of the assault, with two companions, Cedric and Albert Gibson, came into the tavern and also sat down at the counter and ordered beer. An actual picture of subsequent events is by no means clear from the record. It varies with the testimony of each of the witnesses for the State and for the defense.
However three witnesses who are apparently neutral and disinterested and who were not attached to the party of the defendant nor to that of Tarwater, testified that they saw these six young men in the place on the evening in question. Having their attention attracted neither by loud words nor other unusual occurrences, that suddenly there was a free-for-all fight in which some four or five of the young men joined. It is only clear that the defendant and his brothers were fighting on one side, and Tarwater and the Gibson brothers on the other. It does not appear from the testimony of these witnesses, who were the aggressors and who were the defendants. These witnesses are unable to separate the combatants into pairs and can only say that it was a free-for-all melee in which all joined.
They agreed that the only weapons they saw used were the fists of the young men and that none of them saw a knife in the hands of any one of the fighters. It was only after the fight had stopped that any of these three witnesses noticed that Tarwater's clothing had been cut. No one of them saw a weapon in the hands of the defendant, and one of them testified that at the time he had nothing in his hands.
It is useless to review in detail the testimony of the combatants themselves. Their accounts are so prejudiced and contradictory as to be irreconcilable. It is sufficient to note that only one witness, Cedric Gibson, testified that Ray Kirby, the defendant, had a knife in his possession on the evening in question. He said that he saw Ray Kirby with a small, white-handled pocket knife in his hand when he drew some change from his trousers' pocket. This was before the fight started and there is no testimony, whatever, that the knife was ever opened or used during the fray. On cross-examination he identified a white key holder as being the knife in question. We think the testimony of this witness is of little weight.
It is the testimony of all the witnesses that during the fight between defendant and Tarwater, they were standing face to face fighting with their fists and then went into a clinch. Defendant positively denies that he had or used a knife on the evening in question, and he testifies that Albert Gibson one of Tarwater's friends, had a knife and while trying to cut the defendant, cut Tarwater. Tarwater was cut and stabbed some twelve or fourteen times in the left side and back.
After his conviction, defendant made motion for a new trial, and this being overruled, he has perfected his appeal to this Court and made five assignments of error.
We feel it unnecessary to consider these in order as we think a consideration of the fifth and last assignment must dispose of the appeal. The assignment is based on the following cross-examination of the defendant, which shows what then occurred between counsel for the defense, the Attorney General and the Court:
Objection to question by Mr. Goddard.
Objection sustained by Judge.
'Judge Shepherd: Objection sustained Mr. Attorney General.
Objection to question by Goddard.
'Sustained by Court.
'
Objection by Mr. Goddard.
'Judge: Attorney General can ask if he was convicted?
'Mr. Goddard: That has nothing to do with this case.
'Mr. Wolfenbarger: The judge has ruled I can ask him.
'Mr. Goddard: We except.
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Brooks v. State
... ... other witness'; thus opening the door for cross ... examination as to former convictions, and previous acts of ... moral turpitude, subject always to the limitation of such ... evidence to its effect on his credibility as a witness. In ... Kirby v. State, 182 Tenn. 16, 20, 184, S.W.2d 41, ... 42, Mr. Justice Gailor speaking for the Court said: ... '(1) ... The rule with regard to the admission of evidence of other ... offenses on a criminal trial is well stated to be: ... 'Evidence material to the issue under ... ...