State v. D.

• Decision Date: 03 July 1931
• Docket Number: 30,013
• Citation: 133 Kan. 509,300 P. 1098
• Parties: THE STATE OF KANSAS, Appellee, v. O. D. (PETE) IRWIN, Appellant
• Court: Kansas Supreme Court

300 P. 1098

133 Kan. 509

THE STATE OF KANSAS, Appellee, v. O. D. (PETE) IRWIN, Appellant

No. 30,013

Supreme Court of Kansas

July 3, 1931

Decided July, 1931.

Appeal from Cherokee district court; JOHN W. HAMILTON, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

HOMICIDE--Manslaughter--Sufficiency of Evidence. The evidence relating to murder considered, and held sufficient to sustain a verdict of guilty of manslaughter in the first degree.

W. H Foulke and L. S. Dewey, both of Joplin, Mo., for the appellant.

Roland Boynton, attorney-general, R. O. Mason, assistant attorney-general, Marc C. Boss, county attorney, and Forrest D. Smythe, assistant county attorney, for the appellee.

OPINION

SLOAN, J.:

The defendant was convicted of manslaughter in the first degree. He appeals.

The facts are these. Charles Gibbons for some time prior to May 24, 1930, operated a lunch stand on Seventh street in the city of Galena. Some time prior to this date Gibbons had quarreled with Ralph Price and there was bad feeling between them. The defendant had been acquainted with Gibbons for about three years prior to the date mentioned and had worked for him at different times during the period of his acquaintance. He and his wife had been working at the lunch stand for about a week prior to this date. It was a part of defendant's employment to drive the Gibbons' car. On the afternoon of May 24, 1930, the defendant and Gibbons started for Joplin in the Gibbons' car. As they reached the corner where they turn on highway 66 for Joplin, Gibbons, according to the defendant, "told me to swing around to the other side of the street as there was a guy he wanted to see. . . . He said to stop in front of the store . . . and said, 'I'll be back in a minute.'" The defendant stopped the car near an ice truck standing in front of the Williams store, where Gibbons got out, and the defendant drove about fifty to seventy-five feet to the south and stopped the car near and parallel to the curb, waiting at the wheel with his motor running and the door open. Price was working on the ice truck and as Gibbons alighted from the car he drew two guns. When Price saw him he ran into the store, calling for help. Gibbons followed and fired three shots into his body. He walked out of the store with his guns in his hands, to the car, returning the guns to their holsters as he entered the car. The instant Gibbons entered the car it drove south and turned west on Seventh street to the Gibbons lunch stand, where the defendant got out, went in the lunch stand and came back with his wife and suitcase.

The defendant's story is that he did not see Price and did not know who Gibbons expected to see when he left the car, nor that he had his guns with him until he returned to the car with a gun in his right hand; that he heard an explosion but thought it was a back-fire of a car or truck; that Gibbons directed him to drive back to the lunch stand and that he then told him to get his wife and money. When he hesitated Gibbons said: "I mean business; hurry up." He went in the lunch stand, got his wife and the money.

"Q. Did you get anything else? A. That is all, a suitcase.

"Q. Your wife brought a suitcase out? A. Yes, sir.

"Q. You took time to get a suitcase and pack it up and bring it along. A. No, sir; the suitcase was already packed with some of her clothes in it.

"Q. You brought that suitcase out with you? A. She brought it out.

"Q. And you put that in the car? A. Yes."

They drove west to the Military road and turned south, and the defendant relates the following:

"'Where are you going, Charlie?' and he answered, 'To Arkansas.' Then he said, 'Turn around here and go north.' They went north, took the Coal Valley road up to some people that Gibbons knew there in the north part of the county; that he didn't know them himself, but learned that the name was Finn and Wilson. That they drove into the yard and Gibbons called them out to the car and told them he was in a jam. He said, 'I guess I was a little mad and got into this trouble and didn't know just what I was doing.' In about forty minutes they went to another place two miles north. They stayed there till Tuesday and then got the news. 'Up to this time my wife and I had not learned what had actually happened. I finally got hold of a newspaper. . . . The papers stated that there were mobs out.' He didn't want to come back until he felt like he had some protection and after things had cooled off a little. He went to Burke, Idaho, then to Spokane and then to...