APPEAL from the Circuit Court of Jackson County; the Hon.
RICHARD E. RICHMAN, Judge, presiding.
MR. JUSTICE GEORGE J. MORAN DELIVERED THE OPINION OF THE COURT:
Defendant appeals from a judgment entered by the trial court of Jackson County after a jury found him guilty of the crime of voluntary manslaughter.
The defendant and one Charles Compton were jointly indicted for the murder of Marion Lipe. The indictment read as follows:
"That on May 1, 1975, in Jackson County, George E. Tibbs and Charles Compton committed the offense of murder in that they did without legal justification strike Marion Lipe about the head with a metal carpenter's level and kick Marion about the head and chest with their feet, knowing such acts created a strong probability of death or great bodily harm to Marion Lipe, thereby causing the death of Marion Lipe. In violation of Paragraph 9-1 (a)(2), Chapter 38, Illinois Revised Statutes."
George Tibbs, Charles Compton, the deceased Marion Lipe, and several other people were in Big John's Tavern in Murphysboro, Illinois on May 1, 1975. The evidence disclosed that Lipe had gone with Tibbs's wife before she and Tibbs were married. Tibbs was standing at the bar when his wife came in to talk with him, whereupon Lipe came over and grabbed her by the arm. She broke loose from Lipe and ran outside. Meanwhile, Lipe took a swing at Tibbs who ducked and they both then wrestled each other to the floor. The fight was broken up and Tibbs went outside followed by Lipe. The fight between them continued outside with Lipe, who was younger and stronger than Tibbs, getting the better of Tibbs until Tibbs's friend, Charles Compton, hit Lipe in the head with his fist. Glenn "Pistol" Stearns then started to help his friend Lipe, when he in turn was hit in the head with a pool cue by Bill Tibbs, the younger brother of the defendant. About this time a general fight with several participants broke loose. As a result Lipe was killed, Glenn "Pistol" Stearns was badly injured and George Tibbs's left arm and chest were injured. Broken pool cues were found lying all over the parking lot of Big John's Tavern after this brawl. The trial court directed a verdict in favor of Compton at the end of the State's evidence. It also denied defendant Tibbs's motion for a directed verdict and then denied Tibbs's motion for a mistrial which was based on the claimed prejudicial effect of dismissing Compton out of the case at that time.
Delbert Dusch, the first witness called by the State, testified that he arrived at the tavern around 7 p.m. with his wife. There were whispers of trouble. About 8 p.m. Tibbs's wife came in the tavern and talked to her husband who was at the bar. When she started to leave, Lipe grabbed her and Tibbs told Lipe to take his hands off his wife. Lipe told him he had known "this girl" for a long time and he did not have to let her go. Tibbs's wife broke loose and ran outside. Lipe took a swing at Tibbs. Tibbs ducked and they wrestled each other to the floor. Tibbs then went outside followed by Lipe. The fight continued outside with Lipe, who was younger and bigger than Tibbs, getting the better of it. Someone then hollered that "Dudy" (Tibbs's wife) had a wreck. Dusch went back into the tavern to get his wife to take care of her. When he came back, he saw Lipe with a pool stick, or a piece of one, swinging at Tibbs and Tibbs had his arm up protecting his head. After the ambulance came and got Tibbs's wife, he walked back to the scene of the fight and saw Lipe laying with his head on Jackie Stearns' lap and "Pistol" Stearns sitting with his head bleeding.
Charles Yearian testified that he arrived in the tavern about 7 or 7:30 p.m. on May 1, 1975. He saw the scuffle inside the bar and the fight outside. Both men were swinging at each other. He thought the fight was over and went back into the tavern. He went out again to the back door and saw Lipe and Tibbs wrestling. Then Compton struck Lipe with his fist. After that, Compton backed away from the fight and Lipe and Tibbs kept fighting. He went back into the tavern again, stayed for about a minute, and when he came out, he saw some other people with cue sticks. He saw Glenn Stearns sitting in the back doorway. Bill Tibbs was hitting him in the head with a cue stick. Marion Lipe was standing looking at Glenn Stearns and George Tibbs was standing beside or behind him with a carpenter's level in his hand, which someone had gotten out of the truck for him. He then saw Tibbs hit Lipe in the head with the level, but he did not know for sure whether it was with the sharp side or the flat side. He did not see Lipe fall after he was hit. He also said that Stearns told him that Lipe had told him earlier that he wanted to fight.
Charles McComb testified that he owned Big John's Tavern. Lipe and Tibbs had been arguing about something and they finally got into it. They broke up the fight in the tavern and the two of them then went outside. When McComb saw Stearns coming in the back door with his head all bloody, he went outside to see what was going on. He then saw Tibbs hit Stearns with a level across the back. Lipe was laying on his back on the ground. Tibbs had a level in his hand which he put in the tool box in his truck. He did not see Compton there at the time.
Robert Dale Wright testified that he was in the tavern that night accompanied by Susie Klump. He saw the fight in the tavern and helped break it up. Lipe and Tibbs then went outside. He stayed inside the tavern for a while and then went out as far as the back door where he could see about ten people fighting, but he did not see either Tibbs or Compton at that time. He went back out and saw Tibbs and two other men fighting. He saw Charles Compton throw a soda bottle toward a fight that was going on on the Eleventh Street side of the building. He went back into the tavern again and when he came out he saw Lipe on the ground. One of the police officers was there. He then saw Compton jump behind the police officers and kick at Lipe. He thought the kick landed on Lipe's upper body.
Deborah Glassford testified that she went to Big John's Tavern around 7:30 p.m. that night. There was a fight going on outside at that time. She saw Marion Lipe, George Tibbs, Charlie Compton, and a few others walking back toward the tavern. Lipe was walking close to the building and Tibbs was farther away from it. George Tibbs got a level and struck Marion in the back of the head with it. She did not see where the level came from. Tibbs swung the level like a ball bat several times. She then saw Tibbs kick him in his side area and chest. She also saw Compton kicking at someone, but it was not Lipe.
On cross-examination she said she stayed in the tavern for about five minutes. She went to the back door where the parking lot was and no one was there. She stepped out the back door onto the parking lot, turned to her right and walked back to Eleventh Street. She then saw all the people that she had seen before. All of these people came back around the corner to the parking lot. Tibbs and Compton came around from the Eleventh Street side of the building first with Lipe following them.
Howard Arbeiter testified that he was standing in the area of Big John's Tavern on the night in question. He saw Tibbs who he did not know at the time stomping the head of a man lying on the ground. He said Tibbs stomped him for 10 or 15 minutes.
On cross-examination the following occurred:
"Q. Did you make this statement, `I don't know what he had but they both had a stick, but then they broke up pretty quick. They never done much fighting.'?
Q. Did you give that statement?