Kennedy v. State

• Decision Date: 17 April 1913
• Parties: KENNEDY v. STATE.
• Court: Alabama Supreme Court

62 So. 49

182 Ala. 10

KENNEDY v. STATE.

Supreme Court of Alabama

April 17, 1913

On Rehearing, May 8, 1913

Appeal from City Court of Anniston; Thomas W. Coleman, Judge.

William Kennedy was convicted of murder in the first degree, and he appeals. Affirmed.

Shelton Kennedy and his son Sarge were killed in the same affray, and defendant was jointly indicted with John Pearce and others for the murder of Shelton Kennedy, who was the defendant's son. The undisputed evidence is that there had been for some time bad blood between Pearce and Shelton Kennedy, growing out of a dispute as to the use by Pearce and his lumber wagons, of a road running through a portion of the lands belonging to deceased. Just before the affray Pearce had secured a temporary writ of injunction forbidding deceased to interfere with Pearce's use of the road. On the morning of the killing Pearce started four or five lumber wagons from his mill along the road towards the contested section. According to the evidence of the state Pearce was armed with a Winchester rifle and a pistol, and three other members of his party carried shotguns or army guns. Just before starting Pearce made inquiries of persons who had come from up the road whether Shelton Kennedy and his boys were there, and what they said. Upon being informed that they said the sawmill men could not pass through, Pearce remarked that he would see about that in a few minutes. Defendant left the sawmill about five minutes in advance of the wagons, and when he reached the obstructed part of the road, he encountered Shelton Kennedy and his son Sarge, who forbade the removal of the obstructions, and he was engaged in a dispute with them when John Pearce and his party came up with the lumber wagons. After the latter arrived the dispute was carried on chiefly by defendant and Shelton Kennedy, John Pearce and one or more others of his party standing near by with weapons in their hands. Finally, under the orders of Pearce, an ax was produced and passed to defendant, with which he proceeded to cut away the wires of the obstructing fence. Immediately thereafter the firing began, and the evidence is conflicting as to who began it. Shelton Kennedy and his son were shot to death, and none of the Pearce party were injured. Defendant had no firearm, and took no physical part in the shooting nor does it appear that he was shot at. His own testimony however, shows that he knew of the hostility existing between John Pearce and Shelton Kennedy, and of the dispute between them as to the use of the road; that he knew that Pearce had secured an injunction for keeping the road open, and that he intended to clear it himself; that he saw the wagons approaching the scene of altercation, saw the Pearces with their guns, and knew they were intending to open the road and that his son told him before the others arrived that he would shoot anybody that traveled that road. When defendant left the sawmill that morning he saw them loading the wagons, and knew they would come along the road just behind him, and he had also talked with Pearce about the road that morning. Witness for the state testified that Shelton Kennedy was in possession of the field through which the road ran at that point, and of the ground where the dead bodies were lying. Defendant objected to the several questions calling for this evidence on the ground of irrelevancy, and the objections were overruled. The state's witness Dyer was asked by the solicitor, "Did you get anything from Dr. (John) Pearce that morning?" and, upon his replying that Pearce gave him a bullet box about 2X1 1/2 inches in size, he was asked further, "What did the box have on the outside of it?" to which he replied, "A picture of a bullet." Objection was made to both questions on the ground of irrelevancy, but there was no motion to exclude the answers. Dr. Anderson, a state's witness, was allowed, against defendant's objection for irrelevancy, to testify that the bullets in Sarge Kennedy's body "seemed to come straight from the back and to go straight in." Other rulings are sufficiently stated in the opinion.

Knox, Acker, Dixon & Sterne, Tate & Arnold, and Hugh Walker, all of Anniston, for appellant.

R.C. Brickell, Atty. Gen., and W.L. Martin, Asst. Atty. Gen., for the State.

SOMERVILLE J.

Defendant was voluntarily present at the time and place of the fatal affray in which his son and grandson were shot to death by John Pearce and others. He knew of the quarrel between Pearce and deceased, and knew of Pearce's purpose with force and arms to carry his wagons over the disputed section of the road, and knew also of his son's purpose to resist that aggression to the extent of taking life if need be. Under these ominous conditions defendant remained on the ground and continued a dispute previously begun, and actively aided the Pearce party in the violent removal of the obstruction and in the forcible passage of the disputed roadway. Whether he was a guilty participant in the killing of his son and grandson which then and there followed, was, under the...