Hutchens v. State

• Decision Date: 13 January 1970
• Docket Number: 8 Div. 29
• Citation: 232 So.2d 687,45 Ala.App. 507
• Parties: William T. HUTCHENS v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 687

232 So.2d 687

45 Ala.App. 507

William T. HUTCHENS v. STATE.

8 Div. 29.

Court of Criminal Appeals of Alabama.

Jan. 13, 1970.

Rehearing Denied Feb. 3, 1970.

G. Wade Green, Huntsville, for appellant.

MacDonald Gallion, Atty. Gen., and Richard F. Calhoun, Asst. Atty. Gen., for the State.

CATES, Judge.

Hutchens has appealed from his conviction of the statutory crime of attempting to kidnap in order to obtain money. Code 1940, T. 14, § 8. The jury set his punishment at the minimum of five years imprisonment.

I

Hutchens, 47 years old at trial, had been a 50--50 partner with his father in H & H Walgreen Agency Drugs. The father died December 4, 1965, survived (besides appellant) by his widow, Susie Newman, three daughters, Eleanor, Margaret and Sue, and several grandchildren.

Between father and son there was a contract tract that the survivor could buy the interest of the decedent for $100.000. Also, the father held a note of the partnership for $63,000. This latter instrutment seems to have caused dissension between appellant and his sister Eleanor, who along with the mother, executed the father's will.

Hutchens, individually and doing business as H & H Walgreen Agency Drugs, was by 1967 in the bankrupt court. He received a discharge in the spring of 1968.

At his trial, his sister Eleanor, the victim of appellant's attempt to kidnap her, testified in part as follows:

'Q Now, did you see him on the morning of June 3 (1968)?

'A Yes.

'Q Where did you see him?

'A I first saw him in the backyard of my mother's house, 300 Williams.

'Q Do you know approximately what time that was?

'A I think it was a little after 7:30 A.M.

'Q All right. Did you go into the backyard?

'A Yes, I did.

'Q For what purpose?

'A To take my little dog to his pen.

'Q How were you dressed at that time?

'A I had on pajamas and a bathrobe.

'Q Did you then return from the dog pen?

'A Yes.

'Q Did you see any person in the yard other than yourself at that time?

'A Yes. On my way back toward the house, after I had stopped to turn on a hydrant with which I was going to wash the dog's dish, I saw a man's face peering around the corner of the house, the opposite corner.

'Q Did that man come forward?

'A Yes.

'Q Did you recognize that person?

'A Yes.

'Q Who was it?

'A It was my brother, Bill Hutchens.

'Q Did he have anything in his hands?

'A Yes. He was carrying a gun.

'Q I will show you this rifle. I ask you if it was anything similar to this?

'A Yes, it was.

'Q In what manner was he holding it?

'A He was pointing it at me. He had it in both hands and pointed it at me.

'Q What did you do?

'A I stopped.

'Q Did you say anything?

'A Yes.

'Q What did you say?

'A I said, 'What are you going to do?

'Q Did he say anything then?

'A He said, 'Probably kill you.'

'Q All right. What next occurred?

'A He told me to go into the house.

'Q What did you do?

'A I stood still.

'Q Did he say something else then?

'A Yes. He said, 'This has a silencer on it.'

'Q Then what did you do?

'A I went into the house.

'Q Now, when you went into the house did he go into the house with you?

'A Behind me.

'Q Now then, did you stop in the house?

'A Yes, I did.

'Q In what portion of the house did you stop?

'A The back hall.

'Q Did he say anything then?

'A Yes. He said, 'Get mother up.'

'Q Now, where you stopped there is that near your mother's bedroom?

'A Yes.

'Q Now then, did you say anything in response to that?

'A I said, 'She's already up. Her little dog is here. So that means she has taken him out.'

'Q What did he say?

'A He said, 'I know that. I watched her.'

'Q What did you say then?

'A I said, 'Please don't involve mother in this.'

'Q What did he say?

'A He said, 'This gun has 16 bullets in it and you're really going to look a mess when I put them all into you.'

'Q What else did he say?

'A He told me again to open the door to mother's room.

'Q Then did you do so?

'A Yes. I first said, 'Bill when you have killed me and I'm lying here on the floor and you can't bring me back the awful thought is going to come to you that I have never done anything to you.'

'Q What did he do or say then?

'A He told me again to get mother up and said, 'I want her to watch you die.'

'Q Then what next occurred?

'A I hesitated. He said, 'You've got ten to get that door open.'

'Q Then what did you do?

'A I opened the door.

'Q Did he say anything as you opened it?

'A He said, 'Don't slam that door.'

'Q Then what did you say?

'A I opened the door widely, like that (indicating) and said, 'Mother must be taking her bath.'

'Q What did he say then?

'A He said, 'Well, go in. We'll wait for her.'

'Q Did you then go into the room?

'A Yes, I did.

'Q Did you take a seat?

'A Yes. I sat in a chair in the room.

'Q Did he sit down?

'A Yes.

'Q What did he do with the rifle he had?

'A He kept it pointed at me.

'Q Then was there any conversation between the two of you at that point, while waiting for your mother?

'A Yes. I believe it was at that time when he said, 'I'm going to make such a blood bath in this house that people will talk about it around here for a hundred years.'

'Q Then did your mother come into the room?

'A Yes.

'Q What is your mother's name?

'A Susie N. Hutchens.

'Q That's Mrs. M. M. Hutchens or Susie N. Hutchens. Is she referred to as Miss Susie by most everyone?

'A Yes.

'Q Now, when she came into the room did she do anything at all, the first time she came into the room?

'A She shut the door that I had opened to come into the room and then turned around toward us.

'Q Did she do anything else at that time?

'A I shouted at her, 'Mother, its Bill Hutchens and he's got a gun.'

'Q Did she do anything in response to that?

'A No, she did not react, except that she looked vaguely around the room.

'Q Does your mother hear well?

'A No.

'Q Does she wear a hearing aid?

'A Yes.

'Q Do you know whether or not at that time she had it on?

'A I can't say by visual observation; but I know her hearing well enough to know that since she did not hear what I said she did not have on the hearing aid.

'Q Did she leave and go and get a robe?

'A Yes.

'Q Did she return to the room?

'A Yes.

'Q Then did you repeat this statement to her that, 'It's Bill Hutchens and he has a gun?'

'A Yes, I did.

'Q Did you say it loudly?

'MR. GREEN: We object to leading the witness.

'THE COURT: Don't lead her.

'Q You say your mother returned to the room?

'A Yes.

'Q What did you say to her?

'A I repeated once more, more than once, 'Mother, it's Bill Hutchens and he has got a gun.'

'Q What did your mother say?

'A She walked toward the bed where Bill was sitting with the gun and said, 'Bill, leave this house. I have told you never to come here.'

'Q All right. What did he say?

'A He said, 'I'm going to shoot Eleanor.'

'Q What did your mother say in response to that?

'A She came over to me and put her arms around me and said, 'Oh, Eleanor.' And then she told Bill again to leave.

'Q What else did she say?

'A She said, 'Bill, I can't stand this.'

'Q What did he say to that?

'A He said, 'Then die. Why don't you die?'

'Q Did she say anything then?

'A Yes. She put her hands up to her forehead and walked down the room behind the bed where he was sitting and said, 'Oh, Morton, Morton, come back and tell me what to do.'

'Q What did Bill say then?

'A He said, 'If you don't have $158,000.00 in cash here by 11 o'clock I'm going to shoot Eleanor.'

'Q Then what did she say?

'A She said, 'Where would I get $158,000.00?'

'Q What did he say?

'A He said, 'The bank will let you have it on your note.'

'Q What did she say then, if anything?

'A She came over to me and said, 'Eleanor, what shall I do?'

'Q What did you say?

'A I said, 'I don't know, Mother.'

'Q Then did she say anything at all?

'A She said, 'Well, I'll call Louis.'

'Q What did Bill say to that?

'A He said, 'Good. I would like to blow his brains out too.'

'Q Then what did your mother say?

'A She said, 'Well, I won't call him then.'

'Q What did Bill say to that?

'A Bill said, 'No, go on and call him. You better get started.'

'Q What was next said or done?

'A Mother said, 'Well, he can't get any money from the bank at this time of the morning.'

'Q What did Bill say?

'A He said, 'Well, he better get started.'

'Q Now then, did your mother do anything at that time?

'A Yes. She went to the telephone.

'Q Of course, you don't know what was said on the other end?

'A No. All I noticed, in fact, was--I didn't say this awhile ago. While Mother was out of the room getting her robe Bill had removed the bedside telephone from its cradle and I was watching that. After she called and said, 'Louis, Bill is here and he's going to shoot Eleanor unless we have $158,000.00 for him by 11 o'clock,' at the end of that conversation, she put the phone back on the hook.

'Q After she called Louis did she leave the room?

'A She left the room, yes.

'Q Now, was there a conversation between you and Bill after she left the room?

'A Yes.

'Q What did he say?

'A He said, 'You all have been wondering where I got the money to live on these last two years. Well, I'm the best in the business.'

'Q What did you say?

'A I said, 'What business?' He said, 'I'm an assassin and the best in the business.'

'Q What else did you say to that?

'A I asked him if he had killed Martin Luther King.

'Q What did he say?

'A 'No.'

'Q What was next said then?

'A He said something about the Banana Republic. He said that it was possible to fly into some of those countries low, approaching an airport low so as to avoid customs and that he had flown in under 100 feet. He said he already had his passport, but that he could get in without going through customs.

'Q Did he ask you anything about the automobiles in the garage?

'A Yes. He said, 'Whose car is that with the Virginia license?'

'Q What did you say?

'A I said, 'It belongs to a young woman who is doing some work for me.'

'Q Did he ask where she was?

'A Yes. He said, 'Is she upstairs?'

'Q What did you say?

'A I said, 'Yes.'

'Q Did he ask about your automobile?

'A Yes. He said, 'Where is mother's...