Kennedy v. State

• Decision Date: 10 May 1904
• Citation: 37 So. 90,140 Ala. 1
• Parties: KENNEDY v. STATE.
• Court: Alabama Supreme Court

37 So. 90

140 Ala. 1

KENNEDY v. STATE.

Supreme Court of Alabama

May 10, 1904

Appeal from Circuit Court, Jackson County; J. A. Bilbro, Judge.

Thomas H. Kennedy was convicted of murder, and appeals. Reversed.

The state introduced as a witness one James Arnold, who testified that he was present at the time John Young was killed; that he and one Lee Grider, who was cousin of the witness Arnold went with John Young to the house of the defendant about dark on Tuesday, May 19, 1903; that, on arriving at the defendant's gate, Arnold called to the defendant, and, in answer to the latter's inquiry as to who it was, replied that it was Arnold; that the defendant then walked out to his gate, and, when near it, suddenly fired on Young with a pistol; that Young turned and fled, and the defendant fired a second time; that, about the time the defendant fired, he applied a very opprobrious epithet to Young, and said "I told you I would kill you;" that the deceased was shot twice--once in the front of his chest, and again in the back--and fell some 30 yards from the defendant's gate, and died in about a half hour from the effects of said wound; that, at the time the defendant fired, Young, the deceased, was standing at or near the gatepost, and had his arms resting on the railing or post. This witness further testified that, at the time he went with the deceased to Young's house, he did not know of any ill feeling between the defendant and the deceased, and that he did not hear of any threats between them. The state also introduced as a witness one Lee Grider, who was a cousin of the witness Arnold, and the witness Grider testified to substantially the same facts as did the witness Arnold. The defendant, as a witness in his own behalf, testified that on the night of the killing, when he was called out to his gate, he was in his room, and, upon being told that it was Arnold who called him he said that he would go out if it was Arnold; that he picked up his pistol from the mantel, and walked out towards the gate; that, as he went towards the gate, he discovered Young the deceased, who was in a stooped and crouching position behind the gatepost, and, upon Young rising from his crouched position, and at the same time seeming to draw a pistol from his hip pocket, the defendant fired upon him, and that, as Young turned, he fired a second time; that he (the defendant) did not know that Young was at the gate until he saw him that he did not make the remark to which the witness Arnold testified at the time he fired the fatal shot; that, after shooting the deceased, he turned to Arnold and asked him what this meant. The defendant's daughter Mrs. Sallie Cowan was introduced as a witness, and testified that on the night of the killing, as her father left the house, she followed immediately behind him, and saw the killing. Her testimony as to the circumstances of the killing was substantially the same as that of the defendant. There was other evidence introduced which tended to show that, a few months previous to the killing, John Young came to Hollywood, in Jackson county, where the homicide occurred; that for a time he boarded with the defendant; that while at the defendant's house an attachment sprung up between him and the defendant's daughter Mrs. Sallie Cowan; that Mrs. Cowan was at that time married, but had been separated from her husband for several years, but no divorce had been obtained that the deceased and Mrs. Cowan became engaged to be married upon condition that Mrs. Cowan obtained her divorce, and the deceased would furnish Mrs. Cowan's father with proper references as to his character; that thereafter the deceased and the defendant had a difficulty, and the deceased removed his boarding place from the defendant's house to the residence of James Arnold, and the defendant forbade him to see Mrs. Cowan at his home; that after this occurrence Mrs. Cowan frequently saw the deceased at the home of a friend; that the defendant objected to the deceased seeing his daughter, and objected to her marriage until after she had obtained her divorce. Mrs. Cowan, during her examination as a witness, testified that, on the Sunday afternoon before the killing, the deceased, while walking with her in the woods, assaulted her and had carnal knowledge of her; that on the next morning the deceased saw her, and begged her to run away with him at once and be married; that on Monday night before the killing on Tuesday night, she told her father of the deceased having assaulted her. There was evidence introduced for the defendant tending to show that the deceased had made repeated threats to take the life of the defendant, and that these threats had been communicated to the defendant; that the deceased attempted to borrow a pistol from different parties for the express purpose of killing the defendant; and that on the day of the homicide he was seen with a pistol. After the defendant had introduced his testimony and rested, the state again introduced James Arnold, and asked him the following question: "What it was that the defendant said to him at defendant's home, in the presence of Mrs. Cowan, about John Young, the deceased, on the afternoon of the same day of the killing?" The witness answered as follows: "He told me that John Young had told Mrs. Cowan that Miss...