Kennedy v. State

• Decision Date: 29 January 1947
• Docket Number: No. 23428.,23428.
• Citation: 200 S.W.2d 400
• Court: Texas Court of Criminal Appeals
• Parties: KENNEDY v. STATE.

Page 400

200 S.W.2d 400

KENNEDY v. STATE.

No. 23428.

Court of Criminal Appeals of Texas.

January 29, 1947.

Rehearing Denied March 26, 1947.

Commissioner's Decision.

Appeal from District Court, McCulloch County; A. O. Newman, Judge.

Alvin H. Kennedy was convicted of murder, and he appeals.

Judgment reversed and cause remanded.

Sam McCollum, of Brady, and Gib Calloway, of Brownwood, for appellant.

Mark Calloway, Dist. Atty., and J. Edward Johnson, Sp. Pros., both of Brownwood, and Ernest S. Goens, State's Atty., of Austin, for the State.

DAVIDSON, Judge.

For the murder of Rice Willey, his brother-in-law, appellant has been condemned to life imprisonment in the State penitentiary. The bail feature of this case is reported in 190 S.W.2d 825.

The questions presented for review render necessary an extended statement of the facts.

Benton Willey died in 1931 and left surviving him his widow, Mrs. Julia Willey, seventy-nine years of age at the time of the trial, and five children, viz., Rice Willey (the deceased), Miss Julia Willey, Jennie Kennedy, wife of appellant, Oma Jay, wife of Bud Jay, and Adelia Ward, wife of Benton Ward. At the time of the death of Benton Willey, he and his family resided upon a one-hundred-sixty-acre tract of land known as the home place, which was community property. Mrs. Willey owned as her separate property two hundred eighty-one acres of land situated about one-half mile from the home place. Deceased, though single, was not living at the home of his parents at the time of his father's death. There is a suggestion in the testimony that he and his father did not get along very well. After the father's death, deceased moved into the home of his mother and took charge of her business. Deceased continued to reside as a tenant upon the home place until his death. Appellant and his family resided as tenants upon the two-hundred-eighty-one-acre tract.

The first difficulty between deceased and appellant arose in 1940 and was brought about relative to terracing of the two hundred eighty-one acres. This difficulty ended in a fist fight in which deceased received a cut in the head. Appellant apologized, but deceased made the statement that he would never forget it. At least a partial reconciliation appears to have been effected. The next difficulty occurred in 1943 or two years before the killing. This arose over the threshing of the rent maize on the two hundred eighty-one acres. It appears that appellant had a crew threshing his crop and was having the rent threshed at the same time. Deceased appeared and ordered the threshing stopped.

According to the witness Lawson, the deceased, after the threshing had been stopped, made the statement to him that he was going to kill the appellant. About a year thereafter, which would be a year before the killing, Lawson communicated to appellant the threat deceased had made by saying to him, "I have been told that Rice has said he would kill you." In that conversation appellant said to Lawson, "I am going to see to it that Rice don't beat my wife out of her part of the estate."

The witness Woolems testified that about six weeks prior to the killing, he and his wife visited in the home of deceased with the intent of going on a fishing trip; that on that occasion deceased made mention of the relation existing between him and the appellant and that in that connection said, concerning appellant, "Mine and brother's trouble is not all over yet, and when the smoke clears away one of us is not going to be here," and further said, "All my folks have lived to be old." The witness further testified that on that occasion he saw a large revolver and a bottle of whisky in the glove compartment of deceased's car. Two days thereafter, Woolems told appellant what the deceased had said.

Following the threshing incident, deceased quit speaking to the appellant and continued in that attitude until his death.

It was decided by the family that, as a result of the threshing incident, the deseased and appellant should thereafter pay an annual cash rental for the place rented by each. Appellant's rent was fixed at $600 and that of the deceased, at $300.

Appellant and his wife had lived on the two hundred eighty-one acres for twenty years. It appears to have been generally understood—at least by some members of the family—that, in the event Mrs. Willey decided to sell that tract of land, the appellant and his wife wanted to buy it and that they should have the refusal to purchase. On October 6, 1945, or ten days before the killing, appellant went to Mrs. Willey, the mother, who at the time was living with the daughter, Julia, at Brady, Texas, to see about renting the two hundred eighty-one acres for the year 1946. He was then informed that about a week prior Mrs. Willey had agreed to sell the two hundred eighty-one acres to the deceased for $47 per acre. Upon appellant's inquiring as to why he could not buy it, he was told by Mrs. Willey that "Rice asked for it first," and that she wanted Rice to have the place.

According to the testimony of Julia Willey, this information made appellant angry and he offered Mrs. Willey $10 an acre more for the place than deceased had agreed to give. Only Mrs. Willey, and the deceased, and Julia Willey appear to have known anything about the agreement to sell to deceased. None of the other children appear to have been consulted. Julia Willey further testified that appellant on this occasion said, "Many tears would be shed," and "It would not turn out like we had planned it," and "Well, I suppose there is nothing left for me to do, but to go out there and see that he does not get it."

It was undisputed that an oil well had been discovered about one-half mile from the two hundred eighty-one acres. The agreement to sell to deceased included all the minerals, while appellant's offer of $57 per acre was for the surface estate only— the minerals to be retained by Mrs. Willey. Regardless of this difference in price, appellant's offer was refused and he was placed upon notice that he would have to relinquish possession of the two hundred eighty-one acres.

Appellant and his wife then began an endeavor to buy the one-hundred-sixty acre home place, where deceased resided. To convey that property, all the children were required to sign the deed. Deceased refused to sell or consider the proposition of selling that place to his sister, Mrs. Kennedy. Appellant and his wife were facing the problem of finding some place upon which to live.

Such was the condition existing when, on October 15, 1945—the day before the killing—Mrs. Kennedy happened to meet the deceased in the road near their home. According to the testimony of Mrs. Kennedy, she stopped him and engaged him in the first conversation they had had for two years. In the course of this conversation she pressed upon deceased the proposition that if he was going to buy the two-hundred-eighty-one acre place, she wanted to buy the home place of one hundred sixty acres and that if she did not succeed in getting that place it was going to be difficult for them to find a place to live. Deceased again refused to sell them that place, saying, "Well, I will not sell Alvin the place for I don't want him around here," to which Mrs. Kennedy replied, "We can leave Alvin out of it, I want the place myself, and just leave Alvin out of it." To this, deceased replied, "I will leave him out; the first time I see him, I will take my forty-five and kill the son of a bitch, and then he will be out of it." With this statement the conversation ended. The threat deceased made to kill appellant the first time he saw him was communicated by Mrs. Kennedy to her husband that night. Such was the condition existing up to the time of the homicide.

It was the State's position, supported by the testimony that appellant, knowing the deceased—who was working at a peanut thresher—would be traveling in his car along a certain road, stationed himself thereon at a point opposite a gate or gap leading into a pasture under the control of appellant, and there waited for deceased to approach; that when deceased drove by, he shot him in the back of the head with a high-powered rifle, killing him instantly.

Appellant testifying as a witness in his own behalf, denied prior knowledge that deceased was at the peanut thresher or that he would be traveling along the road where he had gone to repair the fence or gap into his pasture; that as deceased approached him he made a demonstration towards the glove compartment which caused appellant to believe that he was reaching for a gun with which to carry into execution the threat he had made the day before to appellant's wife as well as other threats communicated and uncommunicated relative to which appellant testified; and that he fired solely and only in self-defense.

According to the State's testimony, the killing was deliberate with malice, and accomplished by lying in wait.

According to appellant's testimony, the killing was justified upon threats and was in self-defense against apparent danger and the acts and conduct of the deceased toward appellant, and the circumstances and relations existing were such that the killing was not upon malice aforethought.

Appellant filed an application for a suspension of sentence.

Witnesses attested his good reputation for being a quiet, peaceable, inoffensive, and law-abiding citizen and also his good reputation for truth and veracity. Witnesses attested the good reputation of deceased for being a peaceable and law-abiding citizen. Whether he was a person likely to carry into execution any threat he might make was not gone into.

The witness H. D. Bradley, upon direct examination, testified to appellant's good reputation for being a peaceable and law-abiding citizen. Upon cross-examination, the State inquired of the witness as to whether he had heard of appellant having had a fight with the deceased and others— some of which incidents the...