Kiernan v. State

• Decision Date: 29 January 1919
• Docket Number: (No. 4747.)
• Parties: KIERNAN v. STATE.
• Court: Texas Court of Criminal Appeals

208 S.W. 518

KIERNAN v. STATE.

(No. 4747.)

Court of Criminal Appeals of Texas.

January 29, 1919.

Appeal from District Court, Bexar County; W. S. Anderson, Judge.

C. J. Kiernan was convicted of murder, and appeals. Reversed and remanded.

Cobbs & Cobbs and Wm. C. Church, all of San Antonio, for appellant.

E. B. Hendricks, Asst. Atty. Gen., for the State.

LATTIMORE, J.

Appellant was charged with murder of his 20 year old son, and this is his second appeal. See 190 S. W. 165. The killing was done with a pistol, and occurred at the home of appellant and deceased in the afternoon.

No one testified as an eyewitness to the killing, but it is made clear from the record that appellant had armed himself with a pistol, and had sent word to his son not to come home on the fatal afternoon; that if he did he would be killed, but deceased did come, and when the two met in the house the son was shot, dying instantly. The only cause for such conduct on the part of appellant appears from the testimony of his wife, who was the mother of deceased. After testifying to the condition of her husband's mind and health for years, and many of his acts and words, and that he was subject increasingly to what she called "spells," she said:

"The morning of the trouble I called John to breakfast. I always get up and get breakfast myself. I called John first because he had to go out first. I didn't call Mr. Kiernan. I called John first, and had his breakfast on the table. As I put his lunch up, he always carried lunch to work. When I put his lunch up, I took a cup of coffee and went to the front gallery and sat down there; in the meantime his father had gotten up and gone to the bathroom. After calling John to breakfast, I went back to the kitchen and put up his lunch, put up John's lunch; then I put breakfast on the table for the family, so they could get in and eat when they got ready. After getting breakfast on the table and John's lunch put up, I took a cup of coffee and went on the front gallery, as I usually do in the morning, because I never eat early breakfast. I was sitting out there. I wasn't thinking any more about it. I knew the father was up, and the boys getting ready to go to work, and the other members of the family also getting up. The first thing I knew John came out of the house, and I noticed when he came out he was a little excited. Mr. Kiernan told me John was trying to run the house, and he wouldn't have it that way, something about slamming the door. That afternoon Mr. Kiernan came back home late. He did not come to dinner that day. It must have been about 5 o'clock when he got home. He came to the back door with a pistol in his hand, and told me, if I didn't want a tragedy there, not to let John come home that evening. I told him I had sent him word not to come by his sister and brother, but I would go and call him myself. I had no telephone in the house at the time. I went to a drug store down below the house, and telephoned John not to come home. I told him that Mr. Kiernan had a pistol, and I insisted that he not come home. He first said he would come; then I told him what trouble it might lead to, and he said: `What shall I do.' I says: `I don't know, John; wait until to-morrow anyway, until your father gets this spell off. I think then you can come back.' I also said: `Go ask some officer; they can give you advice better than I do. Don't by any means come home, but, if you should come, come in the back way.' He said: `I can't come in the back way.' I said: `Mr. Heffner will let you come in his back...