
    KIERNAN v. STATE.
    (No. 4747.)
    (Court of Criminal Appeals of Texas.
    Jan. 29, 1919.)
    1. Criminal Law <5&wkey;1159(2) — Verdict Not Supported by Evidence — Review.
    The court on appeal will not allow a verdict of guilty to stand, where it is clearly against the overwhelming weight and preponderance of the testimony.
    2. Homicide <&wkey;27 — Sanity.
    The killing by defendant of his own son without provocation worthy of the name should call for the closest scrutiny of his mental condition.
    3. Criminal Law <&wkey;48, 1159(5) — Sanity-Review.
    Sanity is a condition precedent to guilt, and when numerous and apparently credible witnesses agree that defendant was insane, and there is no contradiction, the court on appeal cannot allow conviction to stand.
    Appeal from District Court, Bexar County; W. S. Anderson, Judge.
    G. 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. Kier-nan 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: T 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: T can’t come in the back way.’ I said: ‘Mr. Heffner will let you come in his back lot.’ He said: ‘All right, mamma; I will not give you any trouble; I will do as you say.’ That led me to believe he would not come home. I stayed on the back gallery to watch for him, I thought, if he came that way, I would see him and send him back, if I could see him before he got in. Mr. Kiernan’s condition was extremely nervous at that time; he had very little to say and had absolutely no control over himself. I put some supper on the table, and called the children and father into supper. The babies came in, and the father would not eat anything; came and sat in the dining room door and talked to me. I remained on the back gallery, and the babies were eating their supper, and Mr. Kiernan was talking to me through the screen door, through the dining room leading to the back gallery. He turned and walked into the room. I don’t know what happened. I heard the pistol fired is all I can say.”

No other witness gave any testimony as to the cause or motive for the difficulty. It was not contended by counsel for the appellant on the trial that he did not do the shooting, and apparently the “only defense was that of insanity.” The brother, daughter, and wife of appellant testified to many acts of his, extending over a period of many years, showing that his mind was unsound, and leading them to the conclusion that he was insane, as each of them testified he was at the time. James Young and Thomas L. Conroy, who had known appellant for years, detailed his conduct, and swore that in their judgment he was insane. Five reputable physicians, including Dr. Francis White, of the Southwestern Insane Asylum Staff, testified that appellant was insane; one or more of them stating that on a former trial they had testified that they believed him sane, but had changed their minds since. The only other witnesses introduced were as to facts immediately attendant upon the killing, or just before or after same, and none of them were asked as to appellant’s mental condition. The state did not put on a witness to prove the sanity of appellant, nor any witness to impeach any of the defense’s witnesses who swore appellant was insane.. The statement of facts was prepared by the trial court, who certified that the attorneys for the respective parties had failed and been unable to agree thereon, and we are sure it is a fair statement.

We are loath to disturb the case on the finding on the facts, and do not believe we should do so in cases where there is merely conflict of testimony; but when we are convinced that the verdict is clearly against the overwhelming weight and preponderance of the testimony, we do not feel at liberty to close our eyes to that fact out of deference to the verdict of the jury. The unnatural and horrible character of this man’s act, killing his pwn son, apparently without provocation worthy of the name, as disclosed by the record, should call for the closest scrutiny of his mental condition before he should be convicted. Our merciful and just law makes it a necessary condition precedent to guilt that the act must have been that of a sane man, and not that of one irresponsible, and when all the witnesses on that point, and they are numerous and apparently credible, agree as to the fact of appellant’s insanity, and there is absolutely no contradiction of that fact in the record, we cannot allow the conviction to stand.

The judgment is reversed, and the .cause remanded. 
      (&wkey;>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     