Kidwell v. State

Thompson, J., delivered the opinion of the Court. William Theodore Kidwell, together with Carson W. Sullivan, Glen A. Sullivan and William Nelson, was indicted for the murder of Raymond Howard on July 10, 1966. Kidwell was convicted of murder in the second degree by a jury. He was sentenced to a term of 15 years.

On appeal he raises three contentions which will be set out and discussed hereinafter. The story of this senseless crime begins when Joseph Stanley Franklin and James Johnson, two Negro youths, went to the Fifth Avenue Cafe to purchase some gin. Franklin went inside while Johnson waited outside talking with Clyde Wandley Toney, Nelson’s cousin. Kidwell, Nelson, and one of the Sullivans walked around the side of the building and someone said, “hit that nigger.” At this point Kidwell produced a knife and started towards Johnson who ran off down the road.

Franklin testified that after he had come out of the bar Johnson wasn’t there, and he was approached by Kidwell who said, “Well, if you knew what I knew, you’d run on up the road where your buddy went to.” Franklin turned around to walk ¹⁰⁷ away when he was grabbed by Glen Sullivan. He tried to break away, and as he did Kidwell reached out with a knife and cut him. Franklin ran off pursued by the four accused and some other “white men,” running through the Hess gasoline station’s lot out to Route 175 where he hailed a passing car and left the area. The deceased, Raymond Howard, who was accompanied by Walter Hall, Louise Hill, and Delores Woodson, all Negroes, had stopped at the Hess gasoline station.

As they were about to leave the Hess station, they observed Franklin running across the Hess station’s lawn being chased by a number of “white men.” The deceased drove out of the station on to Route 175, pulled off to the shoulder of the road, stopped and got out of his car. His three companions remained in the car. He proceeded to the front of his car and spoke to the men who had been chasing Franklin. He was thereafter stabbed and beaten, and when he attempted to escape by running toward the Hess station, he was knocked to the grass and again assaulted.

As a result of the assault, he received at least five knife wounds, the most significant being a “deep sucking chest wound” and a “deep penetrating-type w'ound in the right lateral abdomen, just below the edge of the liver” which caused “massive bleeding” and “internal bleeding.” The details of the fatal assault varied somewhat with each witness but the jury could have found that: when the car stopped and the deceased got out somebody told him “to get back into the car” to which he replied “nobody could make him.” Someone yelled “hit him” and one of the Sullivans stabbed him in the back. The deceased ran to a grass spot closer to the filling station and Kidwell knocked him down after which he was attacked by the four defendants and possibly others. Kidwell testified, denying that he had a knife, denying that he cut Franklin and denying that he assaulted Howard. Kidwell alleges