State v. Anna L. McKenzib

• Citation: 108 W.Va. 208
• Decision Date: 19 November 1929
• Docket Number: (No. 6441)
• Court: Supreme Court of West Virginia
• Parties: State v. Anna L. McKenzib

108 W.Va. 208

State

v.Anna L. McKenzib

(No. 6441)

Supreme Court of Appeals of West Virginia.

Submitted November 6, 1929.

Decided November 19, 1929.

CriPvIINAL Law Circumstances Raising Strong Suspicion of Guilt or Guilty Knowledge, but Not Proving Guilt Beyond Reasonable Doubt, Will Not Sustain Conviction.

"Proof of facts and circumstances which arouse strongsuspicion of guilt or guilty knowledge of a crime on the part of the accused, but which do not prove beyond a reasonable doubt his criminal agency in its commission, will not sustain a verdict of guilty." State v. Dudley, 96 W. Va. 481.

(Criminal Law, 16 C. J. § 1570, p. 7GC, N. 78.)

(Note: Parenthetical references, by Editors, C. j. Cyc. Not part of Syllabi.)

Error to Circuit Court, Webster County. Anna L. McKenzie was convicted of murder, and she brings error.

Reversed; verdict set aside; new trial awarded.

W. S. Wysong and W. B. Orfutt, for plaintiff in error. Howard B. Lee, Attorney General, and B. A. Blessing, Assistant Attorney General, for the State.

Lively, Judge:

The defendant, Anna L. McKenzie, was jointly indicted with one Seymour Smith for the murder of Thomas McKenzie, the defendant's husband. Mrs. McKenzie was tried separately, found guilty of murder iu the first degree, and was sentenced to life imprisonment. Smith was tried at a later date and was found guilty of second degree murder.

The controlling question in this case is raised by the assignment of error that the verdict of the jury is contrary to the law and the evidence. This necessitates a detailed statement of the facts. The evidence is entirely circumstantial. The defendant, a woman 43 years of age, and Thomas MeKenzie, the deceased, about 55, had been married for over 19 years and were the parents of nine children ranging in ages from eighteen months to eighteen years. They had originally lived in Maryland, but shortly after their marriage they moved to West Virginia, where the husband, a lumber contractor, engaged in that work in various lumber camps. The defendant acted as his camp cook. A number of years before the death of McKenzie, they had purchased and moved to a farm of about 200 acres situated seven miles from Webster Springs, subsequent to which, McKenzie devoted part of his time to the farm, and part to lumber operations on Williams River. Just a year or so before his death, he had borrowed money to build a new residence on the farm, which was almost com-pleted by the fall of 1927. The family cooked and ate their meals in the old house which was within a few feet of the new one, but slept in the new residence.

During the latter part of September, 1927, while McKenzie was working temporarily at a lumber operation on Williams River, a message was sent to him through Smith, co-indictee of the defendant, requesting that he return home to execute a paper necessary to secure defendant's participation in her father's estate in Maryland. In compliance with this request, McKenzie returned home on Tuesday, September 27, 1927. The paper was executed and acknowledged, and was sent to Maryland. McKenzie continued at home doing some needed work on the farm. On Friday, September 30, Smith, a young man about 28 years of age, who was employed as a conductor on a lumber train at Three Forks, arrived at the McKenzie home. He complained of a toothache, and declared his intention of going to Webster Springs the next day for the purpose of having the tooth extracted. Smith had for a year or more been the suitor of Ruby McKenzie, the sixteen-year-old daughter of the defendant, and made frequent week-end visits. They were engaged to be married. At the time of Smith's arrival on Friday afternoon, Mrs. McKenzie was engaged in painting a portion of the new house. She did not engage in conversation with him, but Ruby, his fiancee, greeted him and escorted him upstairs to her bedroom which was customarily occupied by Smith on his visits to the home. On these occasions, Ruby slept down stairs. Smith was apparently suffering severe pain, and after talking with him a few moments, Ruby left the room, and continued with her household tasks. McKenzie was absent from the house at this time. Smith fell asleep and was awakened at supper time wrhen he joined the family for that meal. He partook rather lightly of the evening meal, waited until the rest of the family had finished, and after engaging McKenzie in conversation for a half hour or more, retired to his room. In accordance with the custom of the family, they all retired rather early; on that particular night, about nine o'clock. No one was present at the house that night except Smith and the members of the McKenzie family. Smith occupied the room directly at the head of the stairs, McKenzie occupied a room near Smith's room and the defendant a room farther down the hall. Several of the younger boys of the family occupied another room on the same floor. Ruby and her sister, Rhoda, slept on the lower floor.

From the evidence of the defendant, it appears that she and her husband arose at 5:30 o'clock the next morning and went to the kitchen in the old house. Ruby corroborated her mother in that statement, and testified that she heard her father and mother come down the stairs. McKenzie told defendant he was going to the barn to look after the horses. After having gone a short distance he returned, and said that he did not need the lantern he was carrying as it was getting light enough for him to see without it. He set the lantern down and started again on his mission. Mrs. McKenzie busied herself with the preparation of breakfast and later called the children when the meal was ready. The testimony shows that Smith joined the family at this time and ate breakfast with them, although Smith's evidence is to the effect that he and Ruby ate breakfast alone that morning. Between seven and eight o'clock, and after breakfast was over, Smith left for Webster Springs to have his tooth extracted. McKenzie had failed to return to the house, and Smith remarked before departing that he would stay if he thought he could be of any assistance; that in all probability McKenzie would appear very shortly. McKenzie's absence did not seem to have caused great anxiety in the minds of the members of the family until about nine o'clock when the defendant became worried, and fearing that something may have happened to him, she and the children undertook to search for him. The defendant testified that McKenzie had been worrying considerably about his ability to care for the children the coming winter by reason of the debt created in the building of the new house, and had appeared very moody on numerous occasions. A search of the farm, and inquiries made at the neighbors' houses, failed to reveal any trace of McKenzie's whereabouts. Finally, about four o'clock of that afternoon, two of the smaller children, at the mother's direction, went to a laurel grove near a cliff of rocks about three hundred or more yards from the house. Upon arriving at that place, Ehoda, a girl about twelve years of age, and one of her younger brothers, discovered her father's body hanging in an upright position in some laurel brush along the side of the cliff. The children notified their mother and took her to the father's body. Neighbors were summoned and the sheriff, the prosecuting attorney, coroner and other officials began to arrive on the scene about seven o'clock that evening. An examination revealed that the neck of the deceased was supported in the forks of two laurel bushes coming together by the side of the cliff. One hand of the deceased was grasping the laurel bush. A two-bitted ax, belonging to McKenzie, the blades and the handle of which were covered with blood, was found a short distance from the body. There was no blood upon the ground beneath the dead man. The head of the deceased was just a foot or two from the top of the cliff, his body was facing towards and resting against it. The distance from the head of the deceased to the ground was about nine feet four inches. McKenzie was about six feet three inches tall, and weighed about 180 pounds.

According to the evidence of witnesses appearing upon the scene after the discovery of the body, no one touched the ax until the arrival of the officers. About twelve o'clock that night a coroner's jury removed the body from the laurel grove and carried it to a room on the lower floor of the McKenzie house. An examination revealed that at the time of his death, McKenzie was wearing a shirt and overalls, without underwear. He had on a felt hat, and a pair of lumberman's boots which were loosely laced. There was some evidence that the condition of the hobnails in his shoes apparently indicated that they had not been recently used. Upon the removal of the hat from the head of the deceased a chestnut burr and some leaves were found on the inside thereof. There were two main wounds on the head of the deceased, one in the fore part and one in the rear. The wound on the fore part of his head was caused by numerous hacks of some sharp instrument. These...