State v. McKinnon

• Decision Date: 23 October 1929
• Docket Number: 202.
• Citation: 150 S.E. 25,197 N.C. 576
• Parties: STATE v. McKINNON et al.
• Court: North Carolina Supreme Court

150 S.E. 25

197 N.C. 576

STATE v. McKINNON et al.

No. 202.

Supreme Court of North Carolina

October 23, 1929

Appeal from Superior Court, Duplin County; Daniels, Judge.

Ed McKinnon and another were convicted of murder in the first degree, and they appeal. No error.

Exceptions and error assignments as to testimony in murder prosecution regarding deceased's loss of pocketbook held immaterial where defendant knew it was lost and found on day of killing.

Assignments of error to testimony in murder prosecution describing man in city before murder held immaterial, where witnesses identified defendant and weapon.

D. M Jolly, of Kenansville, for appellant McKinnon.

D. L. Carlton, of Warsaw, and Murray Allen, of Raleigh, for appellant Johnson.

D. G. Brummitt, Atty. Gen., and Frank Nash, Asst. Atty. Gen., for the State.

CLARKSON J.

The defendants were convicted of the murder, in the first degree, of J. H. Boney, and sentenced by the court below to be electrocuted. The state's evidence tended to prove that J. H. Boney was a strawberry grower, 66 years old, living near Tin City, in Duplin county. He had a great many negro strawberry pickers who came from nearby places to pick strawberries, among them the defendant Ed. McKinnon. He furnished the pickers houses to live in. On Thursday, April 25, 1929, J. H. Boney was discovered dead about 11 o'clock at night, at the rear end of his packhouse or barn, about 25 yards back of his house, face down in a mud hole. No pocketbook was found on him. He had $6.60 in change in his pocket--two or three bills and some silver. "When found he had been dead about two or two and a half hours." He was struck six times, first across the head, and cut in the head about 3 1/2 inches and struck on the back and another cut about 3 1/2 inches on the back of the head, both jaws were struck on each side, and he was struck on the neck and across the arm. There was not a whole bone in his head. The physician who examined him said: "The wounds were made with a blunt instrument--a blunt smooth instrument, in my opinion. It could have been made with a stick like this," the stick introduced in evidence found near the body with hair and blood stains on it.

The evidence to connect two being present when the crime was committed: About 30 feet from the body a stick was found where it was thrown in some dog fennel which was holding it up, with Boney's hair on it and stains of blood. "Tracks led from the body in the direction of the stick, one with shoes and one with rubber boots, two men's tracks. After passing the tracks led across the edge of the strawberry patch" towards the shanty where McKinnon stayed. Did not go with the path, "but went across the field four feet apart running side by side." The boots admitted by McKinnon to be his, "put one boot in the track and it fit as fine as you ever saw."

The evidence to connect Ed. McKinnon with the crime: Boney had a brown folding pocketbook, like one shown on the trial bought at the same store. On Wednesday before he was killed on Thursday night, he lost this pocketbook in the strawberry patch where Ed. McKinnon and the other negroes were picking berries at the time. It was in evidence that McKinnon asked how much money was lost and was told $800. The pocketbook was found by his son about 3 o'clock in the afternoon, an hour after it was lost. It contained about $800, mostly $20 and $10 bills, and a peculiar gold coin. His son would haul the berries and give his father the money. Boney was seen by his son at 6 o'clock, about dark, 50 or 75 yards from his house, on the evening he was killed, and had the pocketbook in his pocket with a stack of strawberry checks, when his son went with others to the river, about three miles away, to fish. Some of the women pickers stayed in the barn, or packhouse, in the edge of the yard; they lived up stairs, and the stables were underneath. About 200 to 300 yards, almost directly behind the packhouse in the woods, Ed. McKinnon stayed in a shanty--two rooms. The women in one, men in the other. About 6 o'clock the evening Boney was killed, McKinnon was at Hall filling station with a stick in his right hand exactly like the one which was found near the body, which when found had hair and blood stains on it. "I saw him as much as 2 or 3 times with that very stick." He wore at the time overalls, rubber boots, and wide brim hat. Before that day he wore a wide brim hat and a handkerchief around his neck, and the negroes called him ""Cowboy." He was without money that evening, had lost his money and was going to borrow some from Boney, and was seen going in the direction of Boney's house about 6 o'clock in his boots and overalls. Early next morning after the killing, witnesses testified: "Tracks led from the body in the direction of the stick, one with shoes and one with rubber boots, two men's tracks. After passing the tracks led across the edge of the strawberry patch" towards the shanty where McKinnon stayed. Did not go with the path, "but went across the field 4 feet apart running side by side." The boots admitted by McKinnon to be his "put one boot in the track and it fit as fine as you ever saw." The tracks were followed to within 75 or 100 yards of the shanty. Boney was knocked down in a mud hole. Rubber boots were found about 20 steps from where the path led out to the front of the shanty. The woods were back of the shanty and the boot tracks 20 steps from the woods. McKinnon was at the shanty when they were found and said he pulled them off and left them there as he dressed to go to the picture show the evening before. "I turned a boot over with my foot and there was some red clay on it. It looked like blood but it was not blood, but pure red clay from off that hill." McKinnon, on his return from the movie with the negro girls, about 11:30 o'clock that night, was at Boney's and heard the tale of the crime but did not go near the body, but went immediately to the shanty. Witnesses who slept in the shanty said that McKinnon came in the night of the killing, "heard him burst the latch from the door as he came in," and said that Mr. Boney was dead; some one killed him; he did not know who did. "I believe I will leave," and he was advised not to go. When he came in, something was in his hand, "looked like a paper rolled up, it was brown." Another witness said, "It looked like a pocketbook and was the color of that one." He had a black pocketbook in his hand "it was a long one and opened on one side, had no money in it." McKinnon "had a splinter in his hand and fired it when he came in the house." Search was made, and no money or pocketbook was found in the house or on McKinnon, who was arrested early next morning.

A rural policeman testified that defendant Tom Johnson made a voluntary statement to him. "He said he was over in the field adjoining some woods on the Boney farm, seems like it was a fish pond, and said that Ed. McKinnon came on. It was the night of the murder. He followed Ed. McKinnon thinking he had some whisky and when he walked up to Ed. McKinnon in the woods he had five or six piles of money, looked like $100.00 to the pile. He asked him where he got it and McKinnon said he got it off his boss man and said McKinnon promised to give him some if he would not tell it, and about that time there was a rustle in the bushes and McKinnon thought somebody was coming and grabbed it and got all but one pile and he, Tom Johnson, grabbed the other pile and put three $10.00 bills in his socks and carried the other and put it in his trunk and then he heard the officers were going to search the house and he was advised by George McCray to move it out and he moved it out and put it in a pile of stove wood near the house and when he went back for it it was gone. He said that George McCray was the only one who knew where it was. I (the rural policeman) asked him for the gold money and he said that after he found out they were looking for it he decided that he had better throw it away and threw it in a branch near the house. Tom (Johnson) said he was lying on the ground with the other money when McKinnon ran and that he picked up $90.00 in all."

Evidence to connect Tom Johnson with the crime: He did not work for Boney, but picked strawberries a week and a half on another nearby farm. He had no money and left the next day after the killing, after paying his employer $1 he had borrowed from him. "Tracks led from the body in the direction of the stick, one with shoes and one with rubber boots, two men's tracks. After passing the tracks led across the edge of the strawberry patch" towards the shanty where McKinnon stayed. Did not go with the path "but went across the field 4 feet apart running side by side." The boots admitted by McKinnon to be his "put one boot in the track and it fit as fine as you ever saw." Johnson testified that he saw McKinnon "over in the edge of the field adjoining some woods on the Boney farm." Got some $90 in all. He threw the piece of gold coin away. Boney's daughter testified this was a peculiar coin given her father and one like it given her, while on a trip through Maryland, with a Bible verse on it like the one shown in evidence. Witnesses testified to the peculiar make when seen in Johnson's possession and like the one Boney's daughter had and shown in evidence. A witness testified: "I live at Lumber Bridge and know Tom Johnson. I picked berries for Mr. Boney, left on Monday night before he was killed on Thursday night. I saw Mr. Boney with a gold coin like that, kept it in his pocketbook, brown folding book, like that one you have. On Friday night Tom Johnson came to my house at Lumber Bridge. My husband and I had retired. Tom Johnson came there about 3 o'clock Friday night and said 'It's on at Tin City....