State v. Palmer
| Decision Date | 13 April 1949 |
| Docket Number | 223 |
| Citation | 52 S.E.2d 908,230 N.C. 205 |
| Parties | STATE v. PALMER et al. |
| Court | North Carolina Supreme Court |
It was alleged in one indictment that Jim Palmer murdered Otis McNeill, and in another that he was an accessory after the fact to the murder of Otis McNeill by an unnamed principal felon. Foxy Palmer, who is a son of Jim Palmer, was charged in a third indictment with being an accessory after the fact to the murder of Otis McNeill by his father. The three cases were tried together under an order of consolidation entered by the court over the objection of the accused.
Certain matters were not in dispute on the trial.
The accused and the deceased resided in the vicinity of Tempting Church in Lee County. Tempting Church is a building devoted to Public worship standing 60 feet north-east of the Loop Road, a soil surfaced highway, about five miles west of Sanford as a crow flies. This road has both of its termini in the northern edge of a highway, which runs from Sanford on the east to Carbonton on the west and which is known locally as the Carbonton Road. This highway is bitumized from Sanford to a point two-tenths of a mile east of its intersection with the eastern end of the Loop Road, and has a gravel surface from this point to the Plank Road, which runs north and south and crosses the Carbonton Road virtually at right angles some three miles to the westward. The northern prong of the Plank Road is either of gravel or sand-clay, and runs northward from the Carbonton Road to Gulf, about four miles distant, where it intersects with United States Highway No. 421. It crosses Deep River, a natural watercourse, by bridge approximately half a mile south of Gulf. It is not possible to travel by vehicle from any point on the Loop Road to any other place without traveling on the Loop Road and either the eastern or the western branch of the Carbonton Road.
The Loop Road is of a total length of approximately a mile and a half. It winds in a northwesterly direction from its eastern terminus on the northern edge of the Carbonton Road, passing in succession the home of James McMillan, Tempting Church the residence of Foxy Palmer, and the dwelling and store of Jim Palmer. It then curves abruptly, and proceeds southwesterly by the habitation of Andrew Woodard and Mrs. E O. Wakefield to the place where its western end coalesces with the northern edge of the Carbonton Road. Tempting Church is not visible from the home of James McMillan to the southeast on account of intervening woods, but it can be seen from the dwelling of Jim Palmer standing on the south side of the Loop Road 500 yards to the northwest. A store building where Jim Palmer sold groceries, is situated across the Loop Road from his dwelling. The residence of Foxy Palmer is located between Tempting Church and his father's home but its exact distance from these structures is not disclosed by the testimony.
The house, where the deceased, Otis McNeill, resided, is in a cul-de-sac about half a mile north west of the Loop Road. The only means of egress is a path leading to a dead-end road which passes at least six residences before merging with the northern edge of the Loop Road just west of the habitation of Andrew Woodard. Intervening woodlands render the Otis McNeill home invisible to persons at the Jim Palmer place.
Otis McNeill was about 5 feet, 8 inches in height, and weighed about 160 pounds. He was last seen alive by the State's witnesses about 6:00 o'clock on Monday morning, March 15, 1948, 100 yards from his home walking south along the dead-end road which coalesced with the Loop Road west of the Andrew Woodard home. He was carrying a walking stick, and wearing an undershirt, an ordinary shirt, pants, coveralls, a blue coat, a felt hat, shoes, and overshoes. On the fifth day thereafter, namely, at 5:30 P.M. on Saturday, March 20, 1948, his lifeless body was found afloat in Deep River south of Gulf near a place where the Plank Road runs within 25 or 30 steps of the river for a distance of approximately 300 feet. This spot is seven miles via the Loop Road, the Carbonton Road, and the Plank Road from Tempting Church, and about four miles as a crow flies from the Otis McNeill home.
The corpse was marked by five bullet wounds from a firearm which was never discovered, and had evidently been sunk in the river by weights attached to chains which were fastened around the neck and feet. An absence of water in the lungs indicated that the deceased had been shot to death before his body was put in the river. An examining physician had no opinion 'about how long the body had been in the water,' but concluded from its swollen and decomposed state that the deceased 'had been dead six or seven days. ' When discovered, the corpse 'was wrapped in a quilt,' and all clothing was present, except the blue coat. The shirt and undershirt were perforated and bloody.
Both the prosecution and the defense presented testimony of great volume to sustain their respective positions as to the guilt or innocence of the accused. Indeed, the record in its entirety covers 381 pages. But no direct testimony was adduced on the trial as to when, where, or by whose hand Otis McNeill came to his death, or as to the whereabouts of his body before it was discovered in Deep River. The State bottomed its case on the theory that Otis McNeill was fatally shot by Jim Palmer in the woods directly across the Loop Road from Tempting Church soon after 6:00 A.M. on Monday, March 15, 1948, and that his body lay in a 'pressed down' place in such woods 92 feet south of the edge of the Loop Road until sometime between 7:30 and 8:00 P.M. on Wednesday, March 17, 1948, when it was removed by Jim Palmer and Foxy Palmer and hauled by them in the trunk of Jim Palmer's blue Kaiser automobile by way of the Loop Road, the Carbonton Road, and the Plank Road to Deep River, where they submerged it in the water. To support this theory, the State relied on the circumstances set forth below.
Jim Palmer and Foxy Palmer had difficulties with the deceased in December, 1947, and January, 1948, resulting in charges of assault which were pending against them when the deceased disappeared. Moreover, Jim Palmer stated several weeks prior to the homicide that he would not harm Otis McNeill 'for anything in the world', but that others would kill him 'to get him out of the way the first chance they got' on account of a suspicion that he was reporting liquor law violations to the Sheriff.
The area southwest of the Loop Road in the immediate vicinity of Tempting Church belongs to the McMillan family, and is covered by trees and underbrush extending practically to the edge of the road. James McMillan, a witness for the State residing 450 yards southeast of Tempting Church, testified that he arose about 6 A.M. on Monday, March 15, 1948, and soon thereafter heard six shots, which 'sounded like a pistol' and 'seemed to come from the direction of Tempting Church. ' Sometime after 8:00 P.M. on Wednesday, March 17, 1948, searching parties examined the road and woods near Tempting Church. Two sets of shoeprints without distinctive features, one consisting of 'big tracks' and the other of 'overshoe tracks,' were noted directly across the Loop Road from Tempting Church, leading southward from the road up a clay bank to the edge of the woods at the top of the bank, where they ceased to be observable. The searchers proceeded in a southerly direction from this point into the woods and found Otis McNeill's blue coat, and a spot where 'it looked like leaves had been pressed down over a space 2 1/2 or 3 feet wide and about 5 or 6 feet long. ' The blue coat was 37 feet south of the edge of the Loop Road, and the 'pressed down' spot was 92 feet south of the same place. Five days later Otis McNeill's walking stick was found 6 feet from the place where the blue coat had lain. The original searchers noted that the coat was 'sprinkled with leaves' and that 'two big footprints' without distinguishing peculiarities were impressed in a rotten log beside the 'pressed down' place. After the body of the deceased had been removed from Deep River, to-wit, on Monday, March 22, 1948, the State's witness, Odie McBryde, noted a single 'overshoe track' on the clay bank on the southwest side of the Loop Road directly opposite Tempting Church. He thereupon fitted an overshoe from the body of Otis McNeill into this track, and found that 'it was a good fit.'
The testimony of the State relating to these matters was to the effect, however, that the coat was intact and free from bloodstains when it was found; that nothing noteworthy was seen at or near the 'pressed down' spot except the 'two big footprints' in the rotten log; that no other tracks were discovered in the woods southwest of the Loop Road; that no visible trails of any character connected the 'pressed down' spot with any other place; that rain fell in the locality in question at least twice between 6:00 A.M. on Monday, March 15, 1948, and 7:30 P.M. on Wednesday, March 17, 1948, and at least once between the last named hour and Monday, March 22, 1948; that numerous peace officers and residents of the countryside tramped over the entire area in the vicinity of Tempting Church between 8:00 P.M. on Wednesday, March 17, 1948, and Monday, March 22, 1948; that both the overshoe of the deceased and the single 'overshoe track' into which it was fitted on Monday, March 22, 1948, lacked distinctive peculiarities; and that there was nothing to identify such single 'overshoe track' as one of the 'overshoe tracks' found on the bank on the night of Wednesday, March 17, 1948.
About 7:30 P.M. on Wednesday, March 17, 1948, Henry McNeill, the sexton, who was accompanied by his wife, Sarah McNeill arrived at Tempting Church and...
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