The opinion of the court was delivered by: T.B. Greneker, Acting Associate Justice.
December 16, 1955.
The appellant Henry Lee Boone was tried before Honorable E.H. Henderson and a jury at the November, 1954 term of the General Sessions Court for Cherokee county and was convicted of murder, after a trial lasting two days. No mercy was recommended. From that conviction and sentence of death he now comes to this court. Motions were made for the direction of a verdict of not guilty and for a new trial, both of which were refused, and it is therefore necessary to review the evidence.
The exceptions as set out in the transcript of record are as follows:
2. That it was highly prejudicial for the Solicitor to cross examine the appellant relative to his relationship with white women.
The testimony reveals that the deceased, Mrs. Agnes Webb, was found on August 21, 1954 in the nighttime, lying in the Quarter Round road in Cherokee County, in a dying condition, with a deep cut extending from the left ear downward to an area under her chin, that the wound was "wide open" and probably one and one-half inches deep; a small wound on the left arm, a wound over each breast, and "a deep stab wound into the major vessels at the base of the heart". As a result of these wounds Mrs. Webb died while being transported to a hospital in Spartanburg County.
On September 2, 1954, twelve days after the death of Mrs. Webb, the appellant, a Negro, then 31 years of age, was arrested. Boone, who had completed the fourth grade and who had served in the United States Army, seems to have come to Cherokee County, after having lived at various places in North Carolina, and had been in the county for about six weeks prior to his arrest. During this time he had been cutting pulp wood for Wallace Feagin, a white man, and living in a room on the back porch of Feagin's house. The Feagin home was near the "Quarter Round Road" where the deceased was found lying in a pool of blood. Appellant admits that he went to the Webb home on Friday, prior to date of Mrs. Webb's death, and knew that her husband was going to Tennessee on a fishing trip that weekend, and would not be at home the following Saturday night.
Prior to the witness Strom being allowed to testify relative to the statement, he was directly examined by the Solicitor and cross-examined by defense counsel. At the end of this examination the trial judge held: "The testimony will be admitted in evidence. I make that ruling. It will be admitted. I leave it to the jury in the final analysis to pass upon it and all other facts in the case".
The substance of what Lieutenant Strom related that Boone freely and voluntarily told him is, that Boone, in the company of others, went to the home of Grover Webb on August 20th to get a chain saw sharpened. That on the way back he was told that Grover Webb said he was going to Tennessee on a fishing trip the next day. On Saturday, with others, he cut pulp wood until about noon and then came back to Feagin's house, then he, with others, went to a bootlegger's house and each got a pint of whiskey. He drank some of his whiskey and about 8:30 or 9:00 o'clock he had sexual intercourse with "Miss Virgie" and after that, he walked down the road, until he saw a woman coming down the road. Near an old house he got a piece of iron and then went back down the road to where the woman was walking and spoke to her; that she asked him what he was doing speaking to her, that she jumped on him and fought him; he hit her with the iron in the chest and did not know "how many other places", then threw the iron away and went back to Feagin's house.
Appellant alleges error on the part of the trial court in admitting this testimony contending that it was not voluntary but was induced by "that fellow in the lie tester". "That fellow" has not been otherwise identified. Appellant had the services of two energetic and able counsel. They most probably knew what their client was going to say as to his "confession" as his defense throughout was based on the theory that such statement or "confession" was not voluntary or true and in fact that he knew nothing of the murder nor was he in anyway connected with it. There was no reason for the State to anticipate this testimony. Had there been such a person as "that fellow" it was certainly known to the appellant before the trial. The statement related by the witness Strom was testified to have been made freely and voluntarily on September 8th, the trial was held more than two months thereafter and there is nothing in the record to indicate that any steps were taken to bring "that fellow", if any such person existed, as a witness. Upon cross examination of appellant an effort was made to have him identify or tell who "that fellow" was. The question of a confession being voluntary and free is one which is first addressed to the trial judge, and if an issue of fact arises relative thereto, it would be admitted and the jury, under proper instructions, allowed to make the ultimate finding as to its voluntary character and as to its truthfulness, the jury being the final arbiter of such facts. State v. Livingston, 223 S.C. 1, 73 S.E.2d 850, and many other decisions cited therein. The court below followed this approved procedure. It is noticed that the appellant at no time complained that he was mistreated or threatened or made to do anything by force or fear and under examination by his own counsel he was asked:
"Q. Did they mistreat you in any way? A. No, sir."
And on cross examination:
"Q. Let me ask you one thing, did the officers beat you while they had you? A. No, sir.
"Q. They gave you some clothes, they fed you, gave you cigarettes, and treated you all right, ...