Henderson daily dispatch. (Henderson, N.C.) 1914-1995, 1938-04-08
ARGUE NEXT WEEK
FOR PAYNE, TURNER
Recent Famous Smoak Case
Cited in Appeal of Nos.
/ and 2 Badmen
Daily .;ispntch Bureau.
In she Sir Walter Hotel.

Raleigh, April Lawyers for "BilP
Payne and Wash" Turner, North
Cardinals bad men Numbers 1 and 2,
obviously aren't superstitious or
afraid they'll wish bad luck on them
selves.
In the 3S-page typewriter brief
they have filed with the Supreme
Court they cite the recent case Of
State VS. Smoak, from New Hanover,
in their efforts to get new trial for
the admitted killers of State High
way Patrolman Russell Penn. Smoak
was executed about a month and a
half ago for the poison murder of
his young daughter.
The case will be argued orally be-
fore the Supreme Court next week,
having been advanced on the calen-
dar on the States motion.
The condemned mems attorneys
list in their brief assignments of err
ror numbered up to ST. and several
of them are divided into sub-sections
A, B and so forth. Exceptions taken
during the trial of the noted case are
numbered up to 6SS. Counsel signing
the brief are j. Walter Haynes and
the law firm of Jones, Ward and
Jones.
Argument ard +le statement of
questions involved indicate that
plea for a new trial is based on the
contention that Payne and Turner
were tried more on their regulations
as public enemies" and on the
long series of crimes they are reputed
to have committed, after shooting
the patrolmen, than they were upon
the allegation that they shot the Of
ficer 10 death on a lonely Buncombe
side-road.
Among evidence which they COM
plain was improperly admitted is the
testimony of one Estelle Miller to the
effect that Turner, while in hiding
from the law, once said that he
wanted to take his ex-wife to the
eastern part of the state; that he
wanted to strip her and let the mos
quitoes bite her for two or three
days and then beat her to DEATH"
1--WE can conceive of no law that
would permit this evidence" the
brief argues. ut could not be argued
that the prisoners could have a fair
trial under an Indictment charging
them with murder in view of this
kind of evidence. Nothing could have
more prejudicial than for the court
to have admitted evidence to the eff
feet that one of the prisoners, on an
other occasion and a different time,
wanted to torture his ex-wife to death
in order to get rid of her."
Objection is also vigorously made
to admission of details of the minu-
test sort concerning an encounter of
Turner and Bolen Byrd with New
Hanover officers and of the alleged
kidnapping of a Brunswick county
man. The court admitted these state
ments for the purpose of Showing
flight" Defense counsel contend
that inasmuch as flight is admitted
there was no occasion to admit de-
tails of these other crimes except to
prejudice the minds of the jury
against the defendants.
Strenuous objection is also taken to
the admission of testimony by con-
vict guard that Turner, for years be-
fore the killing of Penn, once said he
had no use for officers and that if
he got out and behind a IS "it would
then be on.
Other objections are urged to adj
mission and Identification of articles
found in the car when the defend
ants were taken by Federal G-Men at
Sanford
mo one could contend that the
articles were used in connection with
the homicide or had anything to do
with it, but, of course, the only pur-
pose was to have the jury draw the
inference that they were trying
bank robberies and thieves and to di-
rectly put their character in issue
without directly offering themselves
as witnesses. We cannot conceive
of evidence being more prejudicial
than this line"
Objection was made, too, to prac-
tically all the judges charge to the
jury, which it is contended took
away the prisoners contention that
they acted in self-defense after being
shot at by the officer.