Convicting the Innocent: Errors of Criminal Justice 
	(1932)
	by Edwin M. Borchard
	Case #4
	
	Payne Boyd
	
	WEST VIRGINIA
One traveling through the southern part of West Virginia on a summer's 
	day will always remember it as a land of contrasts – beautiful rolling 
	hills, the homeland of the "mountaineers," dotted with squalid, colorless 
	mining communities, swarming with laborers who spend most of their time 
	underground picking coal for shipment to the industrial centers of 
	Pennsylvania and Ohio.
	
	In May, 1918, there lived in Modoc, Mercer County, West Virginia, a certain 
	negro miner named Cleveland Boyd. He had been one of the small group of 
	negroes to invade this mining district, which was manned principally by 
	Italian workmen. Boyd had proved himself to be rather a quarrelsome fellow, 
	though he was popular among the negroes. He had won and married Charlie 
	Boston's daughter – a mark of distinction.
	
	When Cleveland Boyd was haled before Squire H. E. Cook on Christmas Eve, 
	1917, and sentenced for participation in a drunken brawl, he boldly 
	threatened that he would get even with the Squire. On May 30, 1918, he was 
	again arrested by the sheriff this time on vagrancy complaints. Squire Cook 
	sentenced Boyd to thirty days' imprisonment (or road work) and fined him 
	$25. As the Squire and the deputy sheriff, A. M. Godfrey, were preparing to 
	take the prisoner to the jail at Matoaka, Boyd made a special plea that he 
	be permitted to go to his home, about a hundred yards up the tracks (the 
	trial was held in the offices of the coal company), to exchange the new 
	shoes he was wearing for older and more comfortable ones. The request was 
	granted. The Squire, deputy sheriff, and prisoner went to Boyd's shack. Boyd 
	entered while the Squire stood on the porch and the deputy sheriff out 
	front. In a flash Boyd reappeared in the doorway firing a revolver. The 
	Squire crumpled, mortally wounded by two shots in the chest, and the deputy 
	sheriff ran for his life.
	
	The shooting attracted attention, but before aid arrived, Cleveland Boyd had 
	fled to the hills.
	
	Squire Cook belonged to one of the oldest and best families of Mercer 
	County, and there was widespread indignation at this cold-blooded murder. 
	The murderer was well known by numerous citizens. A description was prepared 
	and broadcast so that police authorities might be on the lookout.
	
	Six years later, in the spring of 1924, the police of Richmond, Virginia, 
	arrested a negro on an inconsequential minor offense. He gave his name as 
	Payne Boyd of Winston-Salem, North Carolina. As usual, records of persons 
	wanted were checked, and to the surprise of the police, this prisoner fitted 
	the description of Cleveland Boyd which they had received from Mercer 
	County six years before. The Richmond police mailed a photograph of their 
	man to Princeton (Mercer County seat), and the authorities came to identify 
	him. Boyd was lined up in the Richmond jail with other negroes and was 
	promptly identified. Thereupon he was surrendered to the officials of Mercer 
	County and taken to Princeton, where he was lodged in jail on May 2, 1924. 
	The unsolved murder of 1918 was revived as the principal talk of the county. 
	On Sundays and holidays hundreds of people visited the Princeton jail to see 
	the prisoner. Some said that he was positively Cleveland Boyd. Others were 
	absolutely certain that he was not. Many could not be sure, after the lapse 
	of six years. The prisoner always denied that he was Cleveland Boyd, and 
	that he had ever been in Mercer County before. Nevertheless, upon the 
	positive identification of some prominent local citizens, he was indicted 
	for the murder of Squire Cook.
	
	He was brought to trial on February 5-8, 1925, before Judge George L. 
	Dillard in the Criminal Court of Mercer County. Walter V. Ross, the 
	prosecuting attorney, was assisted by special counsel, H. G. Woods, and by 
	A. J. Lubliner, assistant prosecuting attorney. John Kee and C. B. Martin 
	represented the defendant. A verdict of guilty of first-degree murder was 
	returned, but the court set the verdict aside on technical grounds and 
	ordered a new trial. The second trial was held from April 29 to May 2, 1925. 
	A verdict of guilty was again returned and sentence of life imprisonment 
	was pronounced.
	
	In both of these trials the facts concerning the murder committed by 
	Cleveland Boyd were conceded by all. The only issue was whether the prisoner 
	before the court was Cleveland Boyd. Of the twenty-six witnesses introduced 
	by the state, twenty-four testified on matters of identity and swore that 
	they had known Cleveland Boyd in 1917. Eight of these twenty-four persons 
	were positive in their identification of the prisoner – two of them 
	testifying that Cleveland had a scar over his left eye (a remnant of which 
	could be found on the prisoner), and three testifying that Cleveland had a 
	scar under his left jaw (as did the prisoner) resulting from a mule kick 
	while working in the mine. Four of the twenty-four identification witnesses 
	of the state believed that the prisoner was Cleveland Boyd, while the 
	remaining twelve testified that he looked the same, but they were not sure 
	enough of it to swear that he was Cleveland Boyd. The state's witnesses were 
	public officials, mining company supervisors, and some men who had worked 
	with Cleveland Boyd.
	
	The defense called thirty-nine witnesses, thirty-one of whom had known 
	Cleveland Boyd and testified with absolute conviction that the prisoner was 
	not he. Many of the defense witnesses were negroes, admittedly intimate with 
	Cleveland Boyd before he left the community, such as his father-in-law, the 
	minister who married him, persons present at the wedding, neighbors, fellow 
	workmen, etc. They testified as to the points of dissimilarity between the 
	two, as to height, weight, complexion, hair, lips, feet.
	
	The defense, by six additional witnesses from Roanoke and Winston-Salem, and 
	the defendant himself, endeavored to prove that he was Payne Boyd, born and 
	reared in Winston-Salem, and that he had lived in these two cities only. 
	The scar on the prisoner's neck was said to be the result of a childhood 
	attack of scrofula; and the defendant himself testified that the scar over 
	his eye came from a wound received in a stone quarry while with the 
	American army in France. The prisoner was said to have lived in Roanoke and 
	Winston-Salem during the spring of 1918 and up to the date of his enlistment 
	in the army, July 15, 1918. Certified
	copies of Payne Boyd's draft registration card, draft questionnaire filled 
	out in Roanoke before the date of the murder (May 30, 1918), and honorable 
	discharge certificate dated July 16, 1919, were submitted in support of this 
	alibi. The defendant, on the witness stand, denied that he had ever been in 
	Mercer County before and that he had ever been in a coal mine. He had never 
	seen any of the fifty-five witnesses at the trial who had known Cleveland 
	Boyd but who differed about him.
	
	With this evidence before the court it seemed evident that there was a 
	person, Payne Boyd, separate and distinct, from the murderer Cleveland Boyd. 
	The jury had to decide, however:
1. Whether the prisoner was Cleveland Boyd
	  
	(a) and that he really had no connection whatever with Payne Boyd, but was 
	only endeavoring to use the latter's records, or
	  
	(b) that he might have been Payne Boyd before coming into Mercer County in 
	1916, and returned to Winston-Salem to use that name for enlistment in the 
	army on July 15, 1918, after committing the murder on May 30, 1918, and 
	using some other Payne Boyd records for events prior to May 30, 1918.
or
2. Whether the prisoner was Payne Boyd, and had no connection with Cleveland Boyd and the murder of Squire Cook.
As related above, the prisoner was found guilty at both trials, and after 
	the second trial, Judge Dillard imposed a sentence of life imprisonment. An 
	appellate court set the verdict aside, and, upon motion, a change of venue 
	was granted. The next trial was ordered for Cabell County. It was held in 
	October, 1925, in Huntington, before Judge Thomas R. Shepherd. Prosecutor 
	Via of Cabell County joined with Prosecutor Ross of Mercer County in 
	submitting the case.
	
	At about this time Garfield Rose, fingerprint expert of
	the Huntington Police Department, became interested in the case. He took the 
	fingerprints of the prisoner. These were compared with the prints of Payne 
	Boyd on record in the War Department in Washington, and found to be exactly 
	the same. Thus, it was established to the satisfaction of all that the 
	prisoner was Payne Boyd of Winston-Salem and Roanoke, with a war record just 
	as lie had always claimed. Other new data were also received corroborating 
	Payne Boyd's story that he had no connection whatever with Cleveland Boyd. 
	This evidence was all submitted to the Cabell County jury, which returned 
	the following verdict on October 13, 1925: "We, the jury, being convinced 
	that the prisoner at the bar is Payne Boyd and not Cleveland Boyd, find him 
	not guilty. . . ."
	
	Payne Boyd was released immediately, having spent a year and a half in 
	custody and gone through three trials because to some people he looked like 
	Cleveland Boyd.
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It may seem difficult to explain why any jury should have convicted Payne Boyd when, of the fifty-five witnesses produced, only eight were positive that he was Cleveland Boyd. Thirty-one were positive that he was not Cleveland Boyd, twelve said he looked like Cleveland Boyd but they would not swear, and four merely believed that he looked like Cleveland Boyd but entertained doubt. The explanation probably lies in the fact, not unusual in similar cases, that a murder having admittedly been committed it seemed necessary to avenge it, and the prisoner presented a sufficiently close resemblance to the criminal to warrant the jury in resolving any doubt against him. The fact that a change of venue was granted might indicate that the appellate court considered that local prejudice was operating against the accused. Just why the fingerprint method of identification was postponed until the third trial is not easy to understand, for it was available to both sides from the beginning. At least his war service helped Payne Boyd to establish his identity beyond challenge, and with the verification of his other assertions that he had always been in Roanoke and Winston-Salem, especially in May, 1918, when the murder was committed, it became apparent that he could not have been the guilty Cleveland Boyd. It took one and one-half years to establish that fact to the satisfaction of the judicial authorities of West Virginia, during which time an innocent man was incarcerated. Payne Boyd appears never to have been indemnified for the wrongs he suffered at the hands of the people of West Virginia.
	BIBLIOGRAPHY
1. State of West Virginia v. Cleveland Boyd. Record in the office of the 
	Clerk of the Circuit Court, Cabell County, W.Va., containing a 411-page 
	transcript of the trial testimony.
	
	2. Law Order Book No. 30, p. 380, Circuit Court, Cabell County, W.Va.
	
	3. Acknowledgments: Mr. Douglas C. Tomkies, Huntington, W.Va.; Mr. Garfield 
	Rose, Huntington, W.Va.; Mr. L. T. Reynolds, Princeton, W.Va.