Pannill v. Commonwealth

Decision Date10 June 1946
PartiesPANNILL. v. COMMONWEALTH.
CourtVirginia Supreme Court

[COPYRIGHT MATERIAL OMITTED]

SPRATLEY, J., CAMPBELL, C. J., and HOLT, J., dissenting.

Error to Circuit Court, Pittsylvania County; Kennon C. Whittle, Judge.

Henry Pannill was convicted of the murder of his 11 year old daughter, and he brings error.

Judgment reversed and cause remanded.

Before CAMPBELL, C. J., and HOLT, HUDGINS, GREGORY, BROWNING, EGGLESTON, and SPRATLEY, JJ.

P. J. Hundley, of Chatham, and Maitland H. Bustard, of Danville, for plaintiff in error.

Abram P. Staples, Atty. Gen., and V. P. Randolph, Jr., Asst. Atty. Gen., for the Commonwealth.

GREGORY, Justice.

Henry Pannill, the accused, was indicted for the murder of his eleven-year-old daughter, tried by a jury and convicted. His punishment was fixed at death in the electric chair. The court approved the verdict of the jury and sentenced the accused to be put to death by electrocution on July 30, 1945. The judgment of the court is the subject of this writ of error.

The accused, a negro thirty-seven years of age, who resided in Pittsylvania county, had been twice married, and was the father of ten children by his first wife. His first wife divorced him and he was given the custody of his children. One child had died several years ago and another had left home, and at the time of the homicide he was caring for and supporting eight of his children on a small farm. He was illiterate, he could neither read nor write.

On April 19, 1945, his daughter, Louise, who was eleven or twelve years of age, cut his automobile tire with an axe. This was reported to the father who was work ing at the barn. He called Louise to the barn, had her undress, picked up a stick and brutally beat her. This occurred before the noonday meal. The stick was identified and introduced in evidence. The defendant denied the use of this particular stick and claimed that he had switched her with a switch, but the Commonwealth's evidence amply sustains the fact that the stick which was introduced in evidence was the stick which he used. Besides the accused and the deceased there were two eyewitnesses to the whipping, one child eight years old, and another about fourteen years of age. After the whipping Louise went to the house. She stayed around the house during the afternoon and, according to the evidence of the Commonwealth, the accused, in the late afternoon, struck her again at the woodpile.

There was evidence to the effect that Louise fell out of the back door, down several large rock steps, and injured herself, but, as will be seen later, the jury evidently discredited this testimony.

Some time between 8 and 9 o'clock that night Louise died. She was lying on the bed at the time of her death, and she made no statement prior to her death. The evidence disclosed, as will be seen later, that she had died as a result of a fractured skull and the beating which she had received.

After her death the accused secured a casket on April 20th and buried his daughter in a grave which he had dug himself. He was the only person present at the burial.

Mrs. Owen, who is the registrar for that particular district, and whose duty it is to fill out death certificates, testified that the accused applied to her for a permit to bury his daughter; that he stated that he had no undertaker and would bury her himself. She further testified that she told him to go ahead and bury the child.

On April 25th the sheriff and his deputy, along with the coroner, began an investigation. They exhumed the body on that date, which was six days after her death. The body had not been embalmed. This is the account of the coroner as to just what the body disclosed:

"A. Well, when the coffin was opened there was some mold on her face, and she was dressed. She had on a dress and underskirt and stockings, and under her clothes, from her knees clear up over her body, you couldn't lay your hand on her without hitting two or three marks. The marks were as large as your finger and about this long (indicating about four inches), and the skin was slick on these parts, and they were crossed. Some of them had gotten crossways where she had been hit twice, and then there were some single ones, and there were not quite as many on the front as there were on the back. There were several on her arms, and there was one on her right ear--it was terribly bruised--and there was a fracture of the skull up along in this area (indicating) that was indented. You could almost lay a lead pencil in it. It was about, I would say, an inch or inch and a half in length that you could feel under the skin, and she had been struck in the mouth also. Her lips were swollen, and after she was buried--not being embalmed--some of the bruised blood oozed out when I turned her over in the coffin and took her clothes off so I could see her.

"Q. With reference to the back of her body and all, how about those? A. Just those big whelps that had been kind of skinned all over her back and body. It was more, I would say, on the back than was on the front.

"Q. After your examination would you say her death was the result of those injuries you saw? A. Yes, sir, I felt the one in the skull and the beating was the cause of her death."

The coroner's account of the condition of the body was corroborated by the sheriff and the deputy sheriff who were present at the time the body was exhumed and examined. From the testimony of the coroner the conclusion is inescapable that the child had been brutally beaten; that her skull had been fractured, and that she died as a result of these injuries.

The coroner further testified that the fracture of the skull could have resulted from a lick with the stick which was introduced in evidence, and he also said that the injuries he observed upon the girl's body and the injury causing the fractured skull, in his opinion, could not have resulted from a fall from the door down the stone steps.

There are no formal assignments of error, and in this respect, the petition is not in compliance with the rule of this court. However, the death sentence having been imposed, the Attorney General does not insist upon a compliance with the rule.

As previously stated, the accused claimed that his daughter fell down the stone steps, and from the fall received a fractured skull. Her brother, Sam, eight years old, testified that he saw her fall down the steps and that he and Florence carried her into the house and placed her on the bed. No one testified as to any injuries she received from this fall. On the other hand, as we have indicated, the coroner testified that the bruises on her body and the fracture of the skull, in his opinion, resulted from licks struck with the stick. In fact, he measured the fracture by placing his finger in it, and said it was of the size the stick would likely make. The jury, by its verdict, has totally rejected this defense, as it had a right to do. It has accepted the testimony of the coroner, corroborated by the officers, that the child met her death as a result of the brutal beating administered by the accused in which he used the stick which was introduced in evidence.

The accused testified that he whipped his daughter for cutting the tire of his automobile with a brush which he picked up down near the barn and which had been cut while he was cutting down the brush at the barn on that morning. He also stated that he did not whip her very much; that "she ran around and around, and I didn't hit her about the head at all". He further testified that he whipped her around the body, and that he did not hold her as he whipped her. She went to the house after he had finished. He denied that he hit her with a stick. He also denied that he later hit her again at the woodpile.

The accused testified that he purchased a casket for $30 and had a Mr. Carver, who sold him the casket, fill out the papers; he was instructed by Mr. Carver to give thepapers to Dr. Owen or Mrs. Owen, and that he gave them to Mrs. Owen. Mrs. Owen, according to the accused, inquired of whom he had secured the casket, and he informed her that it had been secured from Mr. Carver. He then asked her to fix the papers, and she said "All right". Afterwards the accused returned to his home and buried the child that afternoon at 2 o'clock, at which time it was raining. He buried her on his own land in a field that he had set apart for a cemetery, and he placed a temporary fence around the grave.

The accused testified that he did not notify any of his neighbors because Mr. Over-bey, the sheriff, had instructed him not to mingle with his neighbors for the reason he had previously had trouble with them. He further testified that he had no malice whatever against his daughter and that he never intended and didn't try to hurt her permanently. He stated that he did not have her take her clothes off at the time he whipped her. The jury evidently did not believe his testimony.

Counsel for the accused moved for a change of venire but his motion was denied. He claimed that the general sentiment of the county had been so inflamed by the false newspaper accounts of the homicide that the court would be unable to secure a jury in the county free from bias or prejudice and one that could give the accused a fair trial. One newspaper account related that it was alleged that the accused had beaten his daughter to death with a steel cable. There was no evidence that the accused had used a steel cable, and counsel contends that to print the account in the newspaper suggesting that the accused had used it was unfair and not true, for all of the evidence discloses that he either used a stick or a switch. However, the court, in ruling on the motion, stated that it would examine the jurors carefully and ascertain if they could give the accused a fair trial. This, no doubt, was done, for there is no exception in the record to the qualification of any member of the venire.

Code, sec. 4901 (Mi...

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