Collins v. State

• Decision Date: 19 February 1894
• Court: Mississippi Supreme Court
• Parties: JEFF COLLINS ET AL. v. THE STATE

15 So. 42

71 Miss. 691

JEFF COLLINS ET AL. v. THE STATE

Supreme Court of Mississippi

February 19, 1894

FROM the circuit court of Lafayette county, HON. EUGENE JOHNSON Judge.

Appellants have been convicted of the crime of unlawful cohabitation. The instruction for the state, the giving of which the court holds was reversible error, is as follows:

"The court instructs the jury that the crime of unlawful cohabitation may be proven by circumstances. It is not necessary for the state to prove by an eye-witness a single act of sexual intercourse, but if the circumstances in proof and the declarations of the parties, if such are in proof are such that from them you conscientiously believe that defendants habitually indulge in sexual intercourse, then the case is fully made out; and, in determining the guilt of defendants, you may take into consideration, if such appears from the testimony, that Jeff Collins is often seen and heard at Susan's house at late hours of the night; that he has been seen leaving at early hours in the morning; that Susan is an unmarried woman and Jeff a married man; that Jeff made [the] trade for the lot where Susan lives; that he paid money for her on said lot, and took receipts for same; that Jeff has carried provisions for Susan, and eats at her table, and has clothes washed by her, and changes Ms clothes at her house, and keeps part of his clothes there; that he sometimes remains, if the facts are established by the evidence, from his wife all night. The jury should consider these and all the facts and circumstances in proof, and arrive at a verdict from a careful consideration of all the evidence in the case."

Reversed.

Kimmons & Kimmons, for appellants.

The first instruction is erroneous, in that it assumes to sum up and comment on the evidence, while, in effect, it is an instruction on the weight of evidence. 63 Miss. 386. The evidence is purely circumstantial, and is insufficient to warrant a conviction. It is impossible to read the testimony without entertaining a reasonable doubt of the guilt of the accused.

J. W T. Falkner, on the same side.

The evidence does not rest on the testimony of eye-witnesses, but is entirely circumstantial. It is wholly insufficient to sustain the verdict.

The first instruction attempts to give a hypothetical statement of the state's testimony, but does not do so fairly and correctly. In several respects its statements of the testimony are directly contrary to what the...