Perkins v. State

• Citation: 135 So. 357,160 Miss. 720
• Decision Date: 15 June 1931
• Docket Number: 29429
• Court: Mississippi Supreme Court
• Parties: PERKINS v. STATE

135 So. 357

160 Miss. 720

PERKINS v. STATE

No. 29429

Supreme Court of Mississippi

June 15, 1931

Suggestion Of Error Overrruled, July 10, 1931.

(In Banc.)

1. CRIMINAL LAW.

In murder prosecution, evidence sufficiently disclosed that defendant was not coerced into making confession introduced.

2. CRIMINAL LAW.

Where there has been confession, any corroborative proof showing that crime which accused has confessed is real is sufficient to establish corpus delicti.

3. CRIMINAL LAW.

In murder prosecution, evidence of corpus delicti aliunde confession held sufficient.

4. CRIMINAL LAW.

In murder prosecution, prosecuting attorney's argument that women and children in homes of county called upon jury to do their duty, if error, held not prejudicial.

ANDERSON J., dissenting.

HON GREEK L. RICE, Judge.

APPEAL from circuit court of De Soto county, HON. GREEK L. RICE Judge.

Oscar Perkins was convicted of murder and he appeals. Affirmed.

Affirmed.

Dinkins & Wilroy, of Hernando, for appellant.

In the cases of Harris v. State, 155 Miss. 398, 124 So. 493, and Pitts v. State, 43 Miss. 472, the necessary constituents of corpus delicti are clearly and distinctly stated as consisting of two elements of substantial fundamental facts:

First. The fact of the death of the person charged in the indictment to have been slain.

Second. The fact of the existence of criminal agency as the cause of the death.

Both elements are required to be proved beyond a reasonable doubt by evidence other than extra-judicial confessions.

In the instant case the trial court must have assumed that the circumstances proven were sufficient to justify a finding that Harbin was dead, but such assumption cannot be justified by any decision of this, or any other court that we have been able to find.

All the authorities agree that the dead body must not only be found but identified.

But the facts of death and identity of the body is only one of the essential elements of corpus delicti. The other is the existence of criminal agency as the cause of death, and this must be proven independently and without the aid of an extra-judicial confession.

There is not one scintilla of a shadow of evidence, independent of the alleged confession that Harbin came to his death from criminal agency of any kind.

As to the alleged confession of the defendant, we desire to call attention, without argument, to the following decisions:

Johnson v. State, 107 Miss. 196, 65 So. 218; White v. State, 129 Miss. 182, 91 So. 903; Fisher v. State, 145 Miss. 116, 110 So. 361.

The reference by the district attorney to the defendant as a "nigger" and a "son of a gun," without rebuke from the court, entitles the defendant to reversal, also his appeal for conviction upon the ground that, "The women and children and homes of De Soto county call upon you to do your duty in this case."

Clark v. State, 102 Miss. 768, 59 So. 887.

W. A. Shipman, Assistant Attorney-General, for the state.

The corpus delicti is sufficiently shown to warrant the admission in evidence of the extra-judicial confession of the appellant.

While proof of the corpus delicti is still insisted upon as an essential part of the case, no particular emphasis is laid upon its being established by direct and positive evidence; and circumstantial evidence is by the decided preponderance of authority sufficient to establish the corpus delicti, if it is strong and unequivocal.

1st McClain Crim. Law, 396.

It is not essential that the body of the deceased be found. And where identification is attempted in case of a body which has been partially destroyed, slight clues have been held sufficient in connection with other evidence.

1st McClain Crim. Law, 398.

As to the corpus delicti, the evidence need not be direct, but it may be established by circumstances corroborating the confession, and the confession itself may be considered, together with all the other evidence, to establish the fact that a crime was committed.

2 Wharton, Cr. Ev., section 634, page 1315; 2 Wharton, Cr. Ev., section 894, p. 1681; 2 Wharton Cr. Ev. (10 Ed.), section 941, pp. 1813-1815; Underhill Cr. Ev. (2 Ed.), section 7; Sprouse v. Com. (Ky.), 116 S.W. 344, 68 L. R. A. 33; 2 Bish. New Cr. Procs., sections 1057, 1058.

The death may be proved by direct testimony or by presumptive evidence of the strongest kind, and the criminal agency may be established by presumptive reasoning upon all the facts and circumstances of the case.

Pitts v. State, 43 Miss. 472; Stringfellow v. State, 26 Miss. 157.

The law does not require any more direct or positive proof to identify the body of a murdered man than it does to prove the murder or identify the murderer. Identity may be shown as effectually by inferences from facts as from positive evidence of witnesses who saw the alleged body of the deceased. And it may be established by facts and circumstances sufficiently convincing to exclude reasonable doubt, and the impressions and beliefs of witnesses, based on observation, are competent on the question of identity and it may be established by evidence of general similarity and correspondence between the remains found and the person alleged to have killed; and the identification may be made entirely from clothing or other articles upon or with the person of the deceased, and articles found with the body, as having belonged to the deceased, is competent on the question of identity.

Wharton on Homicide, 910-912; Taylor v. State, 35 Tex. 97; Johnson v. State, 45 Tex.Crim.App. 453, 77 S.W. 15; Wh. Cr. Ev. (7 Ed.), 732; State v. Hansack, 189 Mo. 295, 88 S.W. 21; State v. Dickson, 78 Mo. 438; State v. Knolls, 90 Mo.App. 238; State v. Martin, 47 S.C. 67, 25 S.E. 113; Com. v. Cutaiar, 5 Pa. Dist. Rep. 403; Com. v. Williams, 171 Mass. 461, 50 N.E. 1035; State v. Henderson, 186 Mo. 473, 85 S.W. 576; State v. Smith, 9 Wash. 341, 37 P. 491; State v. Novak, 109 Iowa 717, 79 N.W. 465; Wharton on Homicide, 911-912; People v. Wilson, 3 Park. Cr. Rep. 199; State v. Vincent, 24 Iowa 570; Holland v. Com., 26 Ky. L. Rep. 789, 82 S.W. 598; State v. Williams, 36 Wash. 143, 78 P. 780; Heard v. State, 59 Miss. 545; Dunmore v. State, 86 Miss. 788; Carruthers v. State, 121 Miss. 762; Walker v. State, 127 Miss. 246; Heard v. State, 59 Miss. 545; 2 Wharton Cr. Ev. (10 Ed.) 1316; Patterson v. State, 127 Miss. 256; Garner v. State, 132 Miss. 815; Sykes v. State, 128 So. 753; Donahue v. State, 142 Miss. 20.

The confession of the appellant was properly admitted as competent evidence, after a proper preliminary examination, where it is conclusively shown beyond a reasonable doubt that the confession was freely and voluntarily made.

Hunter v. State, 74 Miss. 515; Williams v. State 72 Miss. 117; Ellis v. State, 65 Miss. 44; Simmons v. State, 61 Miss. 243; Stepney v. City of Columbia, 157 Miss. 193.

The district attorney's argument was not prejudicial.

Shows v. State, 103 Miss. 640; Bufkin v. State, 134 Miss. 116.

Smith, C. J., Anderson, J., dissenting.

OPINION

Smith, C. J.

The appellant was convicted of murder and sentenced to be hung.

The evidence for the state discloses that John C. Harbin, who was sixty-three years of age and in good health, lived alone on a small farm in a one-story four-room house. The appellant, his servant and tenant, lived about three hundred yards therefrom. One of Harbin's customs was to read at night, sitting in a chair leaning against the side of his bed. About ten o'clock one night, his house was discovered by a passerby to be on fire. Several of his neighbors reached the scene shortly thereafter, but the house was too far consumed for the fire to be checked. An odor of burning flesh came from the house, and, when the walls thereof had fallen sufficiently therefor, a human skeleton was seen "with some flesh on the frame of the body" lying across the springs of a bed, and, after the fire had reached a stage to so permit, parts of a skull and other bones, which an undertaker then present said were human bones, were removed from the bed springs. One of the bones still contained portions of burnt flesh. The position of the bones indicated that the body was lying crosswise on the bed springs, the position of which corresponded to the position of the bed in which Harbin slept. Harbin's spectacle case, key ring, and keys were found near the bed springs. Harbin was last seen at his house on the afternoon of the day preceding the night the house was burned.

A witness who lived a short distance from Harbin stated that he arrived at the burning house about ten o'clock that night, and called Perkins, who answered from his (Perkins') house, and, on being asked if he knew Harbin's house was burning, answered, "Yes."

One of Harbin's children, a son, lived about twelve miles from Harbin's resident, and several parties, one of whom was the appellant, while the house was burning, went in Harbin's automobile to this son's residence and told him that the house was burning. The appellant, according to the evidence of his companions, requested to be allowed to get out of the automobile before reaching Harbin's son's house, stating they were driving too fast. They declined to stop for that purpose, and said that they were not driving fast. This the appellant denied.

A few days after the burning of Harbin's residence, the appellant was arrested and carried to Memphis where a daughter of Harbin lived, and was there turned over to the police, who seemed to have advised Harbin's daughter that there was no case against the appellant. The appellant was released, returned to Mississippi, lived for a short while with Harbin's son, and then moved some miles away to a farm owned by a Mr. Bridgforth, where his wife then was.

Some months after...