Permenter v. State

• Decision Date: 24 April 1911
• Docket Number: 15,011
• Court: Mississippi Supreme Court
• Parties: SWINTON PERMENTER v. STATE

54 So. 949

99 Miss. 453

SWINTON PERMENTER v. STATE

No. 15,011

Supreme Court of Mississippi

April 24, 1911

APPEAL from the circuit court of Winston county, HON. G. A. MCLAIN Judge.

Swinton Permenter was convicted of murder and appeals.

The facts are as follows:

The appellant was convicted of murder and sentenced to death. He is charged with murdering a young lady, Miss Sharp, a daughter of a neighbor. Appellant and Miss Sharp were near the same age, both minors, and were well acquainted appellant being a frequent visitor to the Sharp home, and according to some of the evidence attentive to the young lady. One afternoon, shortly after dinner, the young lady left her home, going along the country road to a store, where she made a few purchases, and left there with the intention of going by a neighboring house to use the telephone. After leaving the store she was never seen alive again. About dark when she had not put in an appearance at home, the neighbors were aroused, and a search was instituted, in which all the neighbors joined. During the early part of the night the appellant was not seen with the searching party, and he became the object of suspicion. It seems from the record he was not looked upon with favor by the father of the young lady, and had been heard to remark that he would get even with the Sharps and other similar remarks. Later in the night he did join the searching party, and the search continued until daylight, when the body of the young lady was found in a ravine, a short distance from the road. Her skull had been crushed by a heavy instrument of some sort, and her throat had been cut. The crowd was kept back from the body, and during the day, about noon, hounds were put on the trail, and led the searching party to the home of appellant. A question is raised as to the value of the testimony of these hounds because they were shown to be young, and because of the additional fact that it was at least twenty hours after the homicide before they were put upon the trail. The testimony was admitted, however, over the objection of appellant. In appellant's pocket was found a handkerchief, which was identified by the members of the young lady's family as being the one she carried with her the afternoon before. Appellant's brother says the handkerchief was found at a picnic. The evidence against appellant was entirely circumstantial. He did not testify in his own behalf, nor did his parents testify for him; but an alibi was sought to be proven by various parties who testified that they saw him about the time, or perhaps shortly before the time, the crime is supposed to have been committed. The trial resulted in a conviction, and an appeal is taken. Among other errors assigned is the giving of the instruction referred to in the opinion.

Reversed and remanded.

Watkins & Watkins, for appellant.

Instruction number 2 given for the state is fatally erroneous. It instructs the jury that they may convict the defendant if circumstantial evidence generates full conviction in their mind beyond every reasonable doubt.

In the case of Lipscomb v. State, 75 Miss. 577, the court disapproved this language in an instruction, using the following language:

"Full conviction is not the criterion or degree of proof necessary to convict. It is a loose phrase. There is but one rule in law in this state as to the measure and sufficiency of proof which will warrant conviction. It is that the evidence must engender a certainty of belief beyond a reasonable doubt."

In other words, if the court please, the circumstances must be sufficiently strong not to engender full conviction beyond every reasonable doubt, but certainty of belief, excluding every other hypothesis than that of the guilt of the defendant.

An instruction similar to this one was given in Gibson v. State, 76 Miss. 137, but the instruction cured the error pointed out in Lipscomb v. State, and Judge Whitfield approves the instruction, because he says:

"It adds to the clause 'full conviction' the highest degree of moral certainty and to the exclusion of every reasonable doubt."

In other words, the instruction in the Gibson case informed the jury that circumstantial evidence should be weighed with great caution, and, in effect, that it must exclude every theory except that of the guilt of the defendant. Instruction number two for the state in this case does not do so.

The effect of the case of Haywood v. State, 90 Miss. 465, is to hold that a similar instruction to the one now under criticism was not good, because it did not inform the jury that a conviction could not rest on circumstantial evidence, unless every circumstance necessary to convict the defendant was shown beyond every reasonable doubt. The instruction in question is condemned by the Haywood case, because it substituted full conviction for certainty of belief beyond every reasonable doubt, and because it failed to inform the jury that the belief of every necessary fact should be so strong as to exclude every other hypothesis.

In the case of State v. Cohen, 75 Am. St. Rep. 212, an instruction was held erroneous which authorized a jury to convict on circumstantial evidence unless the state shall prove, beyond every reasonable doubt every link necessary to establish the guilt of the accused.

In the case of State v. Trial, 53 S.E. 17, and in the case of Schwantz v. State, 106 N.W. 237, it is held that all the facts and circumstances necessary to convict the defendant must be proved to the same extent as if the whole issue had rested on the proof of each individual circumstance, in cases where it is sought to convict an accused on purely circumstantial evidence.

And we wish to call the attention of the court to the fact that instruction number two given by the state, which we are now criticising, was practically the same instruction condemned in Haywood v. State, 90 Miss. 467, except it eliminated the words that circumstantial evidence was as good as any other kind, and substituted there that it had been used in every age of the common law.

In the case of State v. Johnson, 103 N.W. 565, it is held that an instruction is erroneous which informs the jury that it need not be satisfied beyond all reasonable doubt as to each link in a chain of circumstances relied on to convict.

The same thing is held in the case of State v. Young, 82 N.W. 420.

An instruction is erroneous, it is said, in the case of State v. Sassen, 75 Mo.App. 197, which informs a jury that guilt may be established by circumstantial evidence unless the jury is also informed that evidence must be of sufficient strength to exclude to all moral certainty every other reasonable hypothesis.

The same is held in Cunningham v. State, 77 N.W. 60, and in State v. Hudson, 97 Am. St. Rep. 768.

We contend that the language used in instruction 2 that the circumstances should generate full conviction, was not a correct statement of the law; that the jury should have been instructed that the evidence should have been of sufficient strength to exclude every other hypothesis than that of the guilt of the defendant, and that beyond all reasonable doubt. In other words, that every fact necessary to make the state's chain should have been proved beyond every reasonable doubt, and it was not sufficient merely to generate full conviction from all the facts and circumstances even beyond every reasonable doubt.

The court excluded instruction number 4 asked for the appellant. This instruction was intended to inform the jury, and would have informed them, that circumstantial evidence should be weighed with great caution. It was refused and no other instruction like it was given, and the jury were not instructed upon that important point. The refusal of this instruction was erroneous. Webb v. State, 73 Miss. 461; Pitts v. State, 43 Miss. 486; Nelms v. State, 58 Miss. 362.

We do not know upon what theory this instruction was refused.

The court also refused instruction number 11 asked by the defendant. This instruction would have informed the jury that if there was any fact proven to their satisfaction which was inconsistent with the defendant is guilt, that this raised a reasonable doubt, and that they should acquit the defendant. This instruction was in keeping with well-settled law, that the state should make the evidence so strong as to exclude every hypothesis or every theory other than that of the guilt of the defendant. Therefore, if there was single fact proven and which the jury believed to be a fact, which was inconsistent with the defendant's guilt, why that raised a reasonable doubt, and the defendant should have been acquitted.

In the case of Bowen v. State, 37 So. 233, it is held that the test of the sufficiency of circumstantial evidence in a criminal case is whether the circumstances as proven are capable of explanation upon any reasonable hypothesis consistent with the defendant's innocence, and if they are capable of such explanation, then the defendant should be acquitted.

In Gambrell v. State, 92 Miss. 728, it is held that where there is doubt about the advisability of an instruction being given, the doubt should be solved in favor of the defendant.

If there is a probability of the innocence of the defendant, he should be acquitted. Nelms v. State, 58 Miss. 362.

Before an accused can be convicted by circumstantial evidence, all the facts must be inconsistent with his innocence. Horn v. State, 81 Am. Dec. 500.

The burden of proof rests upon the state to establish the truth of every link in its testimony beyond every reasonable doubt, and the jury should be so instructed. People v. Aiken, 11 Am. St. Rep. 512.

Circumstantial evidence should be so strong as to exclude every hypothesis inconsistent with the defendant's...