Petty v. State

• Citation: 35 So. 213,83 Miss. 260
• Court: United States State Supreme Court of Mississippi
• Decision Date: 23 November 1903
• Parties: MILTON PETTY v. STATE OF MISSISSIPPI

35 So. 213

83 Miss. 260

MILTON PETTY v. STATE OF MISSISSIPPI

Supreme Court of Mississippi

November 23, 1903

FROM the circuit court of Washington county. HON. A. McC. KIMBROUGH, Judge.

Petty appellant, was indicted, tried, and convicted of the murder of his wife. and appealed to the supreme court from a sentence to death therefor.

The principal witness for the state was one Chapman, who testified that deceased, Martha Petty, was his sister-in-law and had left defendant's home, and was staying at his house; that on the night of July 22, 1902, about 2 o'clock, some one entered the house, and shot and killed Martha with a shotgun; that at the report of the gun he sprang from his bed, and went to the room where Martha was and he saw defendant running away; that it was a bright night, and the moon shining; that he followed defendant into Bolivar county and arrested him; that he was certain he recognized Petty at the time of the homicide. Other witnesses testified that there had been some trouble between defendant and his wife, and that they heard him tell her two or three weeks before she was killed that he would kill her unless she went back home and lived with him. The defense was an alibi. There were some witnesses who testified for the defense that witness Chapman stated in their presence that he did not know that it was Milton Petty he saw running sway from the house the night of the killing, that he only saw the man while running away and did not recognize him. The defendant offered to prove that he and his wife had become friendly before the killing, and that she was going back to live with him. This was objected to, and the objection was sustained.

The sixth, seventh, and eighth instructions asked by defendant and refused were as follows:

"No 6. The court instructs the jury that unless they believe beyond every reasonable doubt that the witness, Harry Chapman, saw and recognized the defendant on the night of the killing, as stated by him, they will acquit the defendant.

"No. 7. If the evidence in the case leaves it indifferent which of several hypotheses arising and growing out of the evidence in the case is true, or merely establishes some finite probability in favor of the hypothesis of guilt, rather than another, such evidence cannot amount to legal proof of guilt, however great the probability may be.

"No. 8. In the application of circumstantial evidence to the determination of the case, the utmost caution and vigilance should be used. It is always insufficient when, assuming all to be proved which the evidence tends to prove, some other reasonable hypothesis, arising and growing out of the evidence in the cause, than the one sought to be established by the evidence, may be true. It is the result based on the exclusion of every other reasonable hypothesis arising and growing out of the evidence in the case than that sought to be established by it that will authorize the jury to act upon it, and give the circumstances the force of truth in the particular case."

Case reversed and remanded.

Jayne & Watson, for appellant.

The only question presented in this case for the consideration of the court is whether the appellant, Milton Petty, committed the crime with which he was charged and convicted. His defense was an alibi. On the trial of the case, the state was permitted to prove that the appellant had threatened to kill his wife, and the first error assigned by the appellant is that the court below erred in not permitting him to show that at the time of the killing he and his wife were on friendly terms.

If it was proper for the state, as we concede, to undertake to show a motive for the killing, it was equally proper for the defendant to show that the motive contended for by the state did not exist.

Instruction No. 6, asked by defendant, simply told the jury that unless they believed from the evidence beyond every reasonable doubt that witness Chapman saw and recognized the defendant on the night of the killing, as stated by him, they would...