Smith v. State

• Citation: 57 So. 913,101 Miss. 283
• Court: Mississippi Supreme Court
• Decision Date: 25 March 1912
• Parties: ANNA SMITH v. STATE

57 So. 913

101 Miss. 283

ANNA SMITH v. STATE

Supreme Court of Mississippi

March 25, 1912

October 1911

APPEAL from the circuit court of Yazoo county, HON.W. A. HENRY Judge.

Anna Smith was convicted of vagrancy and appeals.

The facts are fully stated in the opinion of the court.

Judgment reversed and cause remanded.

Holmes & Holmes, for appellant.

The last assignment of error which we care to discuss is with reference to the first instruction given for the state, an instruction right in the teeth of two recent decisions of this court, to-wit: Permenter v. State, 54 So. 949 and Irving v. State, 56 So. 377. The last case was decided by Mr. Justice Smith on the 6th of last month.

The instruction complained of is as follows:

"The court instructs the jury for the state that a person may be proved to be a common prostitute by circumstances, and if the jury believe from the evidence in this case beyond eery doubt that the defendant is a common prostitute, then it is their duty to find the defendant guilty as charged, although there may be no direct evidence of sexual intercourse."

This instruction is more vicious than the ones condemned in the Permenter and Irving cases, supra. It has the defect of omitting "the necessary qualification that circumstantial evidence, in order to prove guilt beyond a reasonable doubt, must exclude every other reasonable hypothesis than that of guilt," and in addition simply says the jury may convict if they believe beyond every doubt omitting the word reasonable.

In the Permenter case, 54 So. 949, the condemned instruction was as follows: "The court charges the jury that circumstantial evidence has been received in every age of the common law, and may arise so high in the scale of belief as to generate full and complete conviction in the minds of the jury of defendant's guilt; and when it does arise so high in the scale of belief as to generate full conviction in the minds of the jury of defendant's guilt beyond a reasonable doubt, then they are authorized to act upon it, and convict the defendant of the crime charged."

In that case this court speaking through Judge Anderson said "This instruction was clearly erroneous. It is substantially the same instruction which was condemned by the court in Williams v. State, 95 Miss. 671, 49 So. 513. The court said of the instruction in that case: 'It is elementary law that a conviction may be had on circumstantial evidence alone, when by it guilt is proven beyond a reasonable doubt; but it is also elementary that, before such evidence can be said to prove guilt beyond every reasonable doubt it must exclude every other reasonable hypothesis than that of guilt. The fatal defect in the instruction is that it authorizes the jury to convict on circumstantial evidence which shows guilt beyond a reasonable doubt, without going further and informing the jury that the evidence must be so strong as to exclude every other reasonable hypothesis than that of guilt; in other words, explaining what, it takes to show where the evidence is circumstantial. This addition to the intention is made necessary by the inherent difference in direct and...