Parham v. State

• Decision Date: 30 June 1906
• Citation: 42 So. 1,147 Ala. 57
• Parties: PARHAM v. STATE. [*]
• Court: Alabama Supreme Court

42 So. 1

147 Ala. 57

PARHAM v. STATE. ^[*]

Supreme Court of Alabama

June 30, 1906

Appeal from Circuit Court, Lawrence County; D. W. Speake, Judge.

"To be officially reported."

Emmett Parham appeals from a conviction of murder. Affirmed.

The defendant was indicted for the murder of his wife, Murzy Parham, convicted of murder in the second degree and sentenced to the penitentiary for 20 years. It does not appear from the record what the difference between the copy of the indictment served on defendant and the original indictment consisted in. Motion to quash the venire and the objection of the defendant to being put on trial is stated in the record to be that no true copy of the indictment was served on defendant. The facts relative to the offense are sufficiently stated in the opinion. In his oral charge, the court defines murder in the first degree and then states to the jury that he would also define murder in the second degree as in their discretion they might, under the testimony, find the defendant guilty of murder in the second degree. The defendant objected to the court's defining murder in the second degree and to the statement of the court that the jury might in their discretion, under the evidence in the case, find the defendant guilty of murder in the second degree, and insisted that there were no extenuating circumstances and that the defendant was guilty of murder in the first degree or nothing. At the request of the state, the court gave the following written charges: "(A) I charge you, gentlemen of the jury, if you believe from all the evidence beyond a reasonable doubt that the defendant is guilty, though you also believe it is possible he is not guilty, you must convict him. (B) I charge you, gentlemen of the jury, that the doubt must be actual and substantial, not a mere possible doubt, because everything relating to human affairs and depending on moral evidence is open to some possible or imaginary doubt. (C) I charge you, gentlemen of the jury, that if you believe from the evidence in this case beyond a reasonable doubt that Murzy Parham came to her death at the hands of defendant, it matters not what sort of weapon she was killed with, or how the weapon was used, under the first count of the indictment. (D) I charge you, gentlemen of the jury, that the words 'reasonable doubt' do not mean absolute certainty; there is no such thing as absolute certainty in human affairs. (E) I charge you, gentlemen of the jury, that when a defendant attempts to prove an alibi the burden of proof is upon him to prove it successfully. (F) I charge you, gentlemen of the jury, that if after considering all the evidence you have a fixed conviction of the truth of the charge, you are satisfied beyond a reasonable doubt, it is your duty to convict the defendant. (G) I charge you, gentlemen of the jury, that if you believe from the evidence that the defendant has willfully sworn falsely as to any material matter in this case, you may, in your discretion, disregard his whole testimony."

The defendant requested the court, in writing, to give the following charges which were refused: "(4) I charge you gentlemen of the jury, that the true test of the sufficiency of circumstantial evidence is whether the circumstances as proved produce a moral conviction to the exclusion of every reasonable doubt. If it does not, there should be no conviction. (6) I charge you, gentlemen, that the humane provision of the law is that there should not be a conviction upon the evidence unless, to a moral certainty, it excludes every other reasonable hypothesis than that of the guilt of the accused. No matter how strong may be the facts, if they can be reconciled with the theory that some other person may have done the act, then the guilt of the accused is not shown by that full measure of proof that the law requires. (37) I charge you, gentlemen of the jury, that the humane provisions of the law are that one charged with the crime should not be convicted on circumstantial evidence unless it shows by a full measure of proof, beyond a reasonable doubt, that the defendant is guilty. Such proof is always insufficient unless it excludes, to a moral certainty, every reasonable supposition or hypothesis arising out of all the evidence but that of the defendant's guilt. No matter how strong the circumstances, if they can be reconciled with any theory generated by all the evidence that some one else may have done the act, then the defendant is not shown to be guilty of that full measure of proof the law requires and you should acquit him. (41) I charge you, gentlemen, that the humane provision of the law is that upon the evidence there should not be a conviction unless, to a moral certainty, it excludes every reasonable hypothesis other than that of the guilt of the accused. No matter how strong the facts, if they can be reconciled with the theory that some other person may have done the act, then the guilt of the accused is not shown by that full measure of proof which the law requires. (13) I charge you, gentlemen of the jury, that if you, upon considering all of the testimony, have a reasonable doubt about the defendant's guilt, arising out of any part of the evidence, you should find him not guilty. (16) I charge you, gentlemen of the jury, that you should acquit the defendant unless the evidence excludes every reasonable supposition except that of his guilt. (21) Gentlemen, there is not sufficient evidence before you to authorize a verdict of guilty at your hands. (29) I charge you, gentlemen of the jury, that if you believe the evidence in this case, your verdict should be not guilty. (32) I charge you, gentlemen that there is no evidence before you that the deceased, Murzy Parham, was murdered. (9) I charge you, gentlemen of the jury, that before you are authorized or justified in convicting this defendant the hypothesis should flow naturally from the facts proved and be consistent with all of them. (14) I charge you, gentlemen of the jury, that if after considering all the evidence in the case, your minds are left in a state of doubt or uncertainty as to whether the deceased, Murzy Parham, was killed by the defendant, or by being struck and run over by an engine on the track of the Southern Ry. Co., then you are not satisfied of defendant's guilt beyond a reasonable doubt, and you should acquit him. (26) To convict the defendant, the evidence should be as strong as the positive testimony of one credible witness who proves beyond all reasonable doubt the guilt of the defendant. (27) Gentlemen of the jury, the law says that it is better far that the guilty go unpunished than that the innocent, or those whose guilt is not shown beyond a reasonable doubt, should be punished. (28) It is the theory of the law that it is better for the guilty ones to go without punishing, than that those should suffer punishment whose guilt is not shown by the evidence to a moral certainty and beyond all reasonable doubt. (33) Gentlemen, the law says that it is far better that the guilty should go unwhipped of justice than that the innocent should be punished. (30) I charge you, gentlemen of the jury, that you should carefully examine the whole of the testimony, and that if upon the whole evidence your minds are left in a state of doubt or uncertainty that the defendant is guilty you should acquit him. (34) I charge you, gentlemen of the jury, that if you are reasonably doubtful as to the proof in this case as to any material allegation of the indictment, you must acquit the defendant. (35) I charge you, gentlemen of the jury, that a probability that Murzy Parham came to her death in some other way than by the act of the defendant is sufficient to justify his acquittal. (36) I charge you, gentlemen of the jury, that if there is a probability that Murzy Parham was killed in some other way than by the act of the defendant you should acquit him. (40) I charge you, gentlemen of the jury, that before you can convict this defendant every member of the jury must be satisfied beyond a reasonable doubt of the guilt of the defendant."

G. O Chenault and Lowe & Tidwell, for appellant.

Massey Wilson, Atty. Gen., for the State.

DENSON J.

Emmett Parham was indicted for murdering his wife Murzy Parham. He was convicted of murder in the second degree, and sentenced to imprisonment in the penitentiary for 20 years. From the judgment of conviction, the defendant appealed.

There is no merit in the insistence that a copy of the indictment was not served on the defendant. Will Stoudenmeire's Case (Ala., Nov. term, 1905) 40 So. 48; Bodine's Case, 129 Ala. 106, 29 So. 926.

The mangled remains of the dead wife were found on the track of the Southern Railroad in Lawrence county, at a point near a station called Hillsboro, on Sunday morning, July 15, 1905. It was not disputed that the body of the deceased had been run over and mangled by a train of cars, and the insistence of the state was that the defendant killed her and afterwards placed her body on the track for the purpose of covering up his crime. For the establishment of the insistence, and to show the guilt of the defendant, the state depended upon circumstantial evidence. It was shown that there was a pool of water in a cow pasture not far from the point where the remains of the deceased were found. One of the theories of the state seems to be that the defendant drowned the deceased in that pool, and afterwards placed her body on the track of the railroad. They were a youthful couple, the defendant being 19 and the deceased 17. The evidence showed without dispute that they did not live together in harmony; they had separated two or three times, and at the time of the death of the deceased they were separated, the defendant was staying...