Parham v. 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 ihe indictment was not served on the defendant. — Will Stoudenmeire’s Case, (Ala., Nov. term, 1905) 40 South. 48 ; Bodine’s Case, 129 Ala. 106 . 29 South. 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, 19^5. 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 circum *65 stantial 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 tileries of the state seems to he 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 at Trinity,- and the deceased was with her mother six miles away. A week before the killing the deceased walked to Trinity to see the defendant, he returned with her, .and they spent Saturday night, Sunday and Sunday night at the home of the mother of the deceased, he defendant returning to Trinity on Monday morning. The following Saturday afternoon the deceased went to Trinity on the train, and the. defendant associated with her there. And by his own testimony it was shown that she started in the night to return by foot on the railroad to her mother’s home six miles • distant from Trinity. He testified that he accompanied her a mile and a half on the way until they reached a road or path which he testified turned from the railroad, and led to the home of his father, there he left her, according to his evidence, to go alone in the night, four miles and a half on foot to her destination. Her mangled remains were found the next morning near Hillsboro, about four miles from the point where he testified that he parted from her.

Mrs. Hall, the mother of the deceased, after testifying to the strained relations that existed between the couple, and after testifying about their return from Trinity together on Saturday night and spending the time until. Monday morning together at her home, testified that on that occasion defendant treated the deceased “nicely and kindly,” and when he left her was as pleasant and as nice to her as he could be. On cross-examination the witness was asked this question: “What did he say .to her wlwn *66 lie left, her that morning?” The ruling of the court sustaining an objection to the question may be sustained on the theory that, “the record does not show what answer from the witness was expected, so that this court can pass intelligently on the ruling, and we cannot, therefore, consider it.”- — Tolbert’s Case, 87 Ala. 27 , 36 South. 284 ; Ross’ Case, 139 Ala. 144 , 36 South. 718 . “Furthermore, the question was very general, so much so, that irrelevant evidence would have been responsive to it.”— Ross’ Case, supra. Moreover, it affirmatively appears further on during the cross-examination that the witness testified that defendant, when he left deceased that Monday morning, asked the deceased to come to see to him. So, the question, it seems, was answered. The defendant followed the question above referred to with this one, namely, “Did Emmett (defendant) that morning, in the presence of the deceased, ask you to go with the deceased to Decatur to have some pictures taken?” The question was objected to as being immaterial. The theory of appellant is that proof that he wanted pictures of his wife taken would tend to show an affection on his part for her, and thus tend to disprove that he entertained enmity towards her. To put the court in error it should be made to appear by the bill of exceptions that the evidence sought to be elicted by the question was material. And unless this appears from the nature, of the question, it is the duty of the party excepting to state to the court the answer that he expects. Nor does it plainly appear from the bill of exceptions whether it was the pictures of the wife or of the witness that were referred to by the defendant.

Aubin Williams, a witness for the state, who was section foreman of the Southern Railroad and had been for 15' years, after testifying that he saw the deceased’s body on the railroad on the morning of the 16th of July, and after testifying in detail as to its appearance and the appearance of her clothing, etc., was asked, on cross-examination, this question: “Is it not a part o-f your business as an employe of the Southern Railway, when a person is found dead on the raiload track or killed by the train, *67 to get up evidence in reference thereto for the railroad?” It has been argued that this question was competent for the purpose of showing interest or bias on the part of the witness. It having been shown without dispute that the witness was an employe of the railway company, the jury has this fact before them in weighing his evidence, and whether he had ascertained the facts about which he had testified voluntarily, or because it was his duty “to get up evidence,” would seem to be immaterial- Moreover, the record fails to show that the facts about which he testified “were gotten up by him.”.

It was competent for the state to prove threats made by the deceased, to the effect that if the deceaséd did not quit following him around he was going to kill her. The threats were made a week before the death of the deceased occurred, and might be consdered by the jury as tending to show malice on the part of the defendant, and a disposition to harm her. If the form of the question ivas objectionable (which we do not decide), no harm resulted, as the witnesses gave in detail what the defendant said in that respect. Wilson’s Case, 140 Ala. 43 , 37 South. 93 ; Marler’s Case, 68 Ala. 580 _ There is nothing in the suggestion with reference to the ruling of the court on the admissibility of threats, that the corpus delicti had not been ptoved. If this was necessary before proof of threats was admissible, yet, under the evidence,' it was a jury question. — Vaghan’s Case, 130 Ala. 18 , 30 South. 669 .

Quint Terry, one of the witnesses by whom threats were proved, was a member of the coroner’s jury that investigated the cause of the death of the deceased. On cross-examination, he testified that he said nothing about the threats before the coroner’s jury, that he u as a juror, and not a witness. He was asked if the coroner’s jury was' not instructed and directed to look up all the evidence they could that would bear on the question? The fact that witness knew o'f the threats and did not speak of them at the investigation was the only pertinent inquiry, and was fully brought out, and the instructions to the jury could add nothing to it as a discrediting cir *68 cxxmstance, and while, perhaps, it would not have been error'for the court on cross-examination to have allowed the question, we cannot hold that the court erred in disallowing it.

The grounds of the objection made to the hypothetical question put to the physicians were overcome by proof subsequently made of the weight of the deceased, and that she was pregnant at the time of her death.

The question to Mrs. Hall, “Was she afraid to go about at night wherever she wanted to alone?” was properly disallowed. Poe’s Case, 87 Ala. 65, 6 South. 378 ; Thomas’ Case, 107 Ala. 13 , 18 South. 229 .

The objection to the question propounded to witness Gibson with respect to a pool of water becoming colored, was properly sustained. The question was not confined to the pool testified about by the witnesses, nor were the conditions of the indefinite xdooI shown to be the same as the one testified about.

The instructions given to the coroner’s jury by the coroner could shed no light on the issues involved. Besides, the questions calling for such evidence were leading. No error was committed in sustaining objections to the questions calling for such instructions.

It was the duty of the court to- instruct the jury in resepect of the two degrees of murder. Hence, there is no merit in the exception reserved to the oral charge of the court. — Code 1896, § 4857; Cafford’s Case, 125 Ala. 1 , 28 South. 406 .

Charges A and B, given for the State, assert correct propositions. Jackson’s Case, 136 Ala. 22 , 34 South. 188 ; Winter's Case, 123 Ala. 1 , 26 South. 949 ; McKleroy’s Case, 77 Ala. 95.

In one count of the indictment the means by which the defendant killed the deceased are alleged to be unknown. In the light of this allegation, charge C was properly given for the state.

In so far as charge D asserted a proposition of law it was correct. If the abstract assertion that there is no Such thing as certainty in human affairs is inaccurate it would not infect the charge with reversible error.

*69 Given charge E has been expressly approved in the case of Prater v. State, 107 Ala. 26 , 18 South. 238 . And given charge F was approved in Jackson’s Case, 136 Ala. 22 , 34 South. 188 ; Prater’s Case, supra.

Charge G asserts a correct proposition of law, and was properly given. — McClellan’s Case, 117 Ala. 140 , 23 South. 653 .

Quite a number of charges, 21, were given at the request of the defendant, and 20 were refused to him. Charge 4, refused to defendant, is covered by charge 1, given at his request. • At least he recieved all the benefit under that charge that he would have been entitled to under 4 if it had been given. .

Charges 6, 37, and 41 were properly refused on the authority of the following vases: — Bowen’s Case, 140 Ala. 65 , 37 South. 233 ; Turner's Case, 124 Ala. 59 , 27 South. 272 ; Thomas’ Case, 106 Ala. 19 , 17 South. 460 ; Barnes’ Case, 111 Ala. 56 , 20 South. 565 .

, The defendant received all the benefit under given charges 10 and 15, given at his request, that he would have been entitled to under charges 13 and 16 that were refused. Nothing more than the doctrine of reasonable doubt is asserted in these charges, and it will be observed from reading the charges that were given by the court at the request of the defendant, as shown by the bill of exceptions, that this doctrine was presented in many phases to the jury. And when the doctrine is once presented in a clear-cut charge, we can see no reason for requiring the court to give a dozen or more on the same line, nor do we believe that a multiplicity of such charges tend to enlighten the jury; hut it may be they are not asked for that purpose.

Charges 21. 29 and 32, refused to the defendant, invade the province of the jury and for this reason are vicious.

Befused charge 9 is misleading, and incomplete, in that it does not notify the jury of the “hypothesis” that is referred to-. Moreover, the defendant had the benefit of the principle attempted to be presented by the charge in given charge 5.

*70 Charge 14 was properly refused; it is substantially the same as charge 12 which was given at the request of the defendant.

Charge 26 has been several times condemned by this court.- — Mickle’s Case, 27 Ala. 20 ; Faulk’s Case, 52 Ala. 415 ; Bland’s Case, 75 Ala. 574 ; Thornton’s Case, 113 Ala. 43 , 21 South. 356 , 59 Am. St. Rep. 97 .

Refused charges 27, 28, and 33, besides being otherwise vicious, are mere arguments ,and were properly refused. —Barnes’ Case, 111 Ala. 56 , 20 South. 565 .

Charge 30, while not in the identical language of viven charges 12 and 25, asserts the same proposition, and is substantially a duplicate. The court was under no duty to give it. — 1 Mayfield’s Dig. p. 174 (20).

Charge 34 was properly refused on the authority of Stoball’s Case, 116 Ala. 454 , 23 South. 162 ; Littleton’s Case, 128 Ala. 31 , 29 South. 390 ; Thompson’s Case, 131 Ala. 18 , 31 South. 725 .

Charges 35 and 36 were substantially given in charges 17, and 18, and the court was under no duty to give the refused charges.

Refused charge 40 is a duplicate of given charges 11, and 22.

We have found no error in the record, and the judgment is affirmed.

Affirmed.

Weakley, C. J., and Haralson and Dowdell, JJ., concur.