# Parham v. State > Court of Appeals of Georgia · November 26, 1969 · 120 Ga. App. 723 URL: https://www.frixlaw.com/law-library/cases/9853408 ## Case - **Full name:** Parham v. the State - **Court:** Court of Appeals of Georgia - **Decided:** November 26, 1969 - **Citations:** 120 Ga. App. 723; 171 S.E.2d 911; 1969 Ga. App. LEXIS 911 - **Precedential status:** Published - **Opinion:** Dissent by Whitman - **Judges:** Hall, Bell, Jordan, Eberhardt, Pannell, Deen, Quillian, Evans, Whitman - **Cited by:** 25 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9853408 ## Opinion text Whitman, Judge, dissenting. I dissent from the majority opinion in this case. I would affirm the judgment of the trial court in overruling the motion for new trial as amended. The general grounds of the motion for new trial are not insisted on .and are abandoned. The only ground of the motion is the special ground relating to the charge of the trial court on the question of alibi and the only enumeration of error attacks that portion of the charge on the ground of its claimed unconstitutionality as violative of the due process clause of the Fourteenth Amendment to the Federal Constitution. The portions of the charge involved are set forth in the majority opinion. In reaching the conclusion indicated by this dissenting opinion, I have given consideration to the Georgia decision law, the Georgia statute relating to alibi, and to the Bennett and Stump cases cited and relied on in the majority opinion and the alibi rule and statute of Iowa dealt with in those cases. 1. Georgia decision law. We set forth what we regard as the present state of the law according to the decisions of the Supreme Court of Georgia and of this court relating to the matter of alibi and court instructions on that subject. The latest case in this State is that of Young v. State, decided by our Supreme Court on April 28, 1969, reported in 225 Ga. 255 ( 167 SE2d 586 ). This case is referred to in the majority opinion and also relates to the Due Process Clause in respect of the charge on alibi similar to that given in the case sub judice. In the leading case of Harrison v. State, 83 Ga. 129 (3) ( 9 SE 542 ), decided in 1889, the Supreme Court, in an opinion written by Chief Justice Bleckley, after reviewing a number of *730 cases previously decided as therein set forth, epitomized and expressly approved the law as set forth in the third headnote of that case, as follows: “Touching alibi, the rule in Georgia as established by authority consists of two branches. The first is, that to overcome proof of guilt strong enough to exclude all reasonable doubt, the onus is on the accused to verify his alleged alibi, not beyond reasonable doubt, but to the reasonable satisfaction of the jury. The second is that, nevertheless, any evidence whatever of alibi is to be considered on the general case with the rest of the testimony, and if a reasonable doubt of guilt be raised by the evidence as a whole, the doubt must be given in favor of innocence. In sense and substance, the charge of the court in the present case conformed to the rule, certainly to the latter branch of it.” The Harrison case has been cited with approval and followed in a long line of cases. With the view of not extending unduly the length of this dissent these cases are not enumerated or cited here, but may be found in Shepard’s Annotations to this case. Thus the law of this State dealing with this procedural question has over a period of eighty years become the firmly established guide-line, at least for our State courts to follow. In the Young case, 225 Ga. 255, 256 , supra, the defendant complained of that portion of the charge which stated, “ Alibi,, as a defense, should be established to the reasonable satisfaction of the jury but not necessarily beyond a reasonable doubt.” The appellant-defendant contended that the portion of the charge complained of violated the Due Process Clause of the Fourteenth Amendment of the Federal Constitution in that said charge shifted to the defendant the burden of proving his alibi and deprived him of the presumption of innocence. In respect of such contention the Supreme Court said: “With this contention, we cannot agree.” In the brief of the appellant filed on March 28, 1969, the case of Stump v. Bennett, 398 F2d 111, was relied upon and quoted from at great length, and in the brief by the State of Georgia filed in the Young case on April 11, 1969, the differences in the Iowa and Georgia rules and statutes were pointed out, and reference was also had to the *731 Georgia case of Smith v. State, 3 Ga. App. 803, 806 ( 61 SE 737 ). Thus it must be assumed that in deciding the Young case our Supreme Court gave consideration to the Stump case and the differences between the Iowa law and the Georgia law in respect of the constitutionality of instructions on the subject •of alibi. While, of course, adjudications of the Supreme Court of the United States where pertinent in respect of the exact question decided thereby are absolute and controlling on this court, the decisions of that court or Federal district or circuit courts, although persuasive, are not binding or controlling upon this court where the question for decision here is different from that adjudicated by such other decisions. It is our opinion that unless and until the Supreme Court of the United States decides otherwise in respect of the constitutionality of the Georgia alibi statute, or, if proper, decides upon the constitutionality of an instruction predicated thereon without directly passing on the statute, we are bound to follow the ruling of the Young case as binding and controlling. With due respect to the views of legal scholars and philosophers and authors of legal treatises as to what the law is or ought to be in a State where the statutory law of the State and decisions predicated thereon are expressly and avowedly contrary to such views, the law of this State must prevail and control and be followed in a particular case for adjudication by a court of this State. And so it is here. If any departure from the application of this principle is ever to be made, it must be by virtue of a valid Act of the legislature, or by a controlling and overruling decision by the Supreme Court of the United States and not by judicial legislation. 2. Georgia Statute Law. The present Georgia statute relating to alibi is found in Code § 38-122, which provides: “Alibi as a defense. Alibi, as a defense, involves the impossibility of the accused’s presence at the scene of the offense at the time .of its commission; and the range of the evidence, in respect to time and place, must be such as reasonably to exclude the possibility of presence.” This Code section first appeared in the Code of 1895, Vol. 3, Sec. 992, Penal Code, and later *732 in the Code of 1910, Vol. 2, Sec. 1018, Penal Code, which were adopted, respectively, by Acts approved December 16, 1895 and August 15, 1910, as set forth in Ga. L. 1895, p. 98, and Ga. L. 1910, p. 48. In the case sub judice no attack has been made on the constitutionality of this statute as such. It is upon the basis of this statute that the charge which has been brought into question in this case was given. It is our view that in the absence of an attack on this statute no question as to the constitutionality of the charge has been properly raised. If it is necessary that such attack be made to invoke the question of constitutionality of the charge, and if it could be asserted that no such attack was inadvertently overlooked and has not been waived, it would seem that the remedy of appellant would have been or would be under and by virtue of the Habeas Corpus Act of 1967, approved April 18, 1967 (Ga. L. 1967, p. 835; Code Ann. § 50-127), or under appropriate habeas corpus proceedings in the Federal court. 3. In the majority opinion it is suggested that “the duty to instruct on alibi could be fulfilled by instructing that the evidence presented to prove alibi, considered alone or with all the other evidence, need only be sufficient to create a reasonable doubt of the defendant's guilt. This is a true and simple statement of the law. It is consistent with Georgia Code § 38-122 and could be charged in connection with it.” Except in choice of different words to express the same thought, I am unable to recognize any material difference in legal effect in the language of the charge which the majority opinion suggests would be legally appropriate as compared with the charge actually given; in fact, the charge as actually given appears to be preferable from a legal standpoint, measured by the test of certainty and completeness, than the one proposed as being proper and, therefore, without error. The final and controlling test as to the correctness of the charge is that in order to convict, the jury must be satisfied of the guilt of the accused beyond a reasonable doubt, and the charge as given makes this test predominant and clear, unqualified and unimpaired by the rule relating to the establish *733 ment of the defense of alibi to the reasonable satisfaction of the jury- In my opinion there is a difference between proof by a preponderance of evidence as was required by the Iowa rule and the rule of reasonable satisfaction of the jury as required by the statute of Georgia. That there is a difference is clearly indicated by our Supreme Court in the case of Bone v. State, 102 Ga. 387, 393 ( 30 SE 845 ), cited in the majority opinion, wherein the court said: “Thus it will be seen that the onus to establish the alibi is on the accused; that this not to be established beyond a reasonable doubt, but to the reasonable satisfaction of the jury. The court in this case charged that the burden was on the accused to show their absence by a preponderance of the testimony. The preponderance of the testimony might or might not show the facts of the alleged alibi to the reasonable satisfaction of the jury. Less than a preponderance might do so; more might not. We therefore think that the rule quoted above from Harrison v. State [ 83 Ga. 129 ], is the proper one; that is, the facts of the alibi must be established to the reasonable satisfaction of the jury.” (Emphasis supplied.) I would affirm the judgment of the trial court. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9853408. Public record. Not legal advice.