Collins v. State

56 So. 527 | Miss. | 1911

McLean, J.,

delivered the opinion of the court.

The appellant was convicted of murder, and the death penalty imposed. He is not at all satisfied with the result in the court below, and hence his appeal.

The case on the facts is an extremely close one; but, as the case must be tried anew, we abstain from any discussion of the facts, except to say that the difficulty was a sudden one, and that probably Rube Boyd, the appellant’s antagonist, would not have been killed, had he, Boyd, not picked up, or attempted to pick up, immediately before the killing, what the state’s witness denominates as “a big peach tree stick.”

However, we reverse the case upon the sole ground of what we conceive to be improper and damaging references made by the assistant district attorney in his argument to the jury, which were as follows: “This bad nigger killed a good nigger. The dead nigger was a white man’s nigger, and these bad niggers like to kill that kind. The only way you can break up this pistol toting among these niggers is to have a necktie party.” Those who are at all familiar with the favor, indeed, we may say affection, that the white man entertains for a 'l‘white man’s nigger,” can well and justly appreciate the effect that such an unwarrantable statement, made by an officer of the law, will have before the ordinary jury of the land. The appellant may be a bad negro, and a very undesirable member of society, yet he is entitled to go before the jury of the land untrammeled by voluntary epithets, the occasion for which is not shown justified by this record.

One of the attorneys for the state, in making the closing argument, made use of the following language: “I will tell you who employed me to prosecute this nigger. It was the people of the community, white and black.” The defendant then and there objected to this line of argument as tending to prejudice the defendant’s interest, and the court overruled the objection, and the remarks of the prosecuting counsel were repeated, to all of which the defendant then and there excepted. The bill of exceptions shows that “the court declined to ex-elude the above last mentioned language, for the reason that counsel for the defendant in his speech had stated that Abe Robinson, one of the witnesses for the state, had assisted in employing an attorney to assist in the prosecution, and that there were a hundred reasons for his taking an interest in the prosecution.” It may be that the remark made by the counsel for the defendant, was improper, yet this did not justify the court in permitting the state’s counsel in making the line of argument that was made. Two wrongs never make a right. The ordinary, average juror is very easily influenced by a statement to the effect that the people of the community, both white and black, employ one to prosecute. The very fact that this is done is the highest evidence that the community desires the party convicted. There is. nothing so potential in influencing men as public sentiment. Very few people have the courage and backbone either to oppose or to resist public sentiment. It is a trite saying that the voice of the people is the voice of God — “vox popuM, vox Dei.” Can any one say, under such circumstances, the defendant has had that which the Constitution guarantees to every man — a fair and impartial trial? The appellant is a negro, yet he is entitled to be tried by the same rules of law, and he must receive, while upon a trial for his life, the same treatment, as other persons. Common justice and common honesty cry aloud against the treatment shown by this record. While no objection was made at the time by the defendant to the first statement made, yet a special bill of exceptions was taken during the progress of the. trial,' and this matter specially called to the attention of the trial judge and made a ground for a new trial, and is assigned as error.

It was the duty of the trial judge sua sponte. to instruct the jury that such remarks were improper, and that they in their deliberations should not.be governed by any such statements made by the prosecuting officer, Martin v. State, 63 Miss. 505, 56 Am. Rep. 813; Perkins v. Guy, 55 Miss. 153, 30 Am. Rep. 510; Cavanah v. State. 56 Miss. 299; Hampton v. State, 88 Miss. 257, 40 South. 545, 117 Am. St. Rep. 740. The simple fact that the trial judge, occupying, as he does a position of great power and influence, fails to interpose when a damaging-statement is made in Ms presence, and before and to tbe twelve men who are trying the cause, is sub silentio an indorsement of tbe statement — at least, a seeming one. Violators of tbe criminal laws should be vigorously prosecuted, but there is a vast difference between legitimate* prosecution and appealing to race prejudice and to the popular clamor.

Reversed, and a new trial awarded,

Smith, J., dissents.