Roby v. State

113 So. 185 | Miss. | 1927

* Corpus Juris-Cyc. References: Criminal Law, 16CJ, p. 893, n. 32; p. 896, n. 85; p. 909, n. 51; 17CJ, p. 300, n. 41, 45. The appellant, Mims Roby, and his brother, Dodd Roby, were jointly indicted in the circuit court of Attala county on a charge of murder. A severance was granted, and the appellant was tried on the charge and was convicted of manslaughter, and was sentenced to serve a term of twenty years in the state penitentiary, and from this conviction and sentence this appeal was prosecuted.

The appellant is a negro, and he was indicted and tried for the murder of Reuben Earl Ellis, a white man, and he assigns as error certain language used by counsel representing the state, this language and the action of the court in reference thereto being set forth in a special bill of exceptions, as follows:

"During the argument thereof, Hon. C.E. Morgan, an attorney employed to assist in the prosecution, made use *578 of the following expression, to-wit, `Gentlemen of the jury, a member of this defendant's race is ordinarily a peaceful man, but when he does have trouble with a member of the white race, he gets murder in his heart.' Whereupon, Counsel James T. Crawley, for the defendant, objected and asked the court to direct the jury not to consider the same, which objection the court sustained, and so instructed the jury, and the defendant further asked for a jury and verdict for a mistrial, which the court declined, and the defendant duly excepted. Whereupon Attorney C.E. Morgan then said, `I don't blame him for objecting; if I were representing this defendant for killing this white boy, I'd object to such argument also.' Whereupon counsel again objected for defendant, and asked for a jury and verdict for a mistrial, which the court overruled, and the defendant duly excepted, and Attorney C.E. Morgan then proceeded as follows: `All right, gentlemen; we won't consider that kind of argument any further, but I will argue this, and ask you to consider the fact that this defendant on this occasion used these words: "I'll kill you, you God damned white son of a bitch."'"

While counsel must be allowed a wide latitude in the argument of causes, any language which tends to inject the race issue, or is calculated to engender race prejudice, is highly improper in all cases, and in a close case on the facts is prejudicial, and must result in a reversal, when properly presented on appeal. When counsel for the prosecution said to the jury, "Gentlemen of the jury, a member of this defendant's race is ordinarily a peaceful man, but when he does have trouble with a member of the white race, he gets murder in his heart," counsel for the appellant at once objected, and the court very properly sustained the objection, and instructed the jury to disregard this language. Conceding that the court thereby corrected the error of counsel and rendered it harmless, if this language stood alone, still counsel proceeded with the statement that; "I don't blame him for *579 objecting; if I were representing this defendant, for killing this white boy I would object to such argument also." To this further statement of counsel an objection was promptly interposed and was by the court overruled. This statement of counsel served to emphasize and reinject the former statement that had been excluded, and the objection thereto should have been sustained and the jury properly instructed in regard thereto. This was then followed by the further statement:

"All right, gentlemen, we won't consider that kind of argument any further, but will argue this, and ask you to consider the fact that this defendant, on this occasion, used these words: `I'll kill you, you God damned white son of a bitch.'"

This latter statement does not seem to have been objected to, and probably could not have been properly made the basis of an objection, for the reason that it was based upon testimony in the record. In the connection in which it was used, however, we think it served to emphasize and render more damaging the prior statements of counsel tending to inject into the trial the racial issue. Upon the whole evidence this case is a close one, and for the improper argument and statements of counsel, the judgment of the court below will be reversed and the cause remanded for a new trial.

Reversed and remanded.

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