Story v. State
133 Miss. 476
Miss.
1923
Check Treatment

Lead Opinion

Holden, J.,

delivered the opinion of the court.

Columbus Story, a negro man, appeals from a conviction and death sentence on a charge of raping Katy Am-mons, a bright mulatto woman, about eleven miles south of Lexington, Holmes county.

We shall omit stating the details of the revolting and nauseating crime as appears from the record, except enough of the occurrence necessary to an understanding of the decision.

Katy Ammons, a teacher and demonstrator in the colored schools of the county, left Lexington going south on the public road in a Ford car going to her work. About eleven miles out she stopped on account of a punctured tire. The appellant, Columbus Story, and a boy, came up and attempted to mend the tire; but failing, he induced her to take a road leading in another direction, sending the boy away to get material with Avhich to mend the tire.

After she and appellant had gone some distance in the road, he took hold of her by the neck and breast, and pulled her out of the car and raped her twice, accompanying his acts Avith ferocious brutality,' repulsive and unnecessary to mention now. She resisted and made outcry, and finally reached home in a mutilated and lacerated condition, as shown by physicians who examined her. While ravishing her, he bit her breasts and body, and “slobbered and spit in her mouth”; and “when I hollered he would say, ‘Hush up, white Avoman; hush up, Avhite woman,’ and had intercourse Avith me,” she testified.

The appellant testified in his OAvn behalf, and admitted practically everything, except he denied having intercourse Avith prosecutrix or that he mistreated her in any way. He said he knew her, and denied saying anything about “hushing up” or that she was raped. There were some slight circumstances corroborating his story. However, the jury was well warranted in finding him guilty as charged.

*483Several grounds for reversal are urged by appellant, but we shall notice but one, which will compel us, reluctantly, to reverse the judgment, and the others may not arise upon a new trial. It is contended that certain language used in the closing argument of prosecuting counsel before the jury was improper and highly prejudicial to the accused, and we cannot escape the conclusion that the point is well taken, because the injury done was not harmless, and may have caused the conviction, or at least may" have resulted in fixing the death instead of life imprisonment. In his closing argument to the jury the counsel for the state said, as shown by the special bill of exceptions:

“I, too, appear in this case without fee as volunteer counsel at the solicitation of the superinténdent of education in this county, to prevent such crimes as this and to make it safe for women to travel over the roads of this county.
“The state diet not cross-examine the defendant, because 1ns looks proved his guilt. Mr. Neilson his attorney says no man could accomplish two rapes in the time and manner testified to by Katy Ammons. He told the truth as to this, for it was not a man but a beast that accomplished and committed this crime. ‘There he is, that human gorilla. What ai'e you going to do with him?- Turn him loose on society.’
“(Thereupon E. T. Neilson, attorney for defendant, objected to the above remarks and personal allusions to defendant and asked action of the court, but the court took no action to which defendant then and there excepted. Mr. A. M. Pepper then continued his denunciation of defendant as a human gorilla, a slobbering wild boar, and a mad dog.)
“Continuing his remarks Mr. Pepper said, among other things, in substance: ‘The evidence shows the defendant while ravishing this woman said to her, “White woman, stop your hollering.” Look at her — she is almost white. This shows you where his passions are leading to.’ (This was objected to by attorney for defendant and the action *484of tbe court called for, but the court took no action other than merely saying, ‘He said what it was leading to.’)
“Further continuing his remarks, Mr. Pepper said in substance, “This is one of the most desperate criminals in this country. Who would feel safe with this man at large? The penitentiary would not hold him a minute. He should not be allowed to breathe the sapie air with you nor the' people of this county or state. Six feet of earth with him under it is his only proper place. There is but one instruction applicable to him, and that is the first part of the first instruction on the form of your verdict which should be returned without any modification, and that is your duty to do and make your return. ‘We the jury find the defendant guilty as charged.’ ”

We think the argument of the prosecuting counsel was improper in many respects and very damaging to the accused. The language used:

“The evidence shows the defendant while ravishing this woman said to her, ‘White woman, stop your hollering.’ Look at her — she is almost white. This shows you where his passions are leading to. (This was objected to by attorney for defendant and the action of the court called for, but the court took no action other than merely saying, ‘He said what it was leading to.’)” — cannot be considered other than an appeal to race prejudice. This was especially harmful to the defendant, and must have borne heavily against him under the particular circumstances. It may have caused the death penalty to be fixed instead of life imprisonment, or possibly an acquittal.

Improper argument of counsel which will materially prejudice the minds of the jury against the accused is a substantial wrong done him in the trial, for which there must be a reversal.

The fair and reasonable deductions and inferences to be drawn and argued from the evidence in the case do not warrant the objectionable language used, so far as showing guilt of the crime now charged, by the prosecuting *485counsel. Such arguments are based upon an immaterial conclusion not legally in the case, and if influential with the jury results in a verdict not obtained solely upon the evidence but upon passion and prejudice engendered by injecting a foreign matter, and thus the accused is denied a fair and impartial trial guaranteed to every human being under the law of the land.

Reversed and remanded.





Dissenting Opinion

Smith, C. J.

(dissenting).

The guilt of the appellant is so manifest that no verdict other than one of guilty could have been rendered by the jury without disregarding both the law and the evidence, and the circumstances surrounding the commission of the crime are such that there is no probability that a milder punishment would have been imposed.

Consequently the error for the commission of which the judgment of the court below is to be reversed was harmless;