Allison v. State, 25703
| Decision Date | 05 March 1952 |
| Docket Number | No. 25703,25703 |
| Citation | 157 Tex.Crim. 200,248 S.W.2d 147 |
| Parties | ALLISON v. STATE. |
| Court | Texas Court of Criminal Appeals |
M. Gabriel Nahas, Jr., Spurgeon E. Bell, Houston, for appellant.
Sam W. Davis, Criminal Dist. Atty., King C. Haynie, Asst. Crim. Dist. Atty., Houston, George P. Blackburn, State's Atty., of Austin , for the State.
The offense is rape; the punishment, death.
In view of our disposition of this appeal, a statement of facts will not be necessary other than to observe that the appellant was a member of the colored race and the injured party was a white woman.
Bill of exception No. 16 relates to a portion of the argument of the district attorney, to-wit:
The objection was that such argument was not supported by the record, constituted unsworn testimony of the district attorney, and was an appeal to racial prejudice.
The court refused appellant's request that the jury be instructed not to consider the above argument.
The bill further reflects that, during the course of the examination of the witnesses for the appellant, who had testified to an alibi, the district attorney asked three of them if it were not true that they were members of the same race as appellant and, in addition, asked appellant's mother, who had testified that appellant had never before been in trouble, this question:
'You mean he has never been caught for raping a white woman before?'
It is further shown that the prosecutor later asked this witness:
'The next time you saw him he was in jail charged with raping a white woman?'
We think the argument as shown above was subject to the objection that it was unsworn testimony of the district attorney and was an appeal to racial prejudice. Wade v. State, 151 Tex.Cr.R. 447, 208 S.W.2d 101. The implication was clear that State's counsel sought to condemn as a class all testimony coming from members of the colored race. There was no testimony in the record to support such a condemnation.
Judge Morrow in Arnold v. State, 96 Tex.Cr.R. 214, 256 S.W. 919, made a profound observation when he said:
'The truth may come from members of either race, and color alone should not be urged to measure the quality of the testimony.'
In Skuy v. United States, 10 Cir., 261 F. 316, 320, the district attorney 'stated in substance that he did not care how many Jews the defendant brought there to testify, or what they swore to, that he believed * * *.' The Circuit Court of Appeals, in reversing the case, even though no proper objection was made, said that to accept the logical deduction from the attorney's argument 'would in effect disqualify members of the Jewish race from testifying against the testimony of members of another race, because it would render their testimony futile.'
In Tannehill v. State, 159 Ala. 51, 48 So. 662, where the appellant called several Negro witnesses to prove an alibi, as in the case at bar, the district attorney argued that a Negro accused of crime can always prove an alibi by perjured testimony of other Negroes, just as was done in the Wade case, supra. In reversing the conviction, the court said:
'It is the duty of the court to see that the defendant is tried according to the law and the evidence, free from any appeal to prejudice or other improper motive, and this duty is emphasized when a colored man is placed upon trial before a jury of white men.'
In Fontanello v. United States, 9 Cir., 19 F.2d 921, the attorney for the Government, in his argument to the jury, said:
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