Clark v. State

• Citation: 59 So. 887,102 Miss. 768
• Court: United States State Supreme Court of Mississippi
• Decision Date: 11 November 1912
• Parties: JIM CLARK v. STATE

59 So. 887

102 Miss. 768

JIM CLARK v. STATE

Supreme Court of Mississippi

November 11, 1912

October 1912

APPEAL from the circuit court of Marshall county, HON.H. K. MAHON Judge.

Jim Clark was convicted of manslaughter and appeals.

The facts are fully stated in the opinion of the court.

Affirmed

W. A Belk, for appellant.

Assignment of error No. 1. In Collins v. State, 56 So. 527, the assistant district attorney used the following language "This bad nigger killed a good nigger. The dead man 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." Other language of the state's attorneys is also quoted in that case. The supreme court in reversing that case said, "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 goverened by any such statements made by the prosecuting officer." See page 528.

The court further said in this Collins case, "The simple fact that the trial judge, occupying as he does, a position of great power, fails to interpose when a damaging statement is made in his presence and before and to the twelve men who are trying the case is, sub silentio, an indorsement of the statement--at least a seeming one." The court then says again, "Can any one say, under such circumstances, the defendant has had that which the Constitution guarantees to every man--a fair and impartial trial?"

Now note the language of the district attorney in the case at bar: "If the jury should turn this nigger loose because he caught his wife in a compromising attitude then there would be five hundred killings in Marshall county in less than ten days." By this argument the district attorney at once paraded before the minds of the jury the weakness of the negro race as to virtue and practically said to them that this weakness is a reason why in this case the defendant should be convicted, adding that they are so weak as to virtue that "if the jury should turn this nigger loose because his wife had been caught in a compromising attitude "then there would be five hundred killings in Marshall county in less than ten days."

He went out of the record to say this. It was done for effect and the effect was obtained. Surely the defendant ought not to be made to "carry so heavy a burden" as the lamented Justice CALHOON was wont to say. It is true he was but a "nigger" but in Hampton v. State, 88 Miss. 259, this court speaking through Judge CALHOON has said "Mulattoes, negroes, Malays, whites, millionaires, paupers, princes and kings in the courts of Mississippi are on precisely the same, exact, equal footing. All must be tried on facts and not on abuse. Only impartial trials can pass the Red Sea of this court without drowning." I insist that the court should have excluded the remarks of the district attorney from the jury even though defendant by his counsel had not objected. But the objection was reasonably made, and yet the court sat quietly by and allowed this argument made. We do insist that the defendant has not had a fair trial.

Assignment No. 2. In the said case of Collins v. State, 56 So 528, this court said, "The appellant is a negro, yet he is entitled to be tried by the same rules of law, and he must receive, while upon trial for his life, the same treatment as other persons." This is but another way of saying just what this court had already said in Hampton v. State, 88 Miss. 259. Yet, remarkable to tell, the trial court refused the defendant the two following charges, viz.: "The court instructs the jury for the defendant that you should try him in this case exactly like you would a white man charged with the same offense under the same circumstances and should render the same kind of a verdict in the case that you would render a white man charged with the same offense." This was charge No. 1. It being refused then the following was drawn and asked and, more wonderful to tell, was likewise refused. "The court instructs the jury for the defendant that in this case he is entitled to be tried by the same rules of evidence and law as if he were a white man." Charge No. 3. Can this or any other court imagine just upon what legal grounds these two charges were refused? I must confess that their refusal completely "took all the starch" out of defendant's counsel. It put him beyond where he was allowed to argue that this "nigger," as the district attorney was allowed to call him in his argument hereinbefore referred to, had a right to be tried according to the law of the land. Now I press my...