Davis v. State, 8 Div. 766

• Decision Date: 03 December 1936
• Docket Number: 8 Div. 766
• Citation: 172 So. 344,233 Ala. 202
• Parties: DAVIS v. STATE.
• Court: Alabama Supreme Court

172 So. 344

233 Ala. 202

DAVIS v. STATE.

8 Div. 766

Supreme Court of Alabama

December 3, 1936

Certiorari to Court of Appeals.

Paul Davis was convicted of assault with intent to murder and appealed to the Court of Appeals. The judgment of conviction being reversed, the State, by its Attorney General, applies for certiorari to the Court of Appeals to review and revise the judgment and decision of that court in Davis v State, 172 So. 343.

Writ granted; reversed and remanded.

ANDERSON C.J., dissenting.

A.A Carmichael, Atty. Gen., and Wm. H. Loeb, Asst. Atty. Gen for the State.

Henry D. Jones, of Florence, for respondent.

FOSTER Justice.

In his opening argument the solicitor referred to the fracas by saying: "These two negroes were on him, referring to Leon Elkins, and the solicitor further said that the jury should deal harshly with such cattle, (referring to the defendant)." Upon objection being made to a reference to defendant as a "negro" and "cattle," and motion for a mistrial, the court overruled the motion for a mistrial, but admonished the jury in these words: "But, gentlemen of the jury, don't let the remark of the solicitor influence you one way or another in reaching a verdict in this case when he makes any reference to the defendant being a negro or colored or anything of that kind. Justice is blind and I want you to try this defendant just as you would a white man and give him all the rights he is entitled to, or any other man similarly situated would be entitled to. Don't let his color influence you in any way."

The solicitor then said: "The defendant himself brought out that it was a negro fight.

"By Mr. Jones: I move to exclude that statement in the solicitor's argument that the defendant brought out it was a negro fight, and I again move the court to declare a mistrial of this case on account of the solicitor continually referring to the defendant as a negro.

"Court: Overruled.

"Mr. Jones: We except.

"Mr. Hutson: Mr. Jones brought out it was a negro fight.

"Mr. Jones: We object.

"Court: Overruled.

"Mr. Jones: We except. I object every time he refers to him as a negro."

It appears that defendant was a negro, and he and another negro were fighting when Elkins, a white man, interfered. Elkins claimed that defendant then made an attack on him, which is the basis of this prosecution.

It is not every reference to a defendant as a negro, when he is a negro, that would be improper, though the charge was for an attack on a white man. It should appear that it was so made as to emphasize the difference in races, and thereby to appeal to race prejudice. Owens v. State, 215 Ala 42, 109 So. 109. As said in Moulton v. State, 199 Ala. 411, 74 So. 454, the incidents of the trial and its surroundings are important to interpret the probable effect of...